CHAPTER 188

FORMERLY

SENATE BILL NO. 268

AS AMENDED BY

SENATE AMENDMENTS NOS. 1 AND 3 AND HOUSE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 11 AND TITLE 29 OF THE DELAWARE CODE RELATING TO LAW ENFORCEMENT ADMINISTRATION; AND PROVIDING FOR THE REORGANIZATION OF CERTAIN LAW ENFORCEMENT AGENCIES.

RE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 85, Part V, Title 11 of the Delaware Code by striking said Chapter in its entirety, and substituting in lieu thereof the following:

"CHAPTER 85. STATE BUREAU OF IDENTIFICATION

"§8501. Purpose of Chapter

(a) The purpose of this Chapter is to create and maintain an accurate and efficient Criminal Justice Information System in Delaware consistent with Chapter 85 of this Title and applicable federal law and regulations, the need of criminal justice agencies and courts of the State for accurate and current criminal history record information, and the right of individuals to be free from improper and unwarranted intrusions Into their privacy.

(a) In order to achieve this result, the General Assembly finds that there is a need:

1. To designate the State Bureau of Identification as the Central State Repository for Criminal History Record Information;

2. To require the rapid identification, classification and filing of fingerprints;

3. To require the reporting of accurate, relevant, and current information to the central repository by all criminal justice agencies;

4. To insure that criminal history record information is kept accurate and current; and

5. To prohibit the improper dissemination of such information.

6. This Chapter is intended to provide a basic statutory framework within which these objectives can be attained.

§8502. Definitions

The following words, terms and phrases, when used in this Chapter shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

(a) 'Administration of criminal justice' shall mean performance of any of the following activities: detection, apprehension, detention, pre-trial release, post-trial release, prosecution, adjudication, correction supervision, or rehabilitation of accused persons or criminal offenders, criminal identification activities, and the collection, storage, and dissemination of criminal history

record information.

(a) 'Criminal history record information' shall mean information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal criminal charges, and any disposition arising therefrom, sentencing, correctional supervision, and release. The term does not include identification information such as fingerprint records to the extent that such Information does not indicate involvement of the individual in the criminal justice system. Nor shall the term include information contained in

(l) posters, announcements, or lists for identifying or apprehending fugitives or wanted persons;

(2) original records of entry such as police blotters maintained by criminal justice agencies which are compiled chronologically and required by law with long-standing custom to be made public, such records are organized on a chronological basis;

(3) court records of public judicial proceedings;

(4) published court or administrative opinions or public judicial, administrative or legislative proceedings;

(5) records of traffic offenses maintained by the Division of Motor Vehicles for the purpose of regulating the issuance, supervision, revocation, or renewal of driver's, pilot's or other operator's licenses;

(6) announcements of executive clemency.

(c) 'Criminal justice agency' shall mean;

(1) every court of this State and of every political subdivision thereof;

(2) a government agency or any sub-unit thereof which performs the administration of criminal justice pursuant to statute or executive order, and which allocates a substantial part of its annual budget to the administration of criminal justice. Such agencies shall include, but not be limited to, the following:

(1) the Delaware State Police,

(II) all law enforcement agencies and police departments of any political subdivision of this State,

(III) the State Department of Justice,

(IV) the Office of the Solicitor of the City of Wilmington, and

(V) the Department of Correction.

(d) 'Disposition' shall include, but not be limited to, trial verdicts of guilty or not guilty, nolle prosequis, Attorney General probations, pleas of guilty or nolo contendere, dismissals, incompetence to stand trial, findings of delinquency or non-delinquency, and initiation and completion of appellate proceeding.

(c) 'Dissemination' shall mean the transmission of criminal history record information, or the confirmation of the existence or nonexistence of such information. The term shall not include:

(1) internal use of information by an officer or employee of the agency which maintains such information;

(2) transmission of information to the State Bureau of Identification;

(3) transmission of information to another criminal justice agency in order to permit the initiation of subsequent criminal justice proceedings;

(4) transmission of Information in response to inquiries from criminal justice agencies via authorized system terminals, which agencies provide and/or maintain the information through those terminals.

(f) 'Law enforcement officer' shall include police officers, the Attorney General and his deputies, sheriffs and their regular deputies, prison guards, and constables.

(a) 'Release status' shall mean information concerning whether or not an individual is incarcerated and the reason therefor, which shall include but is not limited to information concerning releases on bail, or on-own recognizance, commitments in default of bail, referrals to other agencies, decision of prosecutors not to commence or to postpone criminal proceedings, release from institutions and any conditions imposed concerning those released.

(b) 'Conviction data means any criminal history record information relating to an arrest which has led to a conviction or other disposition adverse to the subject. 'Conviction or other disposition adverse to the subject' means any disposition of charges, except a decision not to prosecute, a dismissal, or acquittal provided, however, that a dismissal entered after a period of probation, suspension, or deferral of sentence shall be considered a disposition adverse to the subject.

(c) 'Nonconviction data means arrest information without disposition if an interval of one year has elapsed from the date of arrest and no active prosecution of the charge is pending; or Information disclosing that the pollee have elected not to refer a matter to a prosecutor, or that a prosecutor has elected not to commence criminal proceedings, or that proceedings have been indefinitely postponed, as well as all acquittals and all dismissals.

§8503. Function; Supervision and Location; Appointment of Director

(a) The State Bureau of Identification, hereinafter referred to as the 'Bureau', is continued within the Division of State Police. The Bureau shall be the central State repository for criminal history record information (CHRI) and such additional information as specified In this Chapter.

(b) Subject to the provisions of this Chapter, the Bureau shall be administered by the Superintendent of State Police. It shall he equipped and maintained by the State Police as a separate budget unit within the Department of Public Safety.

(c) The Superintendent of State Police shall appoint, subject to the approval of the Department of Public Safety, a Director of the Bureau. The Director shall be a regularly appointed member of State Police, who shall be trained and experienced in the classification and filing of fingerprints, and he and all other employees of the Bureau shall be subject to the same rules and regulations governing the State Police.

(d) A representative of the Bureau to be designated by the Superintendent shall be a member of any Board or regulatory body established for the collection, retention, and dissemination of criminal history information.

§8504. Personnel

The Bureau personnel shall consist of regular appointed members of the State Police, and such other personnel as may be deemed necessary to carry out this Chapter. The personnel so appointed shall each be experienced in the work to be performed by them.

§8505. Duty to Provide Security

(a) The Director shall provide for the security of criminal history record information and other information pertaining to crimes and offenders by insuring that the Bureau and all other criminal justice agencies, and agencies providing computer support services to criminal justice agencies which collect, store or disseminate such information, comply with the following provisions:

(1) where computerized data processing is employed, effective and technologically adequate software and hardware designs shall be instituted to prevent unauthorized access to and/or unauthorized additions, changes, or deletions to such information;

(2) access to computer system facilities, systems operating environments, data file contents, whether while in use or stored in a media library, and system documentation shall be restricted to specifically authorized organizations and personnel;

(3) procedures shall be instituted to assure that the facilities of the Bureau provide safe and secure storage of all records;

(4) procedures shall be instituted to assure that an individual agency authorized to access either computerized records or data maintained in manual files by the Bureau is responsible for the physical security of criminal history record Information under its control or in Rs custody and the protection of such information from unauthorized access, disclosure or dissemination;

(5) direct access to criminal history record information shall be available only to authorized officers or employees of a criminal justice agency, as necessary, to other authorized personnel essential to the proper operation of the criminal history record information system;

(8) each employee working with or having access to criminal history record information shall be made familiar with the substance and intent of this Chapter.

§8506. Duty to Maintain Complete and Accurate Records and Performance of Annual Audit

(a) The Bureau shall maintain in a complete and accurate manner information received pursuant to this Chapter to the maximum extent feasible.

(b) Any and all criminal history record and other information which is transmitted directly by computer terminal by a criminal justice agency shall be deemed to have been transmitted to the Bureau within the meaning of this Chapter.

(c) The Bureau shall file all information received by It and shall make a systematic record and index thereof, to the end of providing a method of convenient reference and consultation. No information Identifying a person received by the Bureau may be destroyed by it until 10 years after the person identified is known or reasonably believed to be dead, except as otherwise provided by statute.

(d) A criminal justice agency shall, upon finding inaccurate criminal history record information of a material nature, notify all criminal justice agencies, and all other persons and agencies, known to have received such information.

(e) When a criminal justice agency receives notification that an inaccuracy appears in criminal history record information having originated with that agency, such agency shall take appropriate steps to correct the inaccuracy.

(0 The Bureau shall assure that an annual audit is conducted of a representative sample of agencies accessing or maintaining data files as provided in this Chapter. This audit shall encompass both manual and computerized data systems, and shall be conducted at such time and according to procedures as the Bureau shall prescribe. A full report of the findings of each audit made pursuant to this subsection shall he communicated to the individual agency so audited.

§8507. Information to be Supplied by Law Enforcement Officers

(a) Every law enforcement officer of the State and of any political subdivision thereof shall transmit to the Bureau/

(1) within 48 hours after the arrest of any individual, the names, fingerprints if taken and such other data as the Director may from time to time prescribe of all individuals arrested for a criminal offense, including, but not limited to:

(i) an indictable offense, or such non-indictable offense as is, or may hereafter be,

included in the compilations of the United States Department of Justice,

(ii) being a fugitive from justice.

(2) the fingerprints, photographs and other data prescribed by the Director concerning unidentified dead persons;

(3) the fingerprints, photographs and other data prescribed by the Director of all individuals making application for a permit to buy or possess illegal weapons or firearms or to carry concealed a deadly weapon;

(4) a record of the indictable offenses and such non-Indictable offenses as are committed within the jurisdiction of the reporting officer, including a statement of the facts of the offense and a description of the offender, so far as known, the offender's method of operation, changes in release status and such other information as the Director may require;

(5) copies of such reports as are required by law to be made, and as shall be prescribed by the Director, to be made by pawnshops, second-hand dealers and dealers in weapons.

(h) All photographs submitted of individuals described in this section shall he of a recent date, taken while such individuals are attired in civilian clothes.

§8508. Information to be Supplied by Court Officials

Every court of this State or of any political subdivision thereof other than Family Court having original or appellate jurisdiction over indictable offenses, or over such non-indictable offenses as are herein mentioned, shall transmit to the Bureau in such manner as the Director shall designate such information regarding every indictment, information, or other formal criminal charge, and every change in release status, disposition and sentencing made thereof within 90 days of said action. The Family Court shall be required to transmit to the Bureau information regarding those proceedings charging a juvenile with delinquency which were Initiated by petition of the Attorney General. Such information shall likewise be transmitted in such a manner as the Director shall designate within ninety (90) days of said action.

§8509. Information to be Supplied by Heads of Institutions

Every person in responsible charge of an instituion to which there are committed individuals convicted of crime, or persons declared to be not guilty by reason of mental illness or declared incompetent to stand trial for criminal offenses, shall transmit to the Bureau the names, fingerprints, photographs and such other data prescribed by the Director, of all individuals so committed and shall report any subsequent change in release status. Every person in responsible charge of such institutions shall also forward to the Bureau the names and photographs of all individuals who are to be discharged from such institutions, after having been confined in such institutions. Such photographs shall be taken immediately before release of such individuals, and he or she shall be attired in civilian clothes.

§8510. information to be Supplied by the Department of Correction

The Department of Correction shall within 48 hours, transmit to the Bureau:

(a) the names, fingerprints, photographs and other data prescribed by the Director, concerning all persons who are received or committed to such penal institution, or who are placed on parole or probation for any offense. Such photographs shall be of a recent date, and taken while such individuals are attired in civilian clothes;

(b) the names and photographs of all prisoners who are to be released or discharged from such institutions, after having been confined in such institutions. Such photographs shall he taken immediately before release of such persons, and he or she shall he attired in civilian clothes;

(c) notice of all paroles granted, revoked, or completed, changes in release status, conditional releases, commutations of sentence, pardons, and deaths of all persons described in subsections (a) and (b) of this section.

§8511. Required Information

If no time period is prescribed in this Chapter for the submission of information to the Bureau, the information required shall be submitted within such time period and in such manner as the Director shall designate.

§8512. Access to Institutions and Public Records

Any employee of the Bureau, upon written authorization by the Director, may enter any correctional center or mental institution to take or cause to be taken fingerprints or photographs or to conduct Investigations relative to any person confined therein, for the purpose of obtaining information which may lead to the identification of criminals; and every person who has charge or custody of public records or documents from which it may reasonably be supposed that information described in this Chapter can be obtained, shall grant access thereto to any employee of the Bureau upon written authorization by the Director or shall produce such records or document; for the inspection and examination of such employee.

§8513. Dissemination of Criminal History Record Information

(a) Upon application, the Bureau shall furnish a copy of all information available pertaining to the identification and criminal history of any person or persons of whom the Bureau has a record to

(1) criminal justice agencies and/or courts of the State or of any political subdivision thereof or to any similar agency and/or court in any Stnte or of the United States or of any foreign country for purposes of the administration of criminal justice and/or criminal justice employment;

(2) any person or his attorney of record who requests a copy of his or her own Deladvare criminal history record, provided that such person:

(I) submits to a reasonable procedure established by standards set north by the Superintendent of the State Police to identify one's self as the person- whose record this individual seeks, and

(II) pays a reasonable fee as set by the Superintendent, payable to the Delaware Stnte Police;

(3) the State Public Defender when he requests information about an individual for whom he is attorney of record.

(b) Upon application, the Bureau shall, based on the availability of resources and priorities set by the Superintendent of State Police, furnish information pertaining to the identification and criminal history of any person or persons of whom the Bureau has a record, provided that the requesting agency or individual submits to a reasonable procedure established by standards set forth by the Superintendent of the State Police to identify the person whose record is sought. These provisions shall apply to the dissemination of criminal history record information to:

(1) individual; and public bodies for any purpose authorized by Delaware State statute or executive order, court rule or decision or order;

(2) individuals and agencies pursuant to ,1 specific agreement with a criminal justice agency to provide services required for the administration of criminal justice pursuant t) that agreement. Said agreement ;hall embody n User Agreement as prescribed in 58514;

(3) individuals and agencies for the express purpose of research, evaluative., or statistical activities pursuant to a specific agreement with a criminal justice agency. Said agency sti:d, embody a User Agreement as prescribed in §8514;

(4) individuals and agencies for purposes of international travel;

(5) individuals and agencies required to provide a security clearance for matters of national security.

(c) Upon application the Bureau may, based upon the availability of resources and priorities set by the Superintendent of State Police, furnish information pertaining to the identification and conviction data of any person or persons of whom the Bureau has record provided that the requesting agency or individual submits to a reasonable procedure established by standard set forth by the Superintendent of State Police to identify the person whose record is sought. These provisions shall apply to the dissemination of conviction data to

(1) Individuals and agencies for the purpose of employment of the person whose record is sought, provided:

(I) the requesting individual or agency pays a reasonable fee as set by the Superintendent, payable to the Delaware State Police, and

(II) the use of the conviction data shall be limited to the purpose for which it was given.

(2) members of the news media, provided that the use or conviction data shall be limited to the purpose for which it was given, and

(1) the requesting media or news agency pays a reasonable fee as set by the Superintendent, payable to the Delaware State Police.

(d) Dissemination of criminal history record information by any person or agency other than the Bureau or its designee is prohibited. This provision shall not prohibit dissemination by any criminal justice agency in those cases in which time is of the essence and the Bureau is technologically incapable of responding within the necessary time period. Under such circumstances the foregoing rules concerning dissemination are to be adhered to.

(e) Appropriate records of dissemination shall be retained by the Bureau and criminal justice agencies storing, collecting and disseminating criminal history record information to facilitate audits. Such records shall include, but not be limited to, the names of persons and agencies to whom information is disseminated and the date upon which such information is disseminated.

(f) Unless otherwise specified by the court order directing that a record be sealed, such sealing shall not preclude dissemination of the arrest or conviction information concerning the subject of the court order, nor shall it preclude dissemination of the fact a scaled record exists, providing any dissemination made is pursuant to the provisions of this Chapter and Chapter 43 of this Title.

§8514. User Agreements

(a) Use of criminal history record information disseminated to non- criminal justice agencies shall be restricted to the purpose for which it was given.

(b) No criminal justice agency shall disseminate criminal history record information to any person or agency pursuant to §8513 (a)(3) and (b)(1), (2) and (3) unless said person or agency enters into a User Agreement with the Bureau, which agreement shall:

(1) specifically authorize access to the data or information;

(2) limit the use of the data or information to purposes for which it was given;

(3) insure the security and confidentiality of the data or information consistent with this Chapter.

(c) An individual or agency which has entered into a User Agreement as prescribed by subsection (b) of this section, and which knowingly or recklessly violates the terms of that agreement, shall be guilty of a Class A misdemeanor and shall be punished according to the provisions of Chapter 42 of this Title. Upon such violation, the User Agreement shall be terminable at the option of the Bureau.

§8515. Furnishing Information of Injured or Deceased Persons

If a law enforcement officer or the Office of the Chief Medical Examiner transmits to the Bureau the identification data of any unidentified deceased or injured person or any person suffering from loss of memory, the Bureau shall furnish to such officer or Office any information available pertaining to the identification of such person.

§8516. Furnishing Information without Application

Although no application for information has been made to the Bureau as provided in §8513 of this Title, the Bureau may transmit such information as the Director, in his discretion, designates to such persons as are authorized by §8513 of this Title to make application for it and as are designated by the Director.

§8517. Local Assistance

(a) At the request of any officer or official described in §8507, §8509 and §8510 of this Title, the Superintendent of State Police may direct the Director to assist such officer:

(1) in the establishment of local identification and record system;

(2) in investigating the circumstances of any crime and in the identification, apprehension and conviction of the perpetrator or perpetrators thereof, and for this purpose may detail such employee or employees of the Bureau, for such length of time as the Director deems fit; and

(3) without such request the Director shall, at the direction of the Governor, detail such employee or employees, for such time as the Governor deems fit, to investigate any crime within this State, for the purpose of identifying, apprehending and convicting the perpetrator or perpetrators thereof.

(b) The Governor may, in his discretion, delegate to the Secretary of Public Safety the powers, duties or functions set forth in this section.

§8518. Scientific Crime Detection Laboratory

To the end that the Bureau may be able to furnish the assistance and aid specified In §8517 of this Title, the Superintendent of the State Police may direct the Director to organize in the Bureau and maintain therein scientific crime detection laboratory facilities.

§8519. Certified Copies of Records

Any copy of a record, picture, photograph, fingerprint or other paper or document in the files of the Bureau certified by the Director or his designee to be a true copy of the original shall be admissible in evidence in any court of this State in the same manner as the original might be.

§8520. Annual Report

The Director shall submit to the Superintendent of State Police an annual report of the conduct of his office. This report shall present summary statistics of the information collected by the Bureau.

§8521. Access to Files

Only employees of the Bureau and persons specifically authorized by the Director shall have access to the files or records of the Bureau. No such file or record or information shall be disclosed by any person so authorized except to officials as in this Chapter provided.

§8522. Authority to take Fingerprints, Photographs and Other Data

(a) To the end that the officers and officials described in §8507, §8509, §8510 and §8525 of this Title may be enabled to transmit the reports required of them, such officers and officials shall have the authority and duty to take, or cause to be taken, fingerprints, photographs' and other data of persons described in such section. A like authority shall be had by employees of the Bureau who are authorized to enter any institution under §8512 of this Title, as to persons confined in such institutions.

(b) Every person arrested for a crime or crimes enumerated in §8507 shall submit to being fingerprinted, photographed, and shall supply such information as required by the Superintendent. Whoever shall fall to comply with this section shall be guilty of a Class A misdemeanor and shall he punished according to the provisions of Chapter 42 of this Title.

§8523. Penalties

(a) Whoever intentionally neglects or refuse; to nnke any report lawfully required of him under this Chapter, or to do or perform any other act so required to be done or performed by him, or hinders or prevents another from doing an act so required to be done by such person, shall be guilty of a Class A misdemeanor and shall be punished according to the provisions of Chapter 42 of this title.

(b) Any person who knowingly mid wrongfully dostrays or falsifies by addition or deletion tiny computerized or manual record of the flurcau or of a criminal Justice agency, which contains criminal history record information, or who knowingly permits another to do so, shall be guilty of a Class E felony and shall be punished according to the provisions of Chapter 42 of this Title.

(c) Any person who knowingly provides CHRI to another for profit is guilty of a Class E felony and shall be punished according to Chapter 42 of this Title.

(d) Any person who knowingly provides criminal history record information to a person or agency not authorized by this Chapter to receive such information or who knowingly and wrongfully obtains or uses such information shall be guilty of a Class A misdemeanor and shall he punished according to the provisions of Chapter 42 of this Title.

(e) Conviction of a violation of this section shall be prima facie grounds for removal from employment by the State or any political subdivision thereof, in addition to any tine or other sentence imposed.

§8524. Construction of Chapter

Nothing in .this Chapter, or amendments- adopted pursuant thereto, shall provide the basis for exclusion or suppression of otherwise admissible evidence in any proceeding before a court, or other official body empowered to subpoena such evidence.

§8525. Information Voluntarily Supplied by Individuals

Whenever a person appears before any of the officers mentioned in §8507 of this Title, and requests an impression of his fingerprints, such mentioned officer shall comply with the request, and make at least two (2) copies of the impressions on forms supplied by the Bureau. One copy shall be forwarded to the Federal Bureau of Investigation at Washington, D.C., and one copy shall be forwarded promptly to the Bureau, subject to §8513 of this Title, together with any personal identification data obtainable. The Bureau shall accept and file such fingerprints and personal identification data submitted voluntarily by such resident in a separate filing system, for the purpose of securing a more certain and easy identification in case of death, injury, loss of memory or change of appearance.

Approved October 21, 1981.