CHAPTER 368

FORMERLY

SENATE BILL NO. 336

AS AMENDED BY

SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 11, CHAPTER 43, RELATING TO DEPARTMENT OF CORRECTION RECORDS.

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

Section 1. Amend 11 Del. C. §4322 by adding a new subsection (f) thereto as follows:

“(f) Any subpoena issued for any record of the Department of Correction, or for any record of its employees maintained in the course of their duties, shall comply with the following procedure:

(1) The subpoena shall be issued at least 30 days in advance of the date on which production of the records is due.

(2) A copy of the subpoena shall be served on the State Solicitor..

Any subpoena issued without compliance with the requirements of this section shall be deemed void ab initio. Any such subpoena shall be reasonably limited in quantity with regard to the purpose for production and the issuer of the subpoena shall tender payment for the cost of the photocopying as established by the Department.”

Section 2. Amend 11 Del. C. §4322 by adding a new subsection (g) thereto as follows:

“(g) Any subpoena issued for any record of the Department of Correction, or for any record of its employees maintained in the course of their duties, in a civil action between private parties shall comply with the following procedure:

(1) Where the information sought may reasonably be expected to be in the possession of one of the parties to the litigation, as well as in the possession of the Department, the information shall first be sought from the party to the litigation having possession of the information.

(2) Prior to seeking criminal history records from the Department, the party seeking the information shall first attempt to obtain criminal history information through proper procedures at the State Bureau of Identification, pursuant to 11 Del. C. §8513.

(3) Any subpoena issued under this subsection shall meet the requirements of subsection (f) above.”

Section 3. Amend 11 Del. C. §4322 by adding a new subsection (h) thereto as follows:

“(h) (1) Any subpoena or summons issued for testimony of any official or employee of the Department of Correction shall be issued at least 30 days in advance of the date on which the testimony is due, and a copy of the subpoena or summons shall be served on the State Solicitor.

(2) Any subpoena or summons issued for testimony of any official or employee of the Department of Correction, where the substance of the testimony would involve information contained in the records of the Department, shall comply with the requirements of subsection (f) above, and the subpoena or summons shall be deemed a subpoena for the Department’s records. The Department or its Deputy Attorney General shall notify the issuer when a subpoena or summons for testimony is deemed a subpoena for records and subsection (f) applies.

(3) The requirements of this subsection apply to both criminal and civil actions and in all courts.”

Section 4. Amend 11 Del. C. §4322 by adding a new subsection (i) thereto as follows:

“(i) Notwithstanding any language in this section or elsewhere to the contrary, the time requirements in this section regarding the issuance of subpoenas shall not apply to any subpoena issued in:

(1) any criminal proceeding in which the penalty of death is sought by the prosecution;

(2) any civil or criminal case where the issuing party has less than 45 days notice of the trial date; or

(3) if the party issuing the subpoena can show that the late subpoena was issued as a result of information provided by the State less than 45 days prior to the trial date.”

Section 5. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Approved July 6, 2006