Legislature(1993 - 1994)
04/06/1994 08:15 AM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 443 - Fish & Wildlife Confidential Records CHAIRMAN WILLIAMS stated this is the committee's second hearing on HB 443 which is a Governor's bill. He reminded members that at the first hearing on HB 443, testimony was heard from Wayne Regelin, Deputy Director of the Division of Wildlife Conservation and Dr. Gordon Haber, a biologist who had sought and won a court order to obtain radio collar information from the department for his own research. He said Dr. Haber sent several of his research reports for the committee's review which were made available to members of the committee. CHAIRMAN WILLIAMS stated when the committee adjourned the first meeting on HB 443, there was an amendment proposed by Representative James pending. The amendment is on page 1, line 14: Delete the word "or"; and on page 2, line 2: Insert ", or if the requestor has been authorized by the department to perform specific activities, and the requestor agrees to use the information only for purposes as provided under contract or agreement." Number 040 REPRESENTATIVE DAVID FINKELSTEIN stated he has an additional suggested amendment from the Alaska Department of Fish and Game (ADF&G) which he wishes to distribute. He said the suggestion is another approach to reach the same goal. He is attempting to address the issue of how to protect the department's interest on confidential information without precluding public release of those portions of the information which are not sensitive to interested parties or in the case of sensitive information, to only release the information under an agreement and in conformance with the terms of the department. Number 085 DAVID KELLEYHOUSE, DIRECTOR, DIVISION OF WILDLIFE CONSERVATION, ALASKA DEPARTMENT OF FISH & GAME (ADF&G), stated the suggested amendment which Representative Finkelstein is referring to was prepared only in response to potential amendments. He said ADF&G prefers that HB 443 remain in its original form with the pending amendment. CHAIRMAN WILLIAMS asked if there were any objections to the motion. Hearing none, the MOTION PASSED. REPRESENTATIVE FINKELSTEIN made a MOTION to AMEND CSHB 443(RES) as follows: On page 1, line 7, after "(2)", delete [WHEN THE KNOWLEDGE MAY BE DETRIMENTAL TO THE FISH OR WILDLIFE POPULATION] and insert, "when in the opinion of the commissioner, the knowledge may be detrimental to fish, wildlife, human safety, or research or management programs being conducted by the department or authorized by the department,". On page 2, line 2, following the word "population." insert, "The department may also release records and information that are kept confidential under this subsection, except for telemetry radio frequencies and other electronic locating information, to a requestor conducting scientific research or other specific activities if the requestor agrees to use the records and information only as provided under terms of a contract or agreement with the department." REPRESENTATIVE FINKELSTEIN explained these are all areas where the department does not have to release information to the public so there is a need to make it as strict as possible. Under current law, the department is not allowed to release information when the knowledge may be detrimental to the fish or wildlife population. He stressed the problem with the current law is it has been treated as being broader than only fish or wildlife species--the release of the information has to be detrimental to an entire population, which is not realistic. He said the first part of the amendment is more definitive on the release of information and the department cannot make a decision to not release the information only because they do not want to. REPRESENTATIVE FINKELSTEIN stated the second part of the amendment says the department is able, except for the case of radio frequencies or other electronic information, to release records of information to someone conducting scientific research if that person agrees to use the information only as provided for under terms of a contract with the department. Therefore, if someone not employed or contracted by the state wants to conduct scientific research, the department limits them to information other than radio frequency information, and that person agrees to the terms specified by the department including confidentiality, then the department may release the information to that person. He stressed the amendment does not say the department is required to release the information and does not go anywhere near the current court order. Number 161 REPRESENTATIVE CON BUNDE asked for clarification from the department as to their position on the pending motion. MR. KELLEYHOUSE stated CSHB 443(RES) will provide the commissioner with the necessary discretion to keep confidential any information which may be injurious to the state's interest. He said ADF&G prefers the bill be passed out in its existing form rather than with the pending amendment. He stressed ADF&G has shown good judgment over the years in working with other cooperators and professional scientists. ADF&G is asking, through CSHB 443(RES), for a reaffirmation from the legislature and a tightening of the statute, so the department is not forced to release sensitive information to individuals who the department does not believe to be reputable. He said passage of the pending amendment will open the door a little wider and increase the department's liability in subsequent litigation. (CHAIRMAN WILLIAMS noted for the record that REPRESENTATIVE DAVIES had joined the committee at 8:35 a.m.) REPRESENTATIVE JEANNETTE JAMES felt all department information should be kept confidential and opposes opening the door any wider. She stated this information should be only for state business, performed by the department or any other person on contract with the state, for a specific purpose. REPRESENTATIVE JOHN DAVIES felt the state is everyone who lives here and public purposes are broader than only what the department is doing. He said there is a need to facilitate independent research and stressed the truth is best served when there is a variety of opinions offered in a free market place of ideas. He asked for a clarification as to why the proposed amendment will increase the department's liability. Number 221 MR. KELLEYHOUSE responded the current language in the bill will give the commissioner full discretion in the release of information. The proposed amendment will provide a risk for someone to argue in a court of law with the opinion of the commissioner because of the specifics noted. He said it is difficult for an agency, especially an agency based on science, to prove to the court's satisfaction that there will be a detriment to an individual animal, to a population, or to a research or management program because there are plausible arguments to be made in court on the other side, as were recently made. MR. KELLEYHOUSE stressed the department has seen evidence of harassment to collared animals as a result of the release of information. The department has experienced premature release of information to the press which ADF&G does not believe to be a reputable scientific practice. ADF&G does not disagree with people having differing opinions, but rather how they go about forwarding their particular opinion. He stated the premature release of raw data is not a proper way to argue another scientific viewpoint. He reiterated the language in the proposed amendment will provide opportunities for arguments to be made in court for the release of information. Number 262 REPRESENTATIVE DAVIES asked if state employees include university employees. MR. KELLEYHOUSE replied CSHB 443(RES) will allow the department to continue working in cooperation with the University of Alaska. REPRESENTATIVE DAVIES wondered if a university professor had an opinion differing from that of the department, would the cooperation between the two slow down. MR. KELLEYHOUSE stated the cooperation would not slow down as long as the different opinion was expressed and a study plan was put forward which tests the hypothesis. He said through the years, the department has cooperated with many people who have had differing opinions and that has not been a reason for denying a cooperative effort. He felt the specific issue is the radio frequencies. ADF&G has never released state radio frequencies, as in the manner which recently occurred. MR. KELLEYHOUSE explained the department has only a certain band to operate in. The department was granted a narrow band of frequencies to use, which the department will use forever. He said if the frequencies are released, the release will not just jeopardize the current study because the department reuses those frequencies on different species, in different areas, over and over again and has done so for over twenty years. He stated when the department works with other people, a permit is issued allowing that individual to accomplish their own collaring. He stressed the department has never invited an individual into a department's ongoing study, with animals collared at the state's expense, because of the long-term downside potential of having those frequencies out. Number 309 REPRESENTATIVE DAVIES commented there is another area where the cooperative sharing of the information is essential. He said the Federal Communications Commission allocates the exact same bands to the university for doing seismological research as they do for ADF&G. He stated another circumstance is that completely independent and nonbiological research may be impacted by the radio telemetry frequencies chosen, so there is a need to ensure that an exchange of that type of information is not precluded. REPRESENTATIVE BILL HUDSON said he is attempting to determine how the proposed amendment will fit in with the amended HB 443. He felt the original intent of the bill is a valid intent and supports the amended version even more because it provides for independent research to take place under a contract or agreement with the department. He cannot support the proposed pending amendment. Number 353 REPRESENTATIVE FINKELSTEIN said the first part of the amendment says all determinations can be made regardless of any detrimental impact to any fish or wildlife. He stressed this part of the amendment actually returns to existing law, except the amendment fixes the law so there is no unintended effect such as what the department found in the case where wildlife populations were determined to be much broader than only the impact on a particular species or animal. The first part of the amendment says the detriment can be to a particular animal, human safety, or research or management programs--any detrimental impacts found in the opinion of the commissioner. REPRESENTATIVE FINKELSTEIN stated in regard to the second part of the amendment, the reason this confidentiality issue is being dealt with is because the information is state information, publicly paid for which members of the state have an ownership interest in. The goal is to balance the public's interest with the department's need to protect the state's interest. He clarified the pool of people interested in doing independent scientific research is very small. MR. KELLEYHOUSE responded it is a very small pool of people. He stressed CSHB 443(RES) will allow the department to cooperate with those people. Number 400 REPRESENTATIVE FINKELSTEIN expressed concern the department will only get into cooperative agreements with people whose opinions are in agreement with the department. He understood that is not the intent of the department but the language currently in CSHB 443(RES) will allow the department to exclude people because the department does not agree with their viewpoint. He felt the legislature has an obligation to allow people in the state, with different views, to have access to information, as long as that access does not interfere with the department's operations. MR. KELLEYHOUSE responded he has been a scientist for twenty years and during that period of time, he has worked and shared information with many researchers holding different viewpoints than his own. He stressed a difference of opinion would never cause him or Commissioner Rosier to ever recommend or deny access to information. He said it is the total nature of the opposition which weighs into the decision on whether or not it is in the state's best interest to enter into an agreement. He reiterated that the proposed pending amendment may provide some risk for litigation or argument for involvement of individuals where the release of information will adversely affect the state's interest. REPRESENTATIVE FINKELSTEIN stated it is difficult to understand how someone may sue based on the language contained in the proposed amendment, since the release of information is discretionary upon the department and all of the findings remain with ADF&G. Number 445 HENRY WILSON, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW, testified via teleconference and stated the question of detriment in current statute and in the proposed amendment is still going to be open to differing opinions and the possibility of litigation. He said in the current case, the argument was made that the use would not be detrimental to fish and wildlife populations. He can foresee instances where similar types of arguments can be made. He did not think the question of the (indiscernible) opinion of the commissioner being the first determination of detriment would necessarily preclude litigation because an argument can be made that the commissioner's opinion was arbitrary. MR. WILSON said he shares the concern of ADF&G that interjecting the concept of detriment into the equation leaves the door open for litigation. He stated the Department of Law, in reviewing the original statute, determined the intent of the legislature was to confirm the department's authority to keep information confidential and only by interjecting the concept of detriment, was the door opened up in ways the legislature did not intend. He expressed concern about the concept of detriment being subject to different opinions. MR. WILSON stated the committee's discussion is focusing on the use of information for research purposes. He stressed there are other purposes which people might be requesting this information for, such as tourist businesses--groups who want to view wildlife. He felt there are other circumstances where people might request this information and argue their particular use is not detrimental, either to the population or the other subjects contained in the proposed amendment. Number 510 REPRESENTATIVE BUNDE expressed concern about commercial interests using confidential information and does not support releasing information, gathered at the expense of the state, for private gain. REPRESENTATIVE JAMES stated the pending amendment seems innocent but anytime more words are added into a definition, there will always be more people who want to make the words say different things. She felt the bill, as currently amended, already accomplishes the desired goal. She thought the pending amendment is unnecessary and is opening the door for disputes. REPRESENTATIVE FINKELSTEIN asked if there is anything in CSHB 443(RES) which precludes the department from not releasing information to people who disagree with the department. He felt without the language regarding the detriment to fish and wildlife, decisions will be based only on the department's viewpoint. MR. WILSON clarified that Representative Finkelstein was asking the question in regard to CSHB 443(RES), without the pending amendment. REPRESENTATIVE FINKELSTEIN said that is correct. MR. WILSON responded the only possibility is the provision (indiscernible) the release necessary to comply with a court order. Otherwise, he does not see language addressing the issue Representative Finkelstein mentioned, unless there is an instance where the department contracts with people they disagree with. REPRESENTATIVE FINKELSTEIN said that was his point. If there is an independent person who disagrees with ADF&G, the department can choose not to give out information based only on a disagreement. Number 595 REPRESENTATIVE HUDSON felt that perhaps part of the pending amendment can be used. He suggested beginning on page 1, line 5, it could read, (d) When in the opinion of the commissioner, the knowledge may be detrimental to fish, wildlife, human safety, or research or management programs being conducted by the department or authorized by the department, the department shall keep confidential... He said this change will at least give a purpose for the justification of the commissioner having... He stated along with the first amendment already adopted, this expands the department's interaction with specific activities which have been agreed to be used only for purposes under contract or agreement. MR. WILSON thought Representative Hudson's suggestion is a reasonable alternative but the possibility of litigation will still be faced, to determine whether a particular use of the information is detrimental and whether or not the commissioner's opinion is reasonable and not arbitrary. REPRESENTATIVE HUDSON clarified the suggestion sets up a potential standard which could be used by someone who believes that the commissioner's authority has not been properly executed. MR. WILSON responded that is a possibility. He said it depends on how much interest there is in the information, how active people are and how far they want to pursue the information. He stated it could take a series of court cases to define whether or not a particular group's use of the information is detrimental. TAPE 94-46, SIDE B Number 000 CHAIRMAN WILLIAMS asked if there were any objections to the amendment proposed by Representative Finkelstein. REPRESENTATIVE HUDSON OBJECTED. REPRESENTATIVE FINKELSTEIN stated if there is a desire to preclude lawsuits, all of the access to public information laws could be rewritten in a way that the state will never be sued. He said the result would be the least access, instead of the ultimate goal, which is the most access. He stressed there is a potential for lawsuits anytime there is an attempt to allow citizens access while protecting the state's interest. He said the other extreme is making information, which any department does not want anyone to see, unavailable. REPRESENTATIVE JAMES said she has less concern with the second part of the amendment than the first part. She felt the second part of the amendment is quite definitive. REPRESENTATIVE DAVIES made a MOTION to DIVIDE the question. CHAIRMAN WILLIAMS asked if there were any objections to the motion. Hearing none, the MOTION PASSED. CHAIRMAN WILLIAMS asked for a roll call vote on the MOTION to AMEND CSHB 443(RES), on page 1, line 7, after "(2)", delete [WHEN THE KNOWLEDGE MAY BE DETRIMENTAL TO THE FISH OR WILDLIFE POPULATION] and insert, "when in the opinion of the commissioner, the knowledge may be detrimental to fish, wildlife, human safety, or research or management programs being conducted by the department or authorized by the department,". Voting in favor of the amendment were Representatives Davies and Finkelstein. Voting against the amendment were Representatives Williams, Hudson, Bunde, Carney, Green, James, and Mulder. The MOTION was DEFEATED 7-2. CHAIRMAN WILLIAMS asked for a roll call vote on the MOTION to AMEND CSHB 443(RES), on page 2, line 2, following "population." and insert, "The department may also release records and information that are kept confidential under this subsection, except for telemetry radio frequencies and other electronic locating information, to a requestor conducting scientific research or other specific activities if the requestor agrees to use the records and information only as provided under terms of a contract or agreement with the department." Voting in favor of the amendment were Representatives Finkelstein, James, and Davies. Voting against the amendment were Representatives Williams, Hudson, Bunde, Carney, Green, and Mulder. The MOTION was DEFEATED 6-3. REPRESENTATIVE MULDER made a MOTION to MOVE CSHB 443(RES), with accompanying fiscal notes, out of committee with INDIVIDUAL RECOMMENDATIONS. REPRESENTATIVE FINKELSTEIN OBJECTED. REPRESENTATIVE FINKELSTEIN stated there are very few people in the state who want this information, and there are very few independent scientists, researchers, biologists in the state. He said everyone is employed by the state or federal government or municipalities. He felt there should be some limited access provided to these few people, where the department's and state's interests are not going to be harmed and also where the release of the information is not purely discretionary upon the department. CHAIRMAN WILLIAMS asked for a roll call vote. Voting in favor of the motion were Representatives Williams, Hudson, Bunde, Carney, Green, James, and Mulder. Voting against the motion were Representatives Finkelstein and Davies. The MOTION PASSED 7-2.
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