Legislature(2011 - 2012)BELTZ 105 (TSBldg)

04/06/2011 01:30 PM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 86 PROTECTION OF VULNERABLE ADULTS/MINORS TELECONFERENCED
Heard & Held
+ SB 104 MANUFACTURED HOMES AS REAL PROPERTY TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SB 30 RETURN OF SEIZED PROPERTY
Moved CSSB 30(2d JUD) Out of Committee
= SB 98 BIOMETRIC INFORMATION FOR ID
Heard & Held
              SB  98-BIOMETRIC INFORMATION FOR ID                                                                           
                                                                                                                                
1:53:56 PM                                                                                                                    
CHAIR FRENCH announced  the consideration of SB 98  and asked for                                                               
a motion to adopt the proposed committee substitute (CS).                                                                       
                                                                                                                                
SENATOR WIELECHOWSKI, sponsor  of SB 98, moved to  adopt the work                                                               
draft  CS  for  SB  98,   labeled  27-LS0661\E,  as  the  working                                                               
document.                                                                                                                       
                                                                                                                                
CHAIR FRENCH objected for discussion purposes.                                                                                  
                                                                                                                                
1:55:00 PM                                                                                                                    
MICHAEL  CAULFIELD,  staff  to  Senator  Wielechowski,  said  the                                                               
current  CS makes  two  changes. Page  2,  lines 12-16,  prevents                                                               
requiring biometric information as a form  of ID in order to take                                                               
an occupational  exam. Page  3, lines  14-17, provides  the state                                                               
immunity from  rights of action  in the  event of some  breach of                                                               
the  law.  He  noted  that  Ms. Cox  was  available  for  further                                                               
explanation of this provision.                                                                                                  
                                                                                                                                
SENATOR  WIELECHOWSKI  said  he  doesn't want  the  state  to  be                                                               
exposed  to a  huge  penalty  because of  some  inaction, but  he                                                               
believes that  it's very important  for the state to  take action                                                               
to  protect Alaskans'  privacy rights.  He  mentioned the  recent                                                               
instance  when  the state  lost  private  data for  thousands  of                                                               
Alaskans and said he was open to suggestions.                                                                                   
                                                                                                                                
1:57:24 PM                                                                                                                    
SUSAN   COX,   Assistant   Attorney  General,   Civil   Division,                                                               
Department  of Law  (DOL), said  she  was asked  if inserting  an                                                               
immunity provision  in the bill  would potentially  eliminate the                                                               
DOL indeterminate  fiscal note. She noted  that Legislative Legal                                                               
Services drafted the current  immunity provision, which specifies                                                               
that an action for damages or  for a penalty could not be brought                                                               
against  the state.  However, she  pointed out,  if someone  felt                                                               
that the state  wasn't following the law, injunctive  relief or a                                                               
declaratory judgment  action would still be  an available remedy.                                                               
Version E does address the damages liability aspect, she stated.                                                                
                                                                                                                                
SENATOR PASKVAN  asked if there is  a current cause of  action by                                                               
an individual.                                                                                                                  
                                                                                                                                
MS. COX replied the state  is subject to liability for negligence                                                               
under the state's waiver of  sovereign immunity so it's difficult                                                               
to anticipate  the potential  scenarios this  bill would  seek to                                                               
address, and  if without this  legislation a person could  have a                                                               
potential cause of  action against the state. It  would depend on                                                               
whether the  state breached  a duty  and if  an immunity  that is                                                               
already on  the books would  apply. She  noted that the  state is                                                               
implicated  in the  Price Waterhouse  release  of state  employee                                                               
data,  but the  state met  its responsibility  under Title  45 by                                                               
notifying the  persons whose information it  collected that there                                                               
had been  a breach.  SB 98  wouldn't affect  that type  of breach                                                               
because it deals with a  different type of information that isn't                                                               
included in existing law in Title 45.                                                                                           
                                                                                                                                
2:01:44 PM                                                                                                                    
CHAIR FRENCH asked  if Alaskans had a private right  of action to                                                               
pursue damage claims  against the state due to the  loss of their                                                               
private data in the Price Waterhouse incident.                                                                                  
                                                                                                                                
MS. COX replied  there is nothing in statute to  provide that and                                                               
there has been no litigation to that effect.                                                                                    
                                                                                                                                
CHAIR FRENCH  asked if  a person  would need  to bring  a typical                                                               
negligence suit.                                                                                                                
                                                                                                                                
MS. COX  replied nothing  in the  bill that  passed in  2008 says                                                               
that a  private cause of  action is authorized against  the state                                                               
in those circumstances,  although the state may  be the recipient                                                               
of  the  penalties  when  a  collector  of  information  violates                                                               
provisions of  that Act. It  may be that  a person would  have to                                                               
allege the breach of a common law duty.                                                                                         
                                                                                                                                
2:03:16 PM                                                                                                                    
CHAIR  FRENCH  said  his  concern  is  whether  the  bill  overly                                                               
restricts a right that exists in another setting.                                                                               
                                                                                                                                
SENATOR  PASKVAN opined  that the  cause of  action itself  would                                                               
have to be analyzed under the existing AS 09.50.250.                                                                            
                                                                                                                                
MS. COX agreed that the  discretionary immunity would be analyzed                                                               
through  the court's  traditional test,  but the  existence of  a                                                               
tort  would depend  on the  court analysis  of whether  the state                                                               
owes  a  duty  to  the  individual.  That  would  depend  on  the                                                               
circumstances.                                                                                                                  
                                                                                                                                
SENATOR PASKVAN added  that if there's the duty,  the question is                                                               
whether  the  planning  versus   operational  standard  under  AS                                                               
09.50.250 would apply.                                                                                                          
                                                                                                                                
2:04:32 PM                                                                                                                    
MS. COX  said she doesn't want  to suggest that there  is a cause                                                               
of  action. The  difficulty is  that when  a statute  establishes                                                               
mandatory  duties and  specifically  creates a  private right  of                                                               
action, it changes the common law.  That opens a door that wasn't                                                               
opened before, she stated.                                                                                                      
                                                                                                                                
SENATOR PASKVAN responded it changes  the common law in the sense                                                               
that it  creates a duty. Assuming  that the duty is  changed, you                                                               
want to be immune, he said.                                                                                                     
                                                                                                                                
MS. COX agreed, at least for the damages liability.                                                                             
                                                                                                                                
2:05:39 PM                                                                                                                    
CHAIR  FRENCH  asked how  much  biometric  information the  state                                                               
holds.                                                                                                                          
                                                                                                                                
MS. COX said she didn't have that information.                                                                                  
                                                                                                                                
CHAIR FRENCH  referenced the section on  alternate identification                                                               
and   asked  if   there   had  been   any   feedback  from   test                                                               
administrators.                                                                                                                 
                                                                                                                                
MR. CAULFIELD  said Prometric Services has  commented extensively                                                               
on better test  security and keeping test  takers from defrauding                                                               
the system,  but it does have  the capability to use  other forms                                                               
of  ID when  the use  of biometric  information is  prohibited by                                                               
law.                                                                                                                            
                                                                                                                                
CHAIR FRENCH asked if Prometric  Services supports or opposes the                                                               
provision.                                                                                                                      
                                                                                                                                
MR. CAULFIELD replied it opposes  the provision, but could manage                                                               
it if necessary.                                                                                                                
                                                                                                                                
2:08:20 PM                                                                                                                    
SENATOR WIELECHOWSKI  pointed out that  a number of  places, like                                                               
Canada, have a similar provision.                                                                                               
                                                                                                                                
MR.  CAULFIELD confirmed  that Canadian  students  don't have  to                                                               
provide biometric information when taking the LSAT.                                                                             
                                                                                                                                
SENATOR WIELECHOWSKI  noted that a  staff member in  the building                                                               
is going  to Canada to take  the LSAT because he  doesn't want to                                                               
give his biometric information in order to take the test.                                                                       
                                                                                                                                
MR.  CAULFIELD said  there are  two potential  amendments to  the                                                               
current CS. One would broaden  the applicability of the alternate                                                               
identification section. The second  removes the word "agent" from                                                               
Sec   14.14.080(b),  so   that  organizations   that  the   state                                                               
subcontracts to would still be liable.                                                                                          
                                                                                                                                
2:10:28 PM                                                                                                                    
SENATOR WIELECHOWSKI said he  appreciates that the administration                                                               
has been cooperative with respect to the fiscal note.                                                                           
                                                                                                                                
CHAIR FRENCH  warned that  he's always  leery of  immunity grants                                                               
and he wants to think it over.                                                                                                  
                                                                                                                                
SENATOR PASKVAN said  part of the issue goes to  the duty and the                                                               
potential for a cause for action now.  If lots of data is held by                                                               
the  state,  the  question  is  whether there  is  a  duty  to  a                                                               
particular person.  He said it  would be  helpful to have  a more                                                               
complete understanding  of the  duty analysis  and the  status of                                                               
the law right now.                                                                                                              
                                                                                                                                
CHAIR FRENCH suggested he submit  the question in writing to make                                                               
it easier  for both the  Department of Law (DOL)  and Legislative                                                               
Legal Services to provide an opinion.                                                                                           
                                                                                                                                
CHAIR  FRENCH announced  he would  hold  SB 98  in committee  for                                                               
further work.                                                                                                                   
                                                                                                                                

Document Name Date/Time Subjects
CSSB 86 (JUD) Protection of Vulnerable Adults.pdf SJUD 4/6/2011 1:30:00 PM
SB 86
SB86 State Statutes on Undue Influence.pdf SJUD 4/6/2011 1:30:00 PM
SB 86
SB 86 Explanation of SJUD changes.doc SJUD 4/6/2011 1:30:00 PM
SB 86