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Hiding in Plain Sight: New York's Address Confidentiality Program

November 10, 2011

Author: Amy Schwartz

Over the last decade, New York lawmakers have demonstrated their ongoing appreciation for the connection between domestic violence and a victim’s increased need, not only for physical protection, but also for privacy safeguards.  This growing body of law provides victims with essential safety planning tools that allow them to both keep their whereabouts concealed and participate more fully in society, such as exercising the right to vote and engaging the legal system. 1  The most recent addition to this mix is New York’s long-awaited passage of an Address Confidentiality Program law. 2

Conceived and created in Washington State approximately 20 years ago, 3  Address Confidentiality Programs (ACP) provide participant victims the ability to have their mailing address remain anonymous by providing a substitute address to use in lieu of their actual address for mailing, public records, and service of process.  Given usage of the substitute address, an abuser trying to locate an ACP participant would be unable to determine what community the victim actually resides in.  The ACP also provides mail forwarding service to the participant’s real, geographical address.  ACPs are not “witness protection programs” intended to hide participants or change their names or Social Security numbers.  The programs are also not intended to shield participants from financial or legal responsibilities.  There are now approximately 34 such state-run ACP programs in operation nationwide, including New York.

New York’s Secretary of State (Secretary) has been directed to implement and oversee this new program.  More comprehensive guidance from that agency is, therefore, expected.  Until such time, this article describes the program, as generally detailed by the new statute.



When Will the Law Go Into Effect?

The bill was signed into law on September 23, 2011. 4  As the Secretary needs time to prepare for administration and implementation of the program, the law will become effective on June 23, 2012. 5 



When Will Forms or Other Guidance Become Available?

The statute provides that ACP-related forms, as well as the rules and regulations necessary to implement the law, must be promulgated by the Secretary on or before June 23, 2012, the law’s effective date. 6 



Who Can Apply? 7

The ACP is limited only to victims of domestic violence and is not more broadly available to victims of stalking, sexual abuse or other types of crimes.  Participants may include: 

  • Adult victim of domestic violence
  • Parent or legal guardian acting on a minor’s behalf
  • Incapacitated victim’s legal guardian on that person’s behalf. 


Victim parents may apply on behalf of their minor children in their household. 8  While the statute is not clear, it appears that victim parents would need to individually apply for each potential participant in the family.  The law directs a parent or legal guardian to apply on a minor’s behalf, however, if the primary victim of domestic violence is a youth (i.e. teen dating violence), it is not clear whether a court-appointed guardian ad litem could instead apply on the youth’s behalf where no other willing, appropriate, or available parent or legal guardian existed.  Victims otherwise incapacitated by illness or disability may access this program through their legal guardian.                
  

Who Will Be Considered a “Victim of Domestic Violence” Under this Program?

Section 108(1)(a) of the new law utilizes the broad definition of “victim of domestic violence” contained in the Social Services Law.  Amended in 2011 9 , Social Services Law §459-a defines “victim of domestic violence” to include:   

  • any person over the age of 16
  • any married  person
  • any parent accompanied by his or her minor child or children in situations in which such person or such person's child is a victim


Additionally, as detailed below, the abuser’s conduct must have subjected the victim to one or more violations or  crimes, and the victim must have suffered actual physical or emotional injury or a substantial risk of physical or emotional harm as a result.  While the law enumerates a list of offenses the victim may have been subject to, it also clearly states that the list is not exhaustive or otherwise limited.  Therefore, a victim could have been the subject of rape, burglary, trespass, financial crimes, identity theft, or any other crime, as long as the offender was related as a member of the victim’s “family or household”.  Accordingly, the above categories of persons must have been the victim of:

  • an act which would constitute a violation of the penal law, including, but not limited to acts  constituting  disorderly  conduct,  harassment, aggravated harassment,  sexual  misconduct,  forcible  touching,  sexual abuse, stalking,  criminal  mischief,  menacing, reckless endangerment, kidnapping,  assault,  attempted  assault,  attempted  murder,  criminal obstruction of breathing or blood circulation, or strangulation; and
  • such  act  or  acts have resulted in actual physical or emotional injury or have created a substantial risk of physical or emotional harm to such person or such person's child; and
  • such act or acts are or are alleged to have been committed by a “family or household member”


“Family or household member” is further defined as: 

  • persons related by consanguinity (blood) or affinity (marriage)
  • persons legally married to one another
  • persons formerly married to one another, regardless of whether they still reside in the same household
  • persons who have a child in  common,  regardless  of  whether  such  persons are married or have lived together at any time
  • unrelated  persons  who are continually or at regular intervals living in the same household or who have in the past continually or at regular intervals lived in the same household
  • persons  who are not related by consanguinity or affinity and who are or have been in an “intimate relationship” regardless of whether such persons have lived together at any time.  Factors that may be considered in determining whether a  relationship  is  an  "intimate  relationship“ include,  but  are  not  limited to: the nature or type of relationship, regardless  of  whether  the  relationship  is  sexual  in  nature;  the frequency  of  interaction  between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between  two  individuals in business or social contexts shall be deemed  to constitute an "intimate relationship";
  • unrelated persons who have had intimate or continuous social contact with one another and have access to one another’s household.  10


Under this legal definition, victims of previous or current abuse can be considered for participation, as well as victims of intimate partner abuse in same-sex relationships. 


What is the Application Process? 11

Participation in an ACP will begin with the filing of an application with the Secretary.  The application must be completed on the form(s) created by the Secretary and filed pursuant to their specific directions.  The application must include a signed, written statement made under oath affirming 12 that:

  • The applicant is a victim of domestic violence
  • The applicant has left his or her residence because of domestic violence
  • The applicant fears for his or her own safety, his or her children’s safety, or the minor/incapacitated person’s safety
  • Where a representative is applying on a minor or incapacitated victim’s behalf, the representative must affirm their legal authority to act on that victim’s behalf    


As part of the application, the applicant or the victim’s representative must also sign and date a form: 13

  • Designating the Secretary as agent for service of process and receipt of mail
  • Providing an actual mailing address and telephone number where the applicant can be contacted by the ACP
  • Listing the address(es) that the applicant requests not be disclosed because of the increased risk of domestic violence


Individuals, or representatives of any designated office, who assisted in the preparation of the application must be named and, along with the applicant, must also sign the application. 14  

Upon receipt of a properly completed application, the Secretary must certify the applicant as a program participant.15   It appears that official participants will then be given an identification card confirming their ACP program certification status. 16     


Can a Victim Get Assistance Completing An ACP Application?

Presumably, the application process will be sufficiently user-friendly, allowing potential participants to apply to the program without need for significant assistance.  However, ACP applicants may want or need information, support, or counseling related to the application process, safety planning, and/or the abuse.  To that end, the new law authorizes the Secretary to designate and train state, local, or non-profit domestic violence service providers to assist ACP applicants. 17   Because domestic violence service providers are already serving victims of abuse, they are in an excellent position to both identify appropriate potential ACP participants, as well as sensitively and comprehensively assist them with their application process and other needs. 

Interestingly, the law makes it clear that counseling or assistance provided to ACP applicants, served either by the Secretary or authorized domestic violence agencies, shall not be construed as legal advice, presumably limiting their potential liability for the unauthorized practice of law. 18          

  
Who Must Accept the ACP Substitute Address? 19

ACP participants can request state or local agencies accept and use the substitute address in lieu of their actual street address.  Public records may be created and maintained with an ACP address.  Accordingly, this substitute address can be used in such public records as motor vehicle registrations and driver’s licenses/identification cards, library cards, birth records, public school enrollment, marriage licenses, state-based student loans, public assistance benefits applications/recertifications, and other state governmental records.  Existing public records may also be modified to include the person’s substitute ACP address. 

Recognizing the possibility that some state or local agencies may need to know the ACP participant’s actual address in order to meets its obligations, under limited circumstances, the Secretary has the ability to waive the agency use and acceptance requirement where it is determined that:

  • The state or local agency has a bona fide statutory or administrative requirement to use the ACP participant’s actual address, and
  • The state or local agency has explained how acceptance of an ACP address will undermine the agency’s existing legal obligations and why a change in internal procedures would not allow statutory or administrative obligations to be met.  


Agencies receiving such waivers must, however, maintain the ACP participant’s address by redacting the actual address where the record is released.  Further, the ACP participant’s actual address shall not be made available for inspection or copying unless requested by law enforcement for a legitimate law enforcement purpose or if directed by court order.      

ACP participants may also use their substitute address as a work address. While the law specifically requires employers and state or local agencies to accept an ACP address, it does not require others beyond these groups to accept this address. 20     


How Does Mail or Service of Process Get Forwarded to the ACP Participant? 21

Immediately upon receipt of a participant’s service of process or mail, the Secretary will then forward the documents and correspondence to the participant’s actual address and record the date of such mailing. 22  “Mail” includes first class letters, including priority, express, or certified mail delivered by the US Post Office.  Mail or packages clearly marked as being from a government agency or pharmaceuticals will also be forwarded.  Other packages, parcels, catalogues, or periodicals will not be forwarded and participants, seemingly, must make other arrangements for receipt of these items.  Department of State staffers who reasonably and in good faith handle a participant’s service of process or mail in accordance with the law will be immune from civil liability. 23         


How Long Does Certification in the ACP Last?

Program participants are certified for four (4) years following the date of filing, unless the certification is withdrawn or cancelled before the expiration date. 24 

Certifications may be renewed per statute. 25  However, the law itself does not provide specific substantive standards or procedures for granting renewals and, instead, directs the Secretary to promulgate further administrative rules and regulations to address this issue.


Can Certification Be Cancelled? 26

Yes.  If the applicant applies using false information, the certification must be cancelled.  Certification must also be cancelled where the four-year certification term expired and no renewal application was submitted. 

Other events may trigger cancellation of certification.  By law, cancellation can result if, after the passage of 14 days:
   

  • The ACP participant legally changes his/her name and fails to notify the Secretary of the name change
  • The ACP participant changes his/her actual address and fails to notify the Secretary of the address change
  • Mail forwarded to the participant’s actual address is returned to the Secretary as undeliverable


Where there is a cancellation, the Secretary must send notice to the participant and must include the reasons for cancellation.  The participant has 30 days to appeal a cancellation decision.  Procedures regarding such appeals will be further developed by the Secretary, presumably detailing the administrative and/or judicial review process.   

May An ACP Participant Withdraw From the Program? 27 

Yes.  A program participant may exit the program simply by sending the Secretary written notice and returning their program identification card.  Recognizing concerns that another person (such as the victim’s abuser) may attempt to fraudulently de-enroll the participant, the Secretary is directed to establish a secure procedure for ensuring that requests for withdrawal are, indeed, legitimate.      

Is Information about a Person’s Participation in the ACP Publicly Available?
 
Records and documents pertaining to ACP participant are not public. 28   Further, all documents related to a participant will be retained and held confidential by the Secretary for three years after their participation in the ACP terminates. 29   After three years, the records will then be destroyed. 30

Apart from the substitute address, the Secretary is not permitted to disclose the ACP participant’s actual address for inspection or copying, subject to several statutory exceptions: 31

  • If requested by law enforcement for a legitimate law enforcement purpose; or
  • Pursuant to a court order directing the disclosure of a participant’s address to a specific person named in the order and detailing the reasons there for 32 ; or
  • To verify the participation of a specific ACP participant (and in this case, the Secretary may only confirm information supplied by the requester)


Will the ACP Program Be Evaluated?

Yes, to a limited extent.  Each year, the Secretary must submit a report to the state legislature detailing by county the number of applications received, the number of ACP participants, and the number of pieces of mail forwarded. 33 

Empire Justice Center applauds the Legislature and the Governor for green-lighting this program in New York.  Laws making it more difficult for abusers to track down the location of victims are critical and invaluable safety planning tools.  We look forward to learning more about the ACP’s implementation and use statewide.  

     
  1. For a comprehensive listing of New York’s confidentiality protections for domestic violence victims, see:  http://www.empirejustice.org/issue-areas/domestic-violence/case-laws-statues/confidentiality/new-york-laws-involving-the.html
  2.  L.2011, Ch.502.  Notably, versions of this law passed both houses of the legislature, but were ultimately vetoed by Governor Paterson in 2009 (Veto 48) and 2010 (Veto 16764).
  3.  Wash. L.1991, C.23
  4.  L.2011, Ch. 502
  5.  Id.
  6.  Id.
  7.  Exec. Law §108(2)
  8.  Exec. Law §108
  9.  L.2011, Ch. 11.
  10.  18 NYCRR §§408.2, 462.2
  11.  See generally Exec. §108(2)
  12.  Exec. §108(2)(A)(I-V)
  13.  Id.
  14.  Exec. §108(2)(A)(V)
  15.  Exec. §108(2)(D)
  16.  Exec. §108(5)(E)
  17.  Exec. Law §108(3)
  18.  Id.
  19.  Exec. Law §108(4)(A-B),(D)
  20.  In a November 3, 2009 memo (FIN-2009-R003), the Department of the Treasury’s Financial Crimes Enforcement Network determined that the federal Bank Secrecy Act requires financial institutions to form a reasonable belief that it knows the true identity of its customers, including gathering a residential street address.  Addressing the ACP substitute address conundrum, the memo states that the rules permit the customer to alternatively provide the residential street address of next of kin or another contact individual.  Accordingly, per this memo, the Secretary of State may be properly considered “another contact individual” for ACP participants.
  21.  Exec. Law §108(1)(D)
  22.  Exec. Law §108(4)(C)
  23.  Exec. Law §108(4)(E)
  24.  Exec. Law §108(2)(E)
  25.  Id.
  26.  Exec. Law §108(5)(A-D)
  27.  Exec. §108(5)(E)
  28.  Exec. §108(5)(F)
  29.  Id.
  30.  Id.
  31.  Exec. §108(6)(A-C)
  32.  In 2003, New Jersey’s highest court determined that a court order directing an ACP to release a child-participant’s address to the other parent should be based upon the best interests of the child. Sacharow v. Sacharow, 826 A.2d 710, 722 (2003)
  33.  Exec. §108(8)

       


 





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