Legislature(2001 - 2002)
04/25/2002 08:08 AM House STA
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 326 - SECURITY OF FACILITIES AND SYSTEMS Number 1979 CHAIR COGHILL announced that the next order of business would be HOUSE BILL NO. 326, "An Act relating to state plans and programs for the safety and security of facilities and systems in the state; and providing for an effective date." [CSHB 326(MLV) was before the committee.] Number 1999 CAROL CARROLL, Director, Central Office, Administrative Services Division, Department of Military & Veterans Affairs, presented HB 326. She told the committee that HB 326 addresses three items that came to light during the disaster policy cabinet deliberations after September 11, 2001. The disaster policy cabinet identified areas in the statutes where there were gaps in the security of Alaska. Section 1 addresses the inability of the state at its international airports and certificated airports to have an efficient way to fine people for security violations. Section 1 gives the Department of Transportation & Public Facilities [DOTP&F] the ability to apply administrative procedure to individuals who violate security plans at the airports. The department would be required to go through the regulation process to set the amount of the fines for the violations. MS. CARROLL explained that Section 2 deals with the state's very broad public record law. In Alaska, every document is a public record and can be obtained by members of the public, unless it is specifically limited in statute. Section 2 gives the state an exemption in statute for security plans, if they can reach three standards. First, it has to be shown that release of that document would harm the public or an individual. Second, it has to be shown that release of that document would get confidential information in the hands of the public about guidelines for investigations or enforcement. Third, it has to be shown that release of that document would circumvent the security plan itself. She acknowledge that there are already appeal processes in existing law that people have if they disagree with an agency that denies them a public record. Usually, when a state agency considers denying a public record to a member of the public, it works with the Department of Law for a determination of whether that is really protected under statute. MS. CARROLL explained that Section 3 deals with agencies that are subject to the Administrative Procedure Act. Section 3 provides that an agency may have a security plan by order, so it can notify the public that they are going to be required to do certain things under a security plan, but all the details would not have to be made public. She noted that the same three standards mentioned earlier would have to be met, and the public would have recourse to an appeals process if they disagreed with the agency. Number 2278 REPRESENTATIVE JAMES asked what the qualifications of the people issuing the airport citations would be. Number 2365 FRANK RICHARDS, State Maintenance Engineer, Office of the Commissioner, Department of Transportation & Public Facilities, testified via teleconference. He explained that in rural areas, the airport manager and his/her designee would most likely have this authority. Currently, there are federal regulations and state statutes that the airports must comply with. However, the manager don't have the authority, except for criminal violations, to be able to cite individuals. That makes it difficult for the rural airport managers who don't have police powers to enforce their prescribed job duties. The department hoped to get the criminal citation ability to the [managers or designees], so they can perform their jobs. This would be done with training programs, so they would know what their responsibilities are and how they would best administer the regulations and statutes. Number 2490 REPRESENTATIVE JAMES asked about the appeal process and how the intent is addressed. MR. RICHARDS answered that in the development of the regulations, processes would be developed for violations and possibly appeals, so that if there were a situation in which someone felt he/she was incorrectly cited, there would be an avenue to address that concern. The direction to the people in the field would be that this is truly the last resort. The department doesn't want to give this power to people and then have them use it without proper deference to the regulations. Number 2531 REPRESENTATIVE JAMES wondered what would happen to employees if they were cited, and if it would cause them to lose their jobs. MR. RICHARDS indicated that he has no legal ability in terms of the recordkeeping of the criminal citations and would not be the appropriate person to address that. In terms of the training aspect, he said that there would be a process similar to what happens currently for airport managers regarding the federal security regulations that they must administer. That is a fairly lengthy process. MR. RICHARDS pointed out that the new Transportation Security Administration has just defined a security curriculum that each of the airport security coordinators must follow through to be duly designated and appropriately charged as the airport security coordinator. That guideline would be followed to define a certain curriculum and certain timeframes, and refresher training so they are aware of the requirements to perform their duties. This bill to give the power to the airport managers goes hand in hand with what the federal government is requiring of the airports where there are security programs. REPRESENTATIVE JAMES said she wanted the employees to know and be responsible for what they need to do and not be a victim of something they haven't really been prepared for. Number 2690 MS. CARROLL pointed out that the civil or administrative penalties asked for in this bill are not criminal. REPRESENTATIVE JAMES acknowledged that she understood that, but administrative penalties go on employment records, and she expressed concern about the effects of that over time. Number 2709 REPRESENTATIVE FATE commented that Section 2 didn't seem to allow for a person who needed to look at the plans of a structure for a valid reason. He wondered if pilots would be running afoul of this section because they need to have information on runways, taxiways, and airport facilities. MS. CARROLL answered that if there is a legitimate need for people to have a document and the state is aware of that, they would get the plans. Number 2860 MR. MITCHELL agreed with Ms. Carroll. He is not familiar with that specific information or the need for it, but he said he believes it would continue to be available under the balancing of risk versus need. MR. RICHARDS explained that the Alaska supplement that every pilot must have to be able to fly into the airports provides information on common frequencies and facilities such as the runways and taxiways; that will not be denied to the pilots. He pointed out that the legislation refers to critical infrastructure-type blueprints. For example, if someone wanted to create havoc at an airport and knock out a lighting system or a local power plant providing power to that airport or knock out a critical structure, those are the types of things that people will be prevented from trying to gain access to. MR. RICHARDS informed the committee that in meetings with other states on this issue, there has been reported an effort by some Middle Eastern countries to get access to critical structures, such as bridges and tunnels on the highway system. Other states are putting into place similar regulations restricting the flow of information on critical infrastructure to people who don't need that detailed information. Number 2936 REPRESENTATIVE FATE said he didn't see where that description was in the bill. It says none of these things would be publicly available. He suggested some exemptions might make it clearer. TAPE 02-46, SIDE B Number 2968 MS. CARROLL pointed out that before records can be denied, the request will always be addressed on a case-by-case basis. In the analysis, it will be determined what is the need for the document. The protections are right there, but they are not specifically stated for each case, but that's how the public is protected against the state agencies' denying them something they shouldn't do. REPRESENTATIVE JAMES commented that with the freedoms in this country, it will be difficult to make those decisions as to who has the right [to information]. She wondered what kinds of cautions can be taken to provide protection because of the vulnerability. Number 2820 MS. CARROLL said the state is being much more careful. People have a heightened awareness of their [own] state of being nowadays. On every level of government there are training programs making people more aware, but there is nothing in this bill that requires that. REPRESENTATIVE JAMES commented that there are people who don't want any of their freedoms abridged, even if it has anything to do with disasters or someone attacking the country. There is a fine line down this pathway. She agreed that this is certainly a step in the right direction. Number 2778 REPRESENTATIVE CRAWFORD referred to Section 2 and said it seems to give such broad powers to deny information for almost any reason. He wondered if information can be denied now. CHAIR COGHILL referred to AS 40.25.120(4), which says, "records required to be kept confidential by a federal law or regulation or by state law". He asked if there is a present state law that gives some protection. He wondered if this section is needed, and if there are already safeguards that would give the legal protection to forbid certain plans to be public documents. Number 2670 MR. MITCHELL answered no, there are no such safeguards at this time. He said it is important to the Department of Law that the state have those protections. He told the members that when a public records request is received, the requestor has a right to any information in the agencies' files, unless there is a specific exception to that right. When the department gets the request, it looks through those lists of exceptions, and if it's not there, the agency is advised that it is public. Since September 11, there have been some requests for information that has caused some concern regarding specifics about infrastructure within the state. This [bill] would tighten that up and allow the agencies, when those statutory criteria are met, to say there is no public right to that particular information. The details of the specifics of what is covered and what isn't will have to be addressed on a case-by-case basis. MR. MITCHELL explained that the Department of Law maintains binders of its decisions on past requests under the existing exceptions, and it goes back to those to maintain consistency and to develop guidelines to advise for agencies. He anticipated that that process would be continued. When there are categories of requests that come in, it may be appropriate for the agencies to develop regulations to address them or develop their own procedures manuals as some agencies have under the existing exceptions. CHAIR COGHILL noted that the federal laws are going to be changing rapidly in this area. He asked if the state is going to have to come up with a whole security code to match the federal law. MR. MITCHELL said where there is federal law that is applicable, then that applies, and that is an exception that is picked up under that subsection. At this point, there are a number of voids in federal law such that it can't be relied on to provide adequate protection. Number 2505 REPRESENTATIVE FATE said he wasn't really talking about the aircraft information manual but rather the fliers which airports usually have that describe the runways, the taxiways, the hangars, and where to park a single-engine aircraft in front of a terminal. The fliers lay this information out so pilots know their way around the airports. These fliers are very useful, but they're very descriptive. He fears that this could be used to influence general aviation, which has already been adversely influenced from the tragedy on September 11. He said he worries about the term "facilities" covering that. If those fliers were stopped in the name of security, there would be a decrease in general aviation. Number 2351 DENNIS POSHARD, Legislative Liaison/Special Assistant, Office of the Commissioner, Department of Transportation & Public Facilities, replied that there are all kinds of notices put out to the aviation community with respect to the operation of the airports. In reading Section 2, subparagraph (10)(C) of the bill, an argument could be made that not providing the appropriate notices to the aviation community could be just as endangering to someone's life and safety. He doesn't have the same concerns that this bill will prevent providing the flyers [to the pilots]; that will continue to be done. It is very important for the safety and security purposes that those notices be provided to aviators on a regular basis. He understands the concern, but he doesn't see anything that would prevent that from being done. MR. POSHARD said it could be argued that their safety is enhanced by providing them with the appropriate information. That has to be weighed against the possibility that that information could wind up in the hands of someone who wouldn't be interested in using it for proper purposes, but that's the balance that this bill tries to achieve. Adequate information will continue to be provided to the pilots. REPRESENTATIVE FATE said that was reassuring to have on the record. Number 2248 DICK BLOCK, Christian Science Committee on Publication, testified via teleconference. He said his interest in this bill focuses only on Section 3, which would add a new section in Title 44 and would deal with the operation of all state government. He told the committee that he had some difficulty in understanding what it is intended to do. As he listened to the discussion today, it seemed to center around information concerning security of airports that may have to be developed and yet withheld from the public. To the extent that that is what this deals with, he has no problem with it. He commented that it is unfortunate that it has come to this, but it has, and it needs to be dealt with responsibly. MR. BLOCK called attention to Section 3. He said he isn't concerned that the Department of Transportation & Public Facilities and airports will have the authority, but that every state agency in Alaska and every chief executive officer or principal executive officer of those state agencies will have the authority to enter an order implementing its statutory authority relating to adoption of a plan, program, procedure, and so forth. The difficulty he has with that is that he has not been able to find what those statutory authorities are or a definition of a plan, program, or procedure for establishing and maintaining the security of an operation within the state. His difficulty with that is that it seems to give every principal executive officer of every state agency the authority to call something a plan, program, or procedure and create implementation of that without following the Administrative Procedure Act, which calls for notice to the public and so forth. Number 2093 MR. BLOCK told the committee that after a conversation with Ms. Carroll the other day, it seemed that what's looked for here is the ability of the DOT&PF or the regulatory agency that protects airports to have the broad authorities that are called for in Sections 1 and 2 and the ability to adopt regulations without having to go through the Administrative Procedure Act. If that's the case, he hoped that the committee would see the wisdom of putting some limitations in Section 3 of the bill so that it is limited to the intended purpose. Number 2047 MR. BLOCK said he is concerned because it's available to any state agency, and there are those who may have certain protections in the law. For example, there are areas in the law where the legislature has recognized that those who rely on prayer for healing need not get vaccinations. Those laws should still be respected even if there was some sort of emergency that required some state agency to adopt some sort of vaccination program. None of this has been discussed or thought about in a bill that deals with protecting airports, but because of the broad language in Section 3, he is concerned about it. He said he hoped language could be found to bring it back to what its intended purpose is. CHAIR COGHILL agreed that the language should be retooled. He noted that there is also a House Judiciary Standing Committee referral for HB 326. Number 1907 REPRESENTATIVE JAMES commented that there needs to be a lot of thinking done on how things are done and how people live their own lives to make them less vulnerable. She agreed with Mr. Block's concerns. She commented: We can't just face our own personal freedoms and privacy issues on other folks, if what we do by doing that creates a vulnerability for other people. I think we have to be considerate about ourselves and what we have the rights to be doing, but we also have to measure that against the best interest of everybody. I think that is the Christian way, Mr. Chairman, that we are not just interested selfishly in our own issues, but we're also interested in other people and their own selfish interests that they might have as a whole when we do this. REPRESENTATIVE JAMES didn't agree with taking this section out but wanted the same argument go to the House Judiciary Standing Committee. This committee is looking at the best interests of the whole state. She agreed that this is a good state issue, and it needs to be looked at. She urged everyone to balance these efforts of personal desires and responsibilities to others. She said she didn't think we have just civil rights in this nation; she thinks there are civil rights coupled with responsibility, and they are equal in power. Number 1669 REPRESENTATIVE WILSON agreed with Representative James. This is so broad. She cautioned against inadvertently allowing somebody who is power-hungry to start doing some things that aren't necessarily needed. There is a fine line here to accomplish what is wanted but yet make sure it doesn't go any further than that. Number 1608 MS. CARROLL told the committee that "boards and commissions" was taken out of Section 3 in the House Special Committee on Military and Veterans' Affairs meeting because it was broad. She reiterated that the state agencies have to meet the three criteria. She referred to Mr. Block's concerns and pointed out that any agency can only implement what its statutory authority already is. This does not make any new law. If an agency has that authority right now, it can implement it. If an agency does not have that authority right now, it cannot implement any of that. CHAIR COGHILL suggested either the committee take that broad section out or he'll just hold it over for a legal opinion. Number 1467 REPRESENTATIVE HAYES said he didn't understand why this bill needed to be held because the legal opinion will follow to the House Judiciary Standing Committee. CHAIR COGHILL said that section is rather broad. He struggles with the issue that the legislative body is supposed to make the laws. He said that is being sidestepped. He would rather take the section out and reinsert it in some other fashion later, rather than for this committee to try to retool it. There isn't time. He reiterated that this is just way too broad and too problematic. Number 1384 REPRESENTATIVE CRAWFORD agreed that the language is too broad. It's a reaction to September 11, and it might be reacting too strongly to problems that may not even exist here in Alaska. He urged the committee to move with caution. REPRESENTATIVE JAMES said there is a change they could make to change the whole complexion of this issue. Right now commissioners can establish policy without going to the public for comment. Policy is that person's policy, and it absolutely has to comply with other statutory issues. It is something that doesn't reach the magnitude of a regulation. She said she doesn't believe that that is what's intended here. This just says "may issue an order to implement its statutory authority", which is just an order that that particular commissioner in his/her own little area of control is going to do. That is a policy because various agencies do have policies. If the committee wanted to change "order" to "policy", it would not be doing anything different than what is done now, and it would certainly narrow it. Otherwise, "issue an order" makes it an administrative law, and policy is not administrative law. Number 1233 REPRESENTATIVE JAMES expressed concern that there might be some need for a policy that is so severe or apparent at that particular time that it would take too long to write a regulation and put it out to public review. It could even say, "subject to a regulation policy to establish this, providing that it doesn't violate a security issue." She doesn't want the public to know a lot of the security things. By taking the section out and sending it forward, the committee is implementing a state policy that she doesn't necessarily think is how it wants to do it. She agreed that it needs to be fixed and would be willing to send a [letter of] intent along to the judiciary committee that this section need to be looked at. She said she thinks that just taking it out causes another state policy that concerns her. CHAIR COGHILL asked Ms. Carroll if changing "order" to "policy" would be a problem. MS. CARROLL answered that policy also has to go along with the statutory authority. She commented that making policy decisions outside of the statutory structure is not supposed to be done. CHAIR COGHILL asked what would happen if this following were taken out: "is not subject to AS 44.62 (Administrative Procedure Act) and". Number 0985 MR. BLOCK interjected that he has drafted a letter to the committee in which he proposes some language changes that he believes would make it acceptable to his concerns, that may solve some of the other problems and yet not do violence to what he thinks the DOT&PF seeks to do. He suggested two possible changes to Section 3. The first change would be to strike the language, "Notwithstanding any contrary provision of law," because that would leave in place all the public policy adopted in statute by the legislature and allow that to continue to govern, except to the extent that there is a specific statutory exception from that, and there are two that are in the bill. One that says "it's not subject to the Administrative Procedure Act, and that's something they feel they need to have in order to adopt plans without fully disclosing them," and the other is the ability to withhold information under the Freedom of Information Act, which he thinks is attended to under Section 2. But it would mean, then, that all other guidelines, policies, or statements by the legislature protecting individuals' civil rights would still be paramount. MR. BLOCK said the second change he would propose is on page 2, line 24, where it says, "An order issued under this section is not subject...." He would add the language, "An order not inconsistent with any duly adopted existing regulation issued under this section...." He explained that these plans would have to be subject to existing regulations that are duly adopted. Number 0773 MR. POSHARD replied to a question regarding Section 1 of the bill, saying that there are different levels of airports. There are international airports in Anchorage and Fairbanks, there are 21 certificated rural airports, and there are around 240 non- certificated rural airports. He agreed that the non- certificated airports would not be included in the issue in the bill. There is not anyone at the non-certificated airports to enforce it anyway. CHAIR COGHILL asked how this would work at the smaller airports that have only two or three employees. Number 0602 MR. POSHARD said the department intends to train all of the airport managers and maybe one designee in the regulations that would be adopted, the violations that would be enforced, et cetera. In a certificated airport, there has to be a certain level of staffing, which includes fire and rescue capabilities and certain other things. Each of those airports does have usually at least an airport manager and one or two staff people. The reason Section 1, Administrative penalties, is needed is because most of the rural certificated airports have to rely on local law enforcement to provide any kind of security violation, because most of those violations are misdemeanors, and that's a criminal penalty. So, a law enforcement official in a rural community has to come out and issue a misdemeanor for someone who's illegally parked in a secure violation and won't move the car when asked. He noted that it's just not a good use of the officer's time. If the airport manager could issue a ticket when the person refused to move the vehicle, it would provide a tool to deal with those kinds of violations. Number 0389 REPRESENTATIVE FATE asked what penalties or actions could be taken against the executives who have this power and abuse it. MR. POSHARD answered that he didn't know the answer but assumed it could be reported to the person's supervisor, and it could be handled like other personnel actions when there has been an abuse of authority or power. MR. POSHARD noted that the concerns of the committee have certainly been heard. They will be taken into account when regulations are adopted and implemented. He added that training will be an important part of this process. Number 0196 CHAIR COGHILL made a motion to adopt Amendment 1, to delete Section 3. There being no objection, Amendment 1 was adopted. REPRESENTATIVE FATE moved to report CSHB 326(MLV), as amended, out of committee with individual recommendations and the accompanying zero fiscal note. There being no objection, CSHB 326(STA) was reported out of the House State Affairs Standing Committee.
| Document Name | Date/Time | Subjects |
|---|