This bill outlines eligibility conditions related to expungement of criminal records for victims of human trafficking. As such, this bill permits a person previously arrested or convicted of a crime, as a direct result of being a victim of human trafficking, to file for an expungement or motion to vacate the judgment.
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This bill amended Delaware Code related to expungement of adult arrest and criminal conviction records. As outlined in this bill, cases eligible for expungement include those that were terminated in favor of the accused by reason of a nolle prosequi, dismissal, acquittal or arrests for which no criminal charges were filed.
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Delaware’s Freedom of Information (DFOIA) (Act, 29 Del. C. §§ 10001, et seq.), creates a general right of access to public records of “a public body.” The definition of public body is an agency or court created by the General Assembly. Because most of the states’ courts are constitutionally derived, the Judicial Branch is predominately considered beyond the scope of DFOIA.
Access to criminal history information is governed by statutes and policy related to the state criminal justice information system. Access to court records is governed by the Court Rules on Criminal Procedure. Access to corrections records is governed by statute and policy relevant to the Department of Corrections.
Delaware’s Criminal Justice Information system is known as DELJIS. DELJIS includes extensive information from courts, law enforcement, and prosecutors, in addition to being the informational foundation for many of the state’s criminal justice information servers, websites, and applications. It is also directly tapped into judicial electronic systems, such as the Judicial Information Center and Court Data Transfer. DELJIS is generally overseen by the Delaware Criminal Justice Information System Board of Managers. The State Bureau of Identification (SBI) also collects and maintains certain criminal history record information (CHRI) within the state, which gets reported into DELJIS. The SBI reporting requirements predated the development of DELJIS and, while those requirements are still in place, the DELJIS Board takes primary responsibility for centralized reporting and access to CHRI.
Criminal history record information is defined as “information collected by state or federal 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.” Criminal history information, such as conviction, nonconviction, and arrest information, is not specifically excluded from public access under DFOIA; the standard is that criminal files and criminal records, the disclosure of which would constitute an invasion of privacy, are not deemed public. The turning issue is whether disclosure would be an invasion of personal privacy—since the information in de-identified form is not an invasion of privacy. It is statute relevant to the SBI that makes CHRI non-public. Criminal history information that does not identify a particular individual is not CHRI. DELJIS has threaded this needle by disseminating information that replaces first and last name with a uniform case number, which is unique to individuals.
Though CHRI is not public information, it can be released to qualified individuals or organizations for legitimate research, evaluative, or statistical purposes. DELJIS maintains a process whereby applicants can apply for and information in their systems, subject to project approval by the Board and entering into an agreement that states the information will only be used for the purpose for which it was approved, will not be further disseminated, and other typical use and access-limiting terms. To apply for such access, interested individuals should contact DELJIS directly, as other criminal justice agencies are not permitted to disseminate CHRI. DELJIS still adheres to the rule of not releasing personal identifying information in these applications, users may request the uniform case number as a stand-in.
The Judicial Branch in Delaware is not subject to DFOIA. However, the courts have adopted policies that mirror, in large part, the rights of access found in DFOIA, including a response time of 10 days. Court records are, as is typical, divided into “case records” and “administrative records,” the former being information about actual cases. It is worth noting that the template policy AOC developed theirs from (and to which they link on their website) defines “case record” to include all compilations and aggregations of case information; AOC declined to adopt this holistic definition.
Administrative records may be requested centrally, through the Administrative Office of the Courts. According to Judicial Branch policy. Requests for case record information must still be directed to the court of jurisdiction. In Delaware, this means individuals seeking adult court record information from supra-municipal jurisdictions would need to request from each of the three Superior Courts and fourteen Justice of the Peace courts, which split jurisdiction over adult criminal cases based on type (felonies and drug to Superior; other misdemeanors to Justice of the Peace), each court type has their own rules.
Superior Court Rules dictate that court records should be generally publicly accessible. Criminal history record information (CHRI) contained in court or case records, relating to more than one court will not be disclosed, but case-related records related to proceedings occurring at the Superior Court of request may be disclosed. Requests will be responded to “as promptly as practicable,” though no specific timeframe is specified. Justice of the Peace Courts’ Rules mirror those of Superior Court. Requests for case records must be addressed to the custodian of those records; requests for administrative records should be addressed to the Court Administrator.
The Delaware Department of Corrections is a public body created by the General Assembly and thus subject to the DFOIA public access framework, but its records are predominately exempted from public access. 11 Del. C. § 4233 states that presentence reports, preparole reports, supervision history and all other case records obtained in the discharge of the official duty by any member of the Department are privileged and are not to be disclosed directly or indirectly to anyone other than courts, Boards of Parole and Pardons, the Attorney General, and others entitled by statute to receive such information. The public is not entitled by statute to receive such information and there is no exception for research or evaluative purposes.
Department policy mirrors this framework, and further describes information to be contained in offender case files. Information to be included in offender case files includes six categories of information in addition to basic information such as full name, aliases, date of birth and SBI number: legal, classification, conduct, correspondence, supplemental, and confidential. Legal information includes information related to the courts, sentence, and offender identification, including time served, parole and pardon documents, FBI or SBI identification documentation and pending charge sheet. Classification information includes all offender classification and progress forms, including correspondence related to classification. Conduct information is material related to the offender’s institutional adjustment and program participation including adjustment board information and disciplinary reports. Correspondence refers to correspondence by the offender, including letters sent and received. Supplemental information incudes reports about the offender from other sources including probation and parole summaries, community/religious activities, emergency contact information, and strip search authorizations. Information classified as confidential includes pre-sentence investigation reports (PSI) and/or criminal history or probably cause narratives, psych reports, victim notification letters, and sex offender registration.
The Department does not maintain an online portal for general use to look up offender locations and/or information, and instead directs interested parties to use the Victim Information and Notification Everyday (VINE) system, offered through the National Victim Notification Network.
In 2017, Florida passed ground-breaking legislation to standardize the way the state collects and shares data. The bill proceeded from recommendations MFJ made to the Florida judiciary about the state of its data. Based on that bill and on our extensive experience with data collection, management, and release, we have developed Model Legislation that can serve as a guide to any state legislature invested in improving data and, by extension, its criminal justice system. While MFJ recommends tailoring this Model Legislation to the existing statutory framework and data infrastructure in each state, at minimum, all states need clear mandates regarding the following:
Whereas, complete, accurate, and timely criminal justice data are necessary for implementation and assessment of criminal process;
Whereas, data standards ensure data are consistent, reliable, and comparable;
Whereas, government should provide the public full access to information concerning the conduct of government, mindful of individuals' privacy rights and the desirability of the efficient administration of government.
Therefore, the following should be enacted:
It shall be the duty of the state Department of Justice to collect all data described below from all state and local criminal justice agencies and from any other appropriate source. This includes the following data elements, which shall be collected electronically on a weekly basis from the following persons and agencies:
In order to facilitate the availability of comparable and uniform criminal justice data, the department shall:
MFJ recommends that all states identify a state agency to act as a criminal justice data aggregator and repository for data from local criminal justice agencies across the state. The specific agency serving in this function will vary based on state-specific dynamics and the organizational structure of the state criminal justice system. Below are a set of capabilities that a data aggregator and repository agency should have:
If you’re interested in MFJ assessing your state’s data or want to know more about how to improve data collection, recording, and sharing, please contact us.https://measuresforjustice.org/about/contact