HB 278: "An Act relating to privacy, to private genetic information, to the rights of employees related to electronic monitoring by employers, and to certain consumer information; and amending Rule 26, Alaska Rules of Civil Procedure."
00HOUSE BILL NO. 278 01 "An Act relating to privacy, to private genetic information, to the rights of 02 employees related to electronic monitoring by employers, and to certain consumer 03 information; and amending Rule 26, Alaska Rules of Civil Procedure." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. The uncodified law of the State of Alaska is amended by adding a new 06 section to read: 07 FINDINGS. The legislature finds that 08 (1) an individual's genetic information is uniquely private and personal 09 information that should not be collected or disclosed without that individual's authorization; 10 (2) an analysis of an individual's DNA (deoxyribonucleic acid) provides 11 information not only about an individual, but also about that individual's parents, siblings, and 12 children, thus implicating family privacy; and 13 (3) uniform rules for the collection, storage, and use of identifiable DNA 14 samples and private genetic information obtained from them are needed both to protect
01 individual privacy and to permit legitimate genetic research. 02 * Sec. 2. The uncodified law of the State of Alaska is amended by adding a new section 03 to read: 04 PURPOSE. It is the purpose of the legislature in secs. 1 - 3, 7, and 8 of this Act to 05 (1) define the circumstances under which DNA samples may be collected, 06 stored, and analyzed; 07 (2) define the circumstances under which private genetic information may be 08 created, stored, and disclosed; 09 (3) define the rights of individuals whose DNA samples are collected, stored, 10 and analyzed; 11 (4) define the rights of individuals whose private genetic information is stored 12 and disclosed; 13 (5) define the responsibilities of persons who collect, analyze, and use DNA 14 samples and the genetic information derived from them; and 15 (6) establish effective mechanisms to enforce the rights and responsibilities 16 defined in this Act. 17 * Sec. 3. AS 18 is amended by adding a new chapter to read: 18 Chapter 14. Genetic Privacy. 19 Sec. 18.14.010. Collection of DNA samples. (a) A person may not collect 20 or cause to be collected an individually identifiable DNA sample for genetic analysis 21 without the written authorization of the sample source or the sample source's 22 representative. 23 (b) Before collecting a DNA sample from a sample source for genetic analysis, 24 the person collecting the sample or causing the sample to be collected shall orally 25 inform the sample source or the sample source's representative 26 (1) that consent to the collection or taking of the DNA sample is 27 voluntary; 28 (2) that consent to the genetic analysis is voluntary; 29 (3) of the information that can reasonably be expected to be derived 30 from the genetic analysis; 31 (4) of the use, if any, that the sample source or the sample source's
01 srepresentative will be able to make of the information derived from the genetic 02 analysis; 03 (5) of the right of the sample source or the sample source's 04 representative to inspect records that contain information derived from the genetic 05 analysis; 06 (6) of the right of the sample source or the sample source's 07 representative to have the DNA sample destroyed; 08 (7) of the right of the sample source or the sample source's 09 representative to revoke consent to the genetic analysis at any time before the 10 completion of the analysis; 11 (8) that the genetic analysis may result in information about the sample 12 source's genetic relatives that may not be known to those relatives but could be 13 important, and, if so, that the sample source will have to decide whether to share that 14 information with relatives; 15 (9) that, in the future, a person may ask if the sample source has 16 obtained genetic testing or analysis and condition a benefit on the disclosure of 17 information regarding the testing or analysis; 18 (10) that the collection and analysis of the DNA sample and the private 19 genetic information derived from the analysis are protected by this chapter; and 20 (11) of the availability of genetic counseling. 21 Sec. 18.14.020. Analysis of DNA samples. (a) Genetic analysis of an 22 individually identifiable DNA sample is prohibited unless specifically authorized in 23 writing by the sample source or the sample source's representative. 24 (b) A person may not analyze an individually identifiable DNA sample without 25 ascertaining that written authorization for the analysis has been obtained. 26 Sec. 18.14.030. Ownership and destruction of DNA samples. (a) An 27 individually identifiable DNA sample is the property of the sample source. 28 (b) The sample source or the sample source's representative has the right to 29 order the destruction of the DNA sample. 30 (c) An individually identifiable DNA sample must be destroyed upon 31 completion of genetic analysis by the person collecting or storing the sample unless
01 (1) the sample source or the sample source's representative has directed 02 otherwise in writing; or 03 (2) all individual identifiers linking the sample to the sample source are 04 destroyed. 05 Sec. 18.14.040. Notice of rights and assurances. A person who collects or 06 stores DNA samples for genetic analysis shall, before the collection, storage, or 07 analysis of a DNA sample, provide a sample source or a sample source's 08 representative and any other person upon request with a notice of rights and assurances 09 that contains the following information and assurances: 10 (1) a DNA sample will only be used as authorized in the written 11 authorization; 12 (2) an individually identifiable DNA sample is the property of the 13 sample source; 14 (3) unless specifically prohibited by the sample source or sample 15 source's representative, researchers may be granted access to a DNA sample that 16 cannot be linked to an individual identifier; 17 (4) the sample source or the sample source's representative has the 18 right to order the destruction of the individually identifiable DNA sample at any time; 19 (5) the individually identifiable DNA sample will be destroyed on the 20 completion of the analysis unless the sample source or the sample source's 21 representative has previously directed otherwise in writing; 22 (6) the sample source can designate another individual as the person 23 authorized to make decisions regarding the individually identifiable DNA sample after 24 the death of the sample source, and, if a person is so designated, the sample source 25 shall notify the facility in which the DNA sample is stored; 26 (7) the sample source or the sample source's representative has the 27 right to examine the records containing private genetic information, to obtain copies 28 of the records, and to request correction or amendment of them; 29 (8) private genetic information may be disclosed to private researchers 30 who qualify for access under this chapter; 31 (9) the collection and analysis of the DNA sample and the private
01 genetic information derived from the analysis are protected by this chapter, and a 02 person whose rights under this chapter have been violated may seek civil remedies, 03 including damages; and 04 (10) genetic counseling is available. 05 Sec. 18.14.050. Disclosure of private genetic information. (a) Except as 06 provided in AS 18.14.090, a person who, in the ordinary course of business, practice 07 of a profession, or rendering of a service, creates, stores, receives, or furnishes private 08 genetic information may not, by any means of communication, disclose private genetic 09 information except in accordance with a written authorization as provided in 10 AS 18.14.060. 11 (b) Redisclosure of private genetic information that has been disclosed to any 12 person under a valid written authorization is prohibited. 13 (c) Private genetic information maintained by a public agency is confidential 14 and is not a public record under AS 09.25.110 - 09.25.140. 15 Sec. 18.14.060. Authorization for disclosure of private genetic information. 16 (a) To be valid, an authorization for disclosure of private genetic information must 17 (1) be in writing, signed by the sample source or the sample source's 18 representative and dated on the date of the signature; 19 (2) identify the individual granting authorization and the individual's 20 relationship to the sample source; 21 (3) identify the person permitted to make the disclosure; 22 (4) describe the specific genetic information to be disclosed; 23 (5) identify the person to whom the information is to be disclosed; 24 (6) describe the purpose for which the disclosure is being made; 25 (7) state the date upon which the authorization will expire, which, in 26 no event, shall be later than 30 days after the date of the authorization; and 27 (8) include a statement that the authorization is subject to revocation 28 at any time before the disclosure is actually made. 29 (b) A copy of the authorization for disclosure of private genetic information 30 shall be provided by the person obtaining the authorization to the sample source or the 31 sample source's representative.
01 (c) A sample source or the sample source's representative may revoke or 02 amend the authorization, in whole or in part, at any time. 03 (d) A sample source may not maintain an action against a person for disclosure 04 of private genetic information made in good faith reliance on a valid authorization if 05 the person did not have notice of the revocation of the authorization at the time the 06 disclosure was made. 07 (e) Each disclosure made with the written authorization described in (a) of this 08 section must be accompanied by the following written statement: "This information 09 has been disclosed to you from confidential records protected under AS 18.14, and any 10 further disclosure of the information without specific authorization is prohibited." 11 (f) A general authorization for the release of medical records or medical 12 information may not be construed as an authorization for disclosure of private genetic 13 information. 14 Sec. 18.14.070. Inspection and copying of records containing private 15 genetic information. (a) A person who maintains private genetic information shall, 16 upon written request, permit the sample source or the sample source's representative 17 to inspect records containing private genetic information and shall provide a copy of 18 the records upon request by the sample source or the sample source's representative. 19 (b) Upon receipt of a written request from a sample source or the sample 20 source's representative to inspect or copy all or part of records containing private 21 genetic information, a person, as promptly as required under the circumstances but not 22 later than 30 business days after receiving the request, shall either make the 23 information available to the sample source or the sample source's representative for 24 inspection during regular business hours or provide a copy, if requested, to the 25 individual. 26 (c) A person shall provide an explanation of terms and any code or 27 abbreviations used in records containing the private genetic information upon request 28 of the sample source or the sample source's representative. 29 (d) A person may charge a reasonable fee, not to exceed the person's actual 30 duplication cost, for copies of records that are provided. 31 Sec. 18.14.080. Amendment of records. (a) Within 45 days of receipt of
01 a written request by the sample source or the sample source's representative to correct 02 or amend, in whole or in part, a record containing private genetic information, a person 03 who maintains records containing private genetic information shall, if the information 04 is not accurate or complete for the purposes for which the person may use or disclose 05 it, 06 (1) make the correction or amendment requested; 07 (2) inform the individual that the correction or amendment has been 08 made; 09 (3) make reasonable efforts to inform any person to whom the 10 uncorrected or unamended portion of the information was previously disclosed of the 11 correction or amendment that has been made; and 12 (4) at the request of the individual, make reasonable efforts to inform 13 any known source of the uncorrected or unamended portion of the information about 14 the correction or amendment that has been made. 15 (b) If a correction or amendment of a record is refused, the person maintaining 16 the records shall inform the sample source or the sample source's representative of 17 (1) the reasons for the refusal of the person to make the correction or 18 amendment; 19 (2) the procedure, if any, for further review of the refusal; and 20 (3) the right of the sample source or sample source's representative to 21 file with the person a concise statement setting out the requested correction or 22 amendment and the individual's reasons for disagreeing with the refusal of the person 23 to make the correction or amendment. 24 (c) After a sample source or the sample source's representative has filed a 25 statement of disagreement under (b)(3) of this section, in any subsequent disclosure of 26 the disputed portion of the information, the person maintaining the records 27 (1) shall include a copy of the individual's statement; and 28 (2) may include a statement of the reasons for not making the requested 29 correction or amendment. 30 Sec. 18.14.090. Compulsory disclosure of private genetic information. (a) 31 A person who maintains private genetic information may not be compelled to disclose
01 the private genetic information under a request for disclosure in any judicial, 02 legislative, or administrative proceeding unless 03 (1) the person maintaining the private genetic information has the 04 authorization of the sample source or the sample source's representative to release the 05 information in response to the request for disclosure; 06 (2) the sample source or the sample source's representative is a party 07 to the proceeding, and the private genetic information is at issue; or 08 (3) the private genetic information is for use in a law enforcement 09 proceeding or investigation in which the person maintaining the information is the 10 subject or party. 11 (b) If compulsory disclosure of private genetic information is sought under 12 (a)(2) of this section or in a proceeding or investigation under (a)(3) of this section, 13 the person requesting disclosure shall serve upon the person maintaining the private 14 genetic information and upon the sample source, the sample source's representative, 15 the sample source's attorney, or the sample source's representative's attorney the 16 original or a copy of the disclosure request at least 30 days before the date on which 17 compulsory disclosure is requested and a statement of the right of the sample source 18 or the sample source's representative and of the person maintaining the private genetic 19 information to have any objections to the disclosure heard by the court, legislature, 20 or governmental agency before the issuance of an order compelling disclosure and the 21 procedure to be followed to have any objections heard. Service shall be made by 22 certified mail, return receipt requested, or personally in the manner required by the 23 Alaska Rules of Civil Procedure for service of a summons and complaint. The person 24 maintaining the private genetic information may not disclose the information unless 25 30 days have elapsed since the date of the request and an objection to the disclosure 26 has not been made. If an objection to the disclosure has been made, the person 27 maintaining the private genetic information may not disclose the information until after 28 a hearing and a determination that good cause exists under (d) of this section, and after 29 issuance of an order under (e) of this section. 30 (c) Service of compulsory process or discovery requests upon a person 31 maintaining private genetic information must be accompanied by a written certification,
01 signed by the person seeking to obtain the private genetic information or that person's 02 authorized representative, identifying at least one paragraph of (a) of this section under 03 which compulsory process or discovery is sought. The certification must also state, 04 in the case of information sought under (a)(2) or (3) of this section, that the 05 requirements under (b) of this section for notice have been met. A copy of the written 06 certification shall be maintained as a permanent part of the record of private genetic 07 information. 08 (d) An order compelling the disclosure of private genetic information may be 09 entered by the court or by a legislative or governmental agency only after a hearing 10 and determination that good cause exists. To make this determination, the court or the 11 legislative or governmental agency must find that 12 (1) other ways of obtaining the private genetic information are not 13 available or would not be effective; and 14 (2) there is a compelling need for the private genetic information that 15 outweighs the potential harm to the privacy interest of the subject of the information. 16 (e) An order under this section compelling disclosure of private genetic 17 information must 18 (1) limit disclosure to those parts of the record containing the 19 information essential to fulfill the objective of the order; 20 (2) limit disclosure to those persons whose need for the information is 21 the basis of the order; 22 (3) require the deletion of individual identifiers from a document made 23 available to the public; 24 (4) include other measures, if any, that are necessary to limit disclosure 25 for the protection of the subject of the information, such as sealing from public 26 scrutiny the record or portion of the record of a proceeding for which disclosure of the 27 information has been ordered. 28 Sec. 18.14.200. Applicability. This chapter does not apply to samples 29 collected for inclusion in the deoxyribonucleic acid identification registration system 30 under AS 44.41.035. 31 Sec. 18.14.400. Definitions. In this chapter,
01 (1) "compulsory disclosure" means disclosure of private genetic 02 information required by federal or state law in connection with a judicial, legislative, 03 or administrative proceeding, including disclosure required by subpoena, subpoena 04 duces tecum, request or notice to produce, court order, or another method of requiring 05 a person maintaining private genetic information to produce private genetic information 06 under federal or state law; 07 (2) "disclose," when used with respect to private genetic information, 08 means to provide access to the information or to verify the information, but only if the 09 access or verification is provided to a person other than the sample source or the 10 sample source's representative; 11 (3) "DNA" means deoxyribonucleic acid; 12 (4) "DNA sample" means a human biological specimen from which 13 DNA can be extracted or DNA extracted from a specimen; 14 (5) "individual identifier" means a name, address, social security 15 number, health insurance identification number, or similar information by which the 16 identity of a sample source can be determined with reasonable accuracy, either directly 17 or by reference to other available information; the term does not include characters, 18 numbers, or codes assigned to an individual or a DNA sample that cannot be used to 19 determine the identity of a sample source; 20 (6) "individually identifiable DNA sample" means a DNA sample 21 linked to an individual identifier; 22 (7) "private genetic information" means information about an 23 identifiable individual that is derived from the presence, absence, alteration, or 24 mutation of a gene or genes or the presence or absence of a specific DNA marker or 25 markers and that has been obtained from an analysis of the individual's DNA or from 26 an analysis of the DNA of a person to whom the individual is related; 27 (8) "sample source" means the individual from whose body the DNA 28 sample originated; 29 (9) "sample source's representative" means a person who has the legal 30 authority to make health care decisions concerning a minor or an incompetent person, 31 or the personal representative, if any, of a deceased person's estate, or, if the deceased
01 person's estate does not have a personal representative, the next of kin of the deceased 02 person. 03 * Sec. 4. AS 23.10 is amended by adding new sections to read: 04 Article 10. Restrictions on Electronic Monitoring of Employees. 05 Sec. 23.10.700. Restrictions on electronic monitoring of employees and 06 others. (a) An employer may not use methods of electronic monitoring to collect 07 information concerning employees unless 08 (1) the information is collected only at the employer's premises and 09 concerns activities that occurred at least in part on or immediately adjacent to the 10 employer's premises; 11 (2) information relating to an employee is collected only during the 12 employee's working hours; however, an employer is not liable under AS 23.10.700 - 13 23.10.720 for conducting electronic monitoring the sole purpose and principal effect 14 of which is to collect information permitted by AS 23.10.700 - 23.10.720 if the 15 monitoring collects incidental information in violation of this paragraph. 16 (b) Except as provided in (c) of this section, before an employer engages in 17 electronic monitoring of an employee, the employer shall provide written notice of the 18 monitoring to each employee who may be affected. The notice must inform the 19 employee of the 20 (1) type of information that is to be collected; 21 (2) means by which the information is to be collected; 22 (3) times at which the monitoring is to occur; 23 (4) location of the monitoring equipment; 24 (5) use to be made of the information collected by electronic 25 monitoring; 26 (6) identity of the employees who will be monitored. 27 (c) An employer may engage in electronic monitoring of an employee without 28 giving prior notice to the employee if the employer has reasonable grounds to believe 29 that 30 (1) an employee is engaged in conduct that violates the employment 31 policies of the employer;
01 (2) the alleged violation of employment policies imposes a burden on 02 the employer or one or more other employees; and 03 (3) the monitoring is reasonably likely to provide information of the 04 violation of employment policies. 05 (d) If an employer engages in electronic monitoring that will have the direct 06 or indirect effect of monitoring a person other than an employee, the employer shall 07 provide notice to those whose conduct may be monitored. The notice may take any 08 form that is reasonably calculated to inform the person monitored. 09 (e) An employer that engages in electronic monitoring of an employee's 10 communications shall inform the affected employee of the monitoring before the 11 monitoring occurs. However, an employer who is engaged in a bona fide quality 12 control program is not required to provide prior notice of the monitoring. A quality 13 control program is a bona fide program if 14 (1) the information collected relates to the performance of a specific 15 defined task; 16 (2) the employer has a written standard for the performance of that 17 task; 18 (3) the purpose of the monitoring program is to compare the 19 performance of employees performing the task to the performance standard; 20 (4) information regarding the performance of all employees performing 21 the task is collected on a reasonably equal basis; and 22 (5) the affected employees are evaluated on their performance at a time 23 when they can reasonably be expected to remember the events on which the evaluation 24 is based. 25 (f) An employer may not conduct electronic monitoring in an employee 26 bathroom, locker room, shower or bath facility, or other similar area. 27 (g) An employer may disclose information collected through electronic 28 monitoring of an employee only 29 (1) with the prior written consent of the employee as provided in (l) of 30 this section; 31 (2) to an officer, employee, or authorized agent of the employer who
01 has a legitimate need for the information in performance of employment duties; or 02 (3) to an appropriate law enforcement agency. 03 (h) An employer may not discharge, discipline, or discriminate against an 04 employee in compensation or in a term, condition, or privilege of employment because 05 the employee has asserted rights under AS 23.10.700 - 23.10.720, assisted another 06 employee in asserting rights under these statutes, reported a violation of these statutes, 07 or participated in an enforcement action under these statutes. 08 (i) The attorney general may investigate an alleged violation of AS 23.10.700 - 09 23.10.720. An employer who is found in violation of these statutes is punishable by 10 a fine of not more than $1,000. 11 (j) A person who alleges a violation of this section may bring a civil action, 12 and the court may grant appropriate relief, including punitive damages. 13 (k) If it appears that an employer is engaged in an act or practice that violates 14 or will violate a provision of this section, an employee or the attorney general may 15 bring an action in a competent court to enjoin the act or practice and to enforce 16 compliance with this section. 17 (l) An agreement by an individual to waive, release, or commute the 18 individual's right to benefits or any other rights under this section is void unless the 19 agreement is in writing and describes with specificity the information to be released. 20 Sec. 23.10.720. Definitions for AS 23.10.700 - 23.10.720. In AS 23.10.700 - 21 23.10.720, 22 (1) "electronic monitoring" or "monitoring" means the collection of 23 information concerning employee activities or communications by a means other than 24 direct observation, including the use of a computer or eavesdropping on a telephone, 25 wire, radio, camera, or other electromagnetic, photoelectronic, or photo-optical system; 26 (2) "employee" means a person who performs services for an employer 27 for compensation and includes a former employee; 28 (3) "employer" means a person who employs one or more other persons 29 and includes the state, the University of Alaska, the Alaska Railroad, and political 30 subdivisions of the state. 31 * Sec. 5. AS 45.50.471(b) is amended by adding a new paragraph to read:
01 (43) violating AS 45.50.478. 02 * Sec. 6. AS 45.50 is amended by adding a new section to read: 03 Sec. 45.50.478. Restriction on releasing certain consumer information. (a) 04 A retailer who has issued a discount device in this state may not sell, lease, or 05 otherwise release to any person consumer information unless the retailer 06 (1) has provided the consumer with the option in writing of authorizing 07 or preventing the retailer from selling, leasing, or otherwise releasing the consumer 08 information; and 09 (2) the consumer has authorized the release of the consumer 10 information. 11 (b) Notwithstanding (a) of this section, a retailer may release consumer 12 information for the purpose of 13 (1) delivering to the consumer the retailer's billing statements or 14 promotional offers; or 15 (2) making a credit report if the discount device is a credit card. 16 (c) Subsection (a) of this section does not apply to the release of consumer 17 information by a retailer to another person that, directly or through one or more 18 intermediaries, controls, is controlled by, or is under common control with the retailer. 19 However, if consumer information is released by a retailer to another person under this 20 subsection, (a) of this section applies to the release of that consumer information by 21 the other person. 22 (d) A violation of this section constitutes an unfair or deceptive act or practice 23 under AS 45.50.471. 24 (e) In this section, 25 (1) "consumer" means an individual who is an actual or prospective 26 purchaser of goods used primarily for personal, family, or household purposes; 27 (2) "consumer information" means information that identifies a 28 consumer and that is obtained by a retailer in connection with the issuance of a 29 discount device to the consumer or the use of the discount device by the consumer; 30 (3) "discount device" means a card, scanner device, or other device 31 issued by a retailer to a consumer that the consumer may use to obtain a discount
01 when making purchases from the retailer; 02 (4) "retailer" means a person who sells goods used primarily for 03 personal, family, or household purposes to a consumer who is not in the business of 04 reselling the goods. 05 * Sec. 7. The uncodified law of the State of Alaska is amended by adding a new section 06 to read: 07 INDIRECT COURT RULE AMENDMENT. The provisions of AS 18.14.090, added 08 by sec. 3 of this Act, have the effect of changing Rule 26, Alaska Rules of Civil Procedure, 09 by adding additional procedures that must be followed before private genetic information may 10 be disclosed in response to a discovery request. 11 * Sec. 8. The uncodified law of the State of Alaska is amended by adding a new section 12 to read: 13 APPLICABILITY. The provisions of secs. 1 - 3 and 7 of this Act apply only to DNA 14 samples collected on or after the effective date of this Act.