DELAWAREÂ - A new Delaware law taking effect Oct. 21 will limit when state and local law enforcement agencies can release the names and photographs of adults charged with crimes, changing how information about arrests is shared with the public.
House Bill 59 will prohibit law enforcement agencies from releasing or publishing the name or photograph of an adult charged with a crime unless the person is charged with a felony and the disclosure is necessary to protect public safety.
Both conditions must be met before an agency can release identifying information. The restrictions apply to state and local law enforcement agencies but do not directly apply to courts, federal agencies or news organizations.
In an Oct. 7 memo released Oct. 14, Mat Marshall, director of external affairs for the Delaware Department of Justice, outlined how the department plans to interpret the law, including circumstances in which identifying information may still be released.
The memo states that the law creates uncertainty because it does not define several key terms, including what constitutes a public safety necessity.
When can police release identifying information?
Under the new law, law enforcement agencies will be prohibited from releasing the names or photographs of adults facing misdemeanor charges, regardless of the nature of the offense or potential public safety concerns.
For felony cases, agencies must determine whether identifying the defendant is necessary to protect the public. The DOJ's guidance identifies active warrants for violent felonies, credible threats to public safety and concerns about unidentified victims as circumstances that may justify disclosure.
The guidance also addresses defendants held in Level V correctional facilities. The department generally considers incarceration at that level a reason to withhold identifying information because the defendant is already in custody. However, exceptions may be considered when investigators believe additional victims have not been identified.
For nonviolent felonies, the department recommends evaluating whether other circumstances justify disclosure.
What information can still be released?
The law does not prohibit agencies from releasing general information about arrests or criminal investigations without identifying defendants. Police may still disclose details such as the nature of the charges and a defendant's age, provided the person's name and photograph are withheld.
The DOJ's memo also states that the department interprets the restrictions as applying to people with active criminal charges rather than those whose cases have been resolved.
Under that interpretation, convictions, guilty pleas and sentencings would fall outside the law's restrictions.
How will the law affect news reporting?
The changes could also affect how reporters obtain information from law enforcement. The DOJ's guidance states that agencies should decline to identify or confirm the identities of defendants in cases where disclosure is prohibited.
However, the law does not directly restrict news organizations from publishing identifying information obtained through other lawful sources. Courts also remain outside the new restrictions on law enforcement disclosures.
The department recommends that agencies consult legal counsel when determining whether disclosure is permitted in cases where the law's requirements are unclear.
The new restrictions take effect Oct. 21.
