Legislature(1993 - 1994)
02/23/1994 01:15 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 23, 1994
1:15 p.m.
MEMBERS PRESENT
Rep. Brian Porter, Chairman
Rep. Jeannette James, Vice-Chair
Rep. Pete Kott
Rep. Gail Phillips
Rep. Joe Green
Rep. Jim Nordlund (arrived 2:10 p.m.)
MEMBERS ABSENT
Rep. Cliff Davidson
COMMITTEE CALENDAR
*HB 505: "An Act making appropriations to and from the
constitutional budget reserve fund under art. IX,
sec. 17(c), Constitution of the State of Alaska,
for operating and capital expenses of state
government for fiscal year 1994; and providing for
an effective date."
MOVED OUT OF COMMITTEE
*HB 442: "An Act relating to criminal justice information;
providing procedural requirements for obtaining
certain criminal justice information; and
providing for an effective date."
MOVED OUT OF COMMITTEE
(* First public hearing.)
WITNESS REGISTER
SHELBY STASNEY, Director
Office of Management & Budget
Office of the Governor
P.O. Box 110020
Juneau, AK 99811
POSITION STATEMENT: Testified in support of HB 505
JAMES L. BALDWIN
Assistant Attorney General
General Civil Section
Department of Law
P.O. Box 110300
Juneau, AK 99811
465-3600
POSITION STATEMENT: Testified in support of HB 505
DEAN GUANELI, Chief
Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law
P.O. Box 110300
Juneau, AK 99811
465-4336
POSITION STATEMENT: Testified in support of HB 442
CHIP THOMA
2 Marine Way, Suite 204
Juneau, AK 99801
POSITION STATEMENT: Testified in support of HB 442
DUNCAN FOWLER
Ombudsman
P.O. Box 113000
Juneau, AK 99811
465-4970
POSITION STATEMENT: Testified in support of HB 442
BILL COTTON
Alaska Judicial Council
1029 W. 3rd St., No. 201
Anchorage, AK 99501
279-2526
POSITION STATEMENT: Testified in support of HB 442
KEN BISCHOFF, Director
Division of Administrative Services
Department of Public Safety
P.O. Box 111200
Juneau, AK
465-4336
POSITION STATEMENT: Testified in support of HB 442
PREVIOUS ACTION
BILL: HB 505
SHORT TITLE: APPROP: BUDGET RESERVE FUND TO GEN.FUND
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
02/16/94 2415 (H) READ THE FIRST TIME/REFERRAL(S)
02/16/94 2415 (H) JUDICIARY, FINANCE
02/16/94 2415 (H) GOVERNOR'S TRANSMITTAL LETTER
02/23/94 (H) JUD AT 01:15 PM CAPITOL 120
BILL: HB 442
SHORT TITLE: CRIMINAL JUSTICE INFORMATION
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
02/04/94 2257 (H) READ THE FIRST TIME/REFERRAL(S)
02/04/94 2257 (H) JUDICIARY, FINANCE
02/04/94 2257 (H) -3 ZERO FNS (LAW, DHSS, DPS)
2/4/94
02/04/94 2257 (H) -FISCAL NOTE (CORR) 2/4/94
02/04/94 2257 (H) GOVERNOR'S TRANSMITTAL LETTER
02/23/94 (H) JUD AT 01:15 PM CAPITOL 120
ACTION NARRATIVE
TAPE 94-28, SIDE A
Number 000
The House Judiciary Standing Committee was called to order
at 1:25 p.m. on February 23, 1994. A quorum was present.
CHAIRMAN PORTER announced that the committee would take up
HB 505 first. CHAIRMAN PORTER welcomed SHELBY STASNEY to
begin discussion of the bill.
HB 505 - APPROP: BUDGET RESERVE FUND TO GEN.FUND
CSHB 505(JUD): "An Act making appropriations to the
constitutional budget reserve fund established under art.
IX, sec. 17, Constitution of the State of Alaska; and
providing for an effective date."
Number 022
SHELBY STASNEY, Director, Office of Management & Budget
(OMB), Office of the Governor, thanked CHAIRMAN PORTER for
placing the bill on the committee's agenda so quickly and
expressed appreciation for the opportunity to explain the
bill and its reason for introduction. He stated:
"House Bill 505 was introduced by the Governor as a result
of the Superior Court decision and later the Supreme Court
decision that concluded that certain monies that were
received from informal conferences were deposited into the
General Fund erroneously and should have been deposited into
the Constitutional Budget Reserve Fund. The deposits, as
all of you know, were made under an Attorney General's
opinion, an opinion that was asked for in good faith and for
good reason. An Attorney General's opinion that concluded
to deposit the informal conference money into the
Constitutional Budget Reserve Fund would be beyond what was
envisioned by that constitutional amendment when it was
passed by the voters of the state. And, as I'm sure you
know, the Administration is bound by the Attorney General's
opinion as long as there is an Attorney General's opinion in
place. And so, pursuant to that opinion, we did deposit the
money into the General Fund. Later, the Superior Court, and
then later still, the Supreme Court, decided that the
Attorney General's opinion was incorrect and that the money
should have been deposited into the Constitutional Budget
Reserve Fund. The Superior Court directed that defendants,
who were the Administration, the Governor and the
Commissioner of Revenue, should deposit that money before
the end of this legislative session. And this bill is a
bill that attempts to do that.
"In connection with that lawsuit, there was also a request
for -- I'm not a lawyer, so I might use the wrong words --
an injunction that, in effect, demanded immediate repayment
of that money. There was a supplemental opinion issued by
the same Judge Reese [phon.] in answering that demand. In
that demand, and in the supplemental opinion, the judge said
a couple of things. One, that because this money, when it
was put into the Constitutional Budget Reserve Fund, it was
apparent and with full knowledge of the legislature, and
that the legislature also appropriated some of the funds
during their regular session, that it was clear that the
solution to this, the repayment of the money, was [inaudible
due to background noise - going?] to be a joint effort
between the Administration and the legislature. Also, he
said, in that same supplemental opinion, that it wasn't
clear to him that the Administration could unilaterally
transfer the money in, because of this same interface with
the legislature, knowledge of the legislature, and the
legislature having appropriated some of those funds. And
so, it's really out of those statements by the judge that we
felt it was necessary that we submit a bill, to make it
abundantly clear that the legislature was part of this
process along with the Administration. And part of the
reason for this -- we wrestled long and hard with this, and
many of the members of this committee know that we had
discussions with you and with your groups about what the
right solution to this problem was -- and the Governor
finally came to the conclusion that he wanted this problem
taken care of. He wanted the money redeposited in a manner
that would bring finality during this legislative session to
the fiscal -- not only the budget that we're going to work
on and pass in fiscal year l995, but also the fiscal year
1994 budget. And his Attorney General and others who work
with him have given him the opinion that the only way you
can have finality to this is by a 3/4 vote to, in effect,
approve the actions of the last legislature in utilizing
monies, some of which came out of the Constitutional Budget
Reserve.
"As a result of all these -- of the court decision, and of
these discussions -- the Administration introduced a bill
which is now HB 505. Fundamentally, what that bill does is
-the legislature appropriates money out of the General Fund
into the Constitutional Budget Reserve Fund. The amount of
money that's appropriated is $945 million plus interest.
$945 million plus interest is appropriated into the
Constitutional Budget Reserve Fund out of the General Fund.
This is generally the amount of money that had been
deposited in the wrong account through the end of last
calendar year, through December 31. In addition to that,
there will be interest which will have to be calculated.
Our latest calculation shows that brings the total amount
that's going to have to be paid in to about $978 million,
when the interest is added. That gets the money back into
the Constitutional Budget Reserve Fund. The difficulty is,
the amount of money that was appropriated by the last
legislature, plus the decline in our resources available
because of the decline in the price of oil between the time
of the last legislative session and now, it requires that
have all of that money left in the General Fund in order to
meet the expenditures that were appropriated in the last
legislative session, plus there would be a couple of hundred
million dollars more in addition to this that would be
required to just balance the l994 budget.
"So, while it has been suggested that the Administration
could just put that money into the Constitutional Budget
Reserve Fund and wait for a legislative appropriation
appropriating it back out, our concern is that it would not
be possible for state government to continue to operate if
the condition existed very long. So we wanted the
appropriate -- the transfer into the Fund and the transfer
out of the Fund -- to be in the same bill, so that, the term
I use is, there'll be no more than a `nanosecond' without
having that money in the General Fund, where it's really
needed to meet our obligations. Once the money, then, is
appropriated by the legislature into the Constitutional
Budget Reserve Fund, the next couple of sections appropriate
the money back out of the Constitutional Budget Reserve Fund
and into the General Fund.
"That's done in two sections. There are two parts of
section four. The first part appropriates the $416,600,000
out of the Constitutional Budget Reserve Fund and into the
General Fund. That's the amount of the misdeposited money
that was actually appropriated during the last legislative
session. The way that number was arrived at was merely a
calculation of how much money we have received through the
end of last legislative session on these kinds of
settlements, which was about $825 million. From that we
subtracted the amount of reserves we had in our spending
plan at the end of the last legislative session, the
difference then being the amount of the Constitutional
Budget Reserve Money that no longer existed because it had
been appropriated by the legislature. That's how the
$416,600,000... You can't point at any project and say,
`This is what we spent that money on.' It's just a
mathematical calculation. And the reason for this was to
make it clear to the legislature and to the public, frankly,
that this is the amount of the Constitutional Budget Reserve
Fund money that really was appropriated by the legislature
during the last session.
"Now, the next section, or subsection, transfers the rest of
the money, which is about $529 million, into the General
Fund. And that money needs to be transferred because of the
decline in oil prices. If it weren't for the decline in oil
prices, we would have been able to make it through the rest
of the year with just the $416 million which had actually
been appropriated by the last legislative session. But, the
decline in oil prices calculates out to about $600 million
less than we have available when you look at the price of
oil at the time the last legislative session ended and now.
"Now, when you go to section five, section five is the
section that tells us which subparagraph of the
Constitutional Budget Reserve Fund we'll use to transfer --
we're suggesting in this bill be used to transfer the money
out of the Constitutional Budget Reserve Fund back to the
General Fund. As you remember, when money is in the
Constitutional Budget Reserve Fund, there are two ways to
get it out. One way, subsection (c) of the Constitutional
Budget Reserve, or the constitutional amendment, says that
upon a 3/4 vote of both houses of the legislature, the money
can be utilized for any public purpose. Subsection (b) was
the subsection that talks about money being transferred out
of the Constitutional Budget Review Fund with a simple
majority if the amount available for appropriation in the
current year is less than the amount that was actually spent
in the prior year. That's, as you know, some terms that
need some defining. Anyway, subsection (b) is the
subsection that would say, `you can take it out with a 50%
majority.' Subsection (c) is the subsection that says, `you
need a 3/4 majority.' As we suggest in this bill, out of an
abundance of caution because of the Governor's desire to
have this thing done and behind us at the end of this
session, [inaudible due to background noise - we have used?]
subsection (c), which requires a 3/4 vote.
"We're very confident that if the money is taken out under
subsection (b) because of the disagreement over the term,
`available for appropriation,' that there would certainly be
a lawsuit, and we think the people of Alaska need to know
that the money that's been appropriated for capital
projects, and for other projects, for a lot of different
reasons, in the 1994 session and the 1995 session, the 1994
budget and the 1994 budget -- the people of Alaska need to
have some certainty that those funds are really going to be
forthcoming and it could have a significant impact on the
economy if there was still some question as to whether or
not those appropriations were valid. So, for that reason,
we think that we need to step out to the plate and take a
3/4 vote, and that's what this bill suggests."
Number 314
REP. JAMES asked, "This is presuming that our choice of
spending is the Constitutional Budget Reserve?"
MR. STASNEY replied that this was true.
REP. JAMES then inquired, "What happens if you don't get 3/4
vote? What's the alternative?"
Number 324
MR. STASNEY replied, "I'm sure that's something that the
legislature is going to have to determine and something that
we're going to have work [on] with you. The only other
alternative, in my opinion, is to transfer money -- I guess
we could break the law in order to do it, but I guess the
other alternative is to transfer money from the Earning's
Reserve of the Permanent Fund into the Constitutional Budget
Reserve Fund. If that were done, then this transfer in and
transfer out wouldn't be necessary. It's possible --
because all the money that's currently in the General Fund
is needed in the General Fund to meet the appropriations
that we made last year. So, that's the other option."
Number 332
REP. JAMES added, "I just have one follow-up, and that has
to do with HB 58 and the definition that we tried to give on
money available for appropriation. Are you saying that you
don't want a court decision as to what `available for
appropriation' means? Or don't -- do you think we should be
trying get a court determination of that, or are we willing
to just kind of go by the seat of our pants?"
Number 341
MR. STASNEY replied, "Well, in my opinion, we're going to
need a court determination. I think our solution is that we
don't want a court determination to be standing over, if you
will, this fix to what the court has asked us to do. I
don't think there's any question that HB 58 is going to
require a court determination. We believe that we'd like to
get l994 taken care of. We've already had one lawsuit over
1994, and we'd like to have the people of Alaska have some
finality and certainty, and we're concerned it may take some
time before we have this other court suit out of the way."
Number 353
CHAIRMAN PORTER said, "I have one or two, Shelby. As
addresses HB 58, is it a fair statement that the
Administration believes that that's a fair interpretation of
the constitutional amendment?"
Number 356
MR. STASNEY replied that this was so, but he wished for MR.
BALDWIN to address that question for the Administration
"because he's been following it and doing the testimony for
the Administration."
Number 360
JAMES BALDWIN of the Attorney General's Office introduced
himself to the committee. He stated, "We believe that the
interpretation set out in HB 58 is a fair interpretation and
in fact is consistent with how the voters were advised at
the time that they voted on the resolution that ultimately
became the constitutional amendment. I think, as MR.
STASNEY has testified, this is an area where we anticipate
will be challenged in court. It's an interpretation that,
just because of the high visibility of the subject matter,
will more than likely be litigated.
"Our intention of assisting the legislature in its efforts
to enact HB 58 has been to encourage the legislature to come
up with a good, common sense interpretation from the statute
that can be used as a tool to defend the appropriations that
are ultimately enacted for fiscal year 1994, 1995 and
thereafter. With that statute being enacted we have a
better chance of defending what the legislature does than if
it is not enacted, and I have so testified in the House
Finance Committee. There is a range of possible
interpretations that can be applied to the words of the
amendment. That's why people have referred to it as being
ambiguous, which means it is subject to more than one
interpretation. It's been our testimony that we believe a
court will give great weight to an interpretation embodied
in the statute that is proved by the legislature, since it
is the legislature that possesses the appropriation power.
I'm not sure if there's any one right answer, but I think
that a good, common sense answer, which I think is embodied
in HB 58, has a good chance of being upheld by a court of
law."
Number 405
REP. JAMES said, "I have a question that either one of you
could answer about some of the concerns that I have. We
have passed HB 58 out of the House, and it appears to me
that this flies in the face of HB 58 because this just
assumes that just to be safe we're going to get a 3/4 vote.
It seems to me likely that if we were going to implement HB
58, we ought to do everything else as it goes along with HB
58. And of course, we don't know exactly what those
decisions are. I believe the state -- the court order --
says that we need to have this done before the end of the
legislative session. So mightn't it not be prudent to get a
little further down the process to see whether there are
funds we might be able to make available or reductions that
we might be able to make that might alter these numbers and
make it fall right into the line of HB 58."
Number 423
MR. STASNEY stated, "We were concerned about that same
thing, too, REP. JAMES, and that's why in the findings we
made it clear that this wasn't an attempt to say that we
believe that that's the only way it could be done. To use
my own words, but it's in the findings, out of an abundance
of caution, we chose this route fully understanding that an
assembled majority may be the right way to go, in keeping
with the Governor's directive -- and I think rightfully so -
- that he wants to bring finality to this; this is the way
that our attorneys advised us we can have finality in the
l994 budget. Get it done, get it out of the way. We
certainly are willing to work with you and others, REP.
JAMES, regarding any potential reductions to the budget --
in addition, as I said before, to this amount out of the
Constitutional Budget Reserve Fund, is going to take another
couple of hundred million dollars to balance the 1994
budget. This certainly isn't the end of the equation, it's
just the beginning, to meet the court order."
Number 444
CHAIRMAN PORTER commented, "An observation: to get it on
the table, this lawsuit that is undoubtedly going to come,
is undoubtedly going to come from the minority members of
the House or the Senate, or both. I don't know if there's
any correlation between that and the fact that the minority
members of this committee are not here, but to that end, and
recognizing that finality certainly is the goal, I guess,
not rhetorically, is it appropriate to take this course
when, to me at least, there is a greater likelihood of a
failure to get a 3/4 vote for a whole myriad of reasons than
there is to prevail in the lawsuit that says HB 58 is an
appropriate interpretation. With that in mind, I would not
count on delaying the inevitable by taking this route."
Number 462
MR. STASNEY responded, "Obviously, there is that chance. We
kind of believed, as you stated earlier, that this is
getting it on the table. We've got a vehicle to talk about.
As I mentioned earlier, the judge indicated that it ought to
be a joint solution between the legislative and the
administrative branches, and we certainly expect to do that.
Whether or not this would delay or add fuel to the fire, I
guess is a judgment call. But in our judgment, we felt like
this got it on the table. We tried to put language in the
findings that would make it clear that we didn't believe
that this was the only solution."
Number 475
REP. JAMES said, "I think that the general public and a lot
of people that I've talked to think that when you've got a
3/4 vote for something, that you've really got something
everybody supports. And that probably is true. But how it
got there from here was the problem. I don't see a 3/4 vote
as a real panacea in this situation because it causes you
lots and lots of problems in other ways to be able to get
the 3/4 vote. From my perspective, I'd like to do this as
deliberately as possible and go through all of the
processes, if possible, of seeing what can be reduced, what
other monies might be available. And the general public is
also saying that (1) they don't want a paper transfer in and
out and (2) they don't want us to spend that money any more
than we have to. So I think that as a legislature we have a
responsibility to the people to at least review all of our
options and determine at least findings as to why the option
that we choose is the very best option that meets the needs
of the people."
Number 494
MR. STASNEY responded, "And we commit to work with you
toward that end, because we don't disagree with that."
REP. PHILLIPS called for the committee to move the bill and
then vote on the amendments.
CHAIRMAN PORTER noted a motion to move HB 505 had been
entertained and it was so moved by REP. GREEN.
REP. PHILLIPS proposed to move Amendment 1.
CHAIRMAN PORTER noted that Amendment 1 was being passed out
of committee and requested that REP. PHILLIPS discuss
Amendment 1.
REP. PHILLIPS said, "Amendment 1 does something very, very
simple. It meets all of the requirements established by the
court ruling. It is very clear. It clarifies the court
ruling. It meets the public demand that we aren't going to
do a paper shuffle. It satisfies the basic requirements
that are needed. It appropriates the money into the Budget
Reserve Fund from the General Fund and leaves it at that.
We will work through the rest of the issue as we can, and to
that point I will say that there will be an announcement
made tomorrow on the floor, under special orders, on the
budget plan for this coming year. The budget plan that
we're going to announce tomorrow will address the entire
issues of the sections that we are deleting. I would move
Amendment 1."
CHAIRMAN PORTER stated that Amendment 1 had been moved and
asked if there was any discussion.
Number 525
REP. JAMES commented that the Judiciary Committee generally
reviewed "the legalities of everything, and I think that the
proper place for that portion of this to be done would be in
the Finance Committee, which is the next committee of
referral."
Number 528
CHAIRMAN PORTER agreed that the review of the Judiciary
Committee is towards the issue of legality and
constitutionality. He said, "I know Daniella and I have
reviewed the bill from that aspect, and really find no
constitutional problems with the bill or for that matter
with the amendment, which would basically take half of the
action of the bill and leave the option of the other half to
the Finance Committee where it's going next in any event, so
as to coincide with the plan."
Number 539
REP. KOTT affirmed that "what we have got here is probably a
good tool that we can use a little bit later down the road.
I would just call your attention to page 4. I'm not so sure
that this shouldn't also be eliminated. Line 19 -- this
also appropriates the same amount of money from the
Constitutional Budget Fund [as it does] to the General Fund.
Do we want to leave that in? Or, I think, perhaps, to
confirm with this particular amendment, that should also be
included as a friendly amendment."
Number 555
CHAIRMAN PORTER clarified, "We would then be adding to
Amendment 1 on page 4, line 19, delete `this...' through 21,
ending with `General Fund.' The last word of line 19, all
of line 20 and all of line 21 on page 4 would be deleted.
Friendly amendment?"
Number 565
REP. JAMES said, "I would consider that a friendly
amendment... I find more language on Amendment 4 that I
think probably needs to go." She cited line 31 on page 4
for reference. Further discussion of the language of the
amendment followed.
REP. PHILLIPS specified, "In the amendment, we're not
dealing with the issue of the appropriation or the 3/4 vote
or anything. What the amendment gets to is just taking the
money out of the General Fund and putting it into the Budget
Reserve Fund. Period. [This] does two things. It
satisfies the will of the court and satisfies the will of
the public."
REP. JAMES responded, "The problem that I have with this is
that it does go on to discuss how this act, how this is
going to take the money back out again, the procedure, how
it is going to be done."
REP. PHILLIPS expressed optimism that the Finance Committee
would resolve procedural questions for the reinstatement of
funds, saying, "When Finance gets to it, and deals with how
they are going to put the funds back, they will amend the
findings."
Number 595
CHAIRMAN PORTER said, "With that understanding, is there
further discussion of Amendment 1? Is there objection to
Amendment 1?" There being no objection, Amendment 1 was
adopted. The committee then considered a motion to pass HB
505 as amended out of the Judiciary Committee to the Finance
Committee with individual recommendations. There being no
further discussion or objection, HB 505 was moved out of
committee.
HB 442 - CRIMINAL JUSTICE INFORMATION
Number 603
CHAIRMAN PORTER introduced discussion of HB 442, Criminal
Justice Information. He requested an overview of the bill
from representatives from the Law Department before
embarking upon specific testimony and was advised that a
previous hearing had not been held. DEAN GUANELI was
requested to provide an overview of the provisions of the
bill and advised that he would be called back later in the
hearing to testify.
Number 615
DEAN GUANELI of the Criminal Division of the Department of
Law explained:
"This bill that you have before you has been in the works
for a number of years. It does a number of things relating
to criminal justice information systems:
(1) It sets up an advisory oversight committee to assist
the agencies in dealing with criminal justice
information systems. Current law provided a fairly
unworkable committee to oversee these systems, and as
the law developed over a number of years, it turns out
that some of the systems in existence don't really fall
under the current law. It's been pointed out by a
number of different agencies -- Legislative Audit, for
example --that there needs to be some continued
oversight of criminal justice information systems. The
first section in the bill sets up an advisory committee
to provide some guidance as to how agencies ought to
deal with their systems.
(2) The second section of the bill imposes duties upon the
Commissioner of Public Safety regarding criminal
justice information systems. Essentially, what this
does, is it sets up, within the Department of Public
Safety, what's called a central depository for criminal
justice information. It basically says that we are
going to have within the Department of Public Safety a
place for keeping criminal history records where people
can go to get accurate criminal history records. It's
one thing to -- a lot of these, particularly to the
extent they are conviction records -- are public
records and you can get them at the court, but the
courts are scattered all across Alaska, and really
across the United States, and there ought to be one
central place where they are located, and that's to be
Public Safety.
(3) The third part of this bill mandates that fingerprints
be taken as part of the criminal justice process. I
think it will come as a surprise to all of you that
there is no statute in Alaska that requires that
fingerprints be taken when someone is arrested. It's a
fairly standard police practice, but, at times, and in
certain places, it's not done uniformly, it's not done
regularly, it's not done well, in other words -- the
fingerprints are smudged, they can't be read. This
sets up a statutory requirement that fingerprints be
taken, and that they be legible; and if they aren't
legible, that they be taken over again. Several years
ago the legislature appropriated $7 million to the
Department of Public Safety for an automated
fingerprint system, and the only way that can work
well, and the only way we can have accurate criminal
history records, is if the fingerprints are taken, and
taken uniformly.
"Some of the other sections require that criminal justice
agencies provide the Department of Public Safety with
information; the kind of information they need to have a
good central criminal justice information system. That is
something that does not exist in current law. Among the
most important provisions... starts on page 7... which
basically says how, to whom these records can be released.
It sets up specific statutory guidance as to when and for
what purposes these records can be released. I'll be in a
position to say some more about that later. But that is
something that is needed in current law. The remainder of
the sections impose certain requirements about correcting
information that is found to be inaccurate. It allows
people to get access to their own records, to be able to
correct them. It sets out ways in which people can do that.
And then there are a long list of definitions.
"In essence, what this bill does is, it sets up a statutory
framework for bringing Alaska really into the 21st century
in terms of criminal justice information systems and
collecting information. As you know, there are a wide
variety of uses for this information; sentencing, certain
proceedings need this information for a wide variety of
licensing functions that require checks of criminal records.
The Department of Health and Social Services uses these
records to assess the suitability of foster parents and
daycare centers, people who work with children, teachers.
For better or worse, we've got the Brady bill that was
enacted at the federal level, and we need accurate
information to be able to do the records checks required by
that, and in order for the State of Alaska to participate in
a large number of interstate criminal justice systems. In
other words, in order for Alaska to get good information
about criminals from other states, we are going to have to
have certain procedures set up, and this bill sets out a
framework for that. So, it does a lot of things, but it
basically sets up the statutory guidance for doing, really,
what we have needed to do for a long period of time. I also
have, for anyone who is really interested in the details, I
have a 17 page commentary and section by section description
of the bill, and I will provide it to counsel for the
committee. That is available if you want to get into the
details."
CHAIRMAN PORTER thanked MR. GUANELI for the presentation and
introduced CHIP THOMA.
Number 704
CHIP THOMA testified on behalf of himself in support of
HB 442:
"I strongly support HB 442 and the companion legislation
SB 276. It has been requested for over two decades,
beginning with the Governor's veto of similar legislation,
SB 387, in 1972, having to do with the right of privacy in
public safety records, and then the subsequent passage of
SJR 68, the right to privacy by a six-to-one vote of the
people, which of course became the constitutional amendment
also in 1972. Additionally, the legislative audit of 1986,
[the] 1991 report of the UAA Justice Center, the Ombudsman
report of December 10, 1992, and the many reports of the
Search group of Sacramento who have been contractors with
the Department of Public Safety for over 20 years.
Importantly, all these subsequent reports and concerns were
generated by the lack of statutes and the regulations
concerning the privacy, security, access and, importantly,
the release of criminal records, and the need for controls
so there would not be misuse of those records. I am happy
to see that this legislation finally attempts to address the
shortcomings in state law which are present in federal law;
specifically, 28 CFR, part 20.
"However, in the most sensitive area of these provisions,
the release and dissemination of records, HB 442 presently
fails in some ways to provide adequate protections. The
door is still open for abuse of records, both state and
federal. And I trust the committee will consider some minor
but substantive amendments to the legislation. In that
vein, MR. CHAIRMAN, if I may, I have the amendments that
were adopted by the Senate Judiciary Committee, and I'd be
happy to hand those out to the committee, and briefly go
through those, at least the ones that I'm interested in."
CHAIRMAN PORTER directed MR. THOMA to provide these
amendments to the Judiciary Committee counsel and to
incorporate any information he desired from his own
suggestions for the bill into his testimony.
MR. THOMA continued, "On page 7, line 1, after `maintain'
add the word `or released by an agency' instead of `by the
agency.' For the committee's information, there are over 20
state and federal agencies presently with access to APSIN,
and the definition `by the agency' should not just apply to
Public Safety. The reason I am requesting `or released' in
this section is that it does apply to page 6, line 17,
Section 3, where the `completeness, accuracy and security of
the information'... under Section 3, `to provide adequate
procedures and facilities to protect criminal justice
information from unauthorized access and from accidental or
deliberate damage by theft, sabotage, fire...' and so on. I
believe that the addition of `released' in this section will
tighten up the [indiscernible] that this information does
retain security and provide completeness and accuracy. And
I would ask the committee to consider that, as an amendment.
"Also, on page 9, line 23, after the word `records' add `and
maintains for at least three years the name of the person or
agency that is to receive the information, the date of the
information if it is released' and then add `the purpose of
the request and the nature of the information.' Both of
these additions tie the release of information to the audit
procedures that are envisioned under page 6, line 29, of the
bill, and the purpose of the request, as stated very clearly
on page 9, line 27, in the next section, Section 5, where it
states the purpose. I think that those two additions to
that section will go to the heart of the matter, which is
the release of information. Finally, on page 3, lines 7-9,
the clause beginning `In adopting the regulations, the
Commissioner shall consult with effective law enforcement
agencies regarding the fiscal implications of the
regulations,' I believe this clause is too strong and should
not be mandatory. Despite the fiscal impacts, Public Safety
and all agencies linked to APSIN should adopt regulations
that provide for the security, the accuracy and the release
of this federal and state [inaud. - history?] of
information. I believe substituting the word `shall' with
the word `may' allows the Commissioner the latitude to
consult with them, but `shall' for this purpose is too
strong. There is an onus on the Commissioner to consult
with any and every police agency, whether it be a small
town... a small village... and in effect giving the chief of
police or the person in charge of that information a hand in
determining whether these regulations and statutes should be
adopted. I don't think that was the purpose of the
legislation. I think that `shall' should be replaced with
`may'. Those are the three main amendments that I would
propose for the committee, and I hope that there will be
some consideration of those, MR. CHAIRMAN."
Number 793
CHAIRMAN PORTER invited other individuals testifying to
respond to all of MR. THOMA's recommendations save the last,
which he chose to take up himself.
CHAIRMAN PORTER stated, "Having been one of those police
officials that this is suggesting that they should consult
with, I think it is appropriate that the Commissioner should
consult with them, so as to make sure that he receives any
information that would be relevant. What this provides, is
that he consult -- not that he be guided by the response of
-- but that he does consult. Really what this is requiring
is that he at least requests the feedback from all those who
are going to be affected by this bill. And I think that's a
reasonable request. It does not, as you suggest, indicate
that he must respond to any consideration that they will
present."
Number 808
MR. THOMA acknowledged CHAIRMAN PORTER'S points, adding, "I
feel differently. I think that Public Safety has in effect
dragged its heels on implementing these regulations, and I
think that this is another [inaud. - clause?] that allows
them the latitude to again drag their heels, and I think it
should be just `may'."
CHAIRMAN PORTER responded that he appreciated MR. THOMA's
considerations and thanked him for testifying.
Number 814
DUNCAN FOWLER, Ombudsman, testified in support of HB 442,
stating:
"I am really pleased that you have HB 442 in front of you.
It has been an issue that has been a real concern in my
office for several years, and we've been anxious to have the
Governor introduce this for at least the past three years,
and I'm really pleased that it's here now. I see this as
being a very important piece of public policy legislation.
It's one of these situations where, since the late 70's, we
really haven't had any legislation that helps insure the
integrity and the security of the criminal justice
information in the state. And I think this bill does that.
It also provides a way that citizens can go in an and
attempt to correct any errors that may appear on their
records. Obviously, we get people who complain about the
fact that an error may have been made, either purposely or
inadvertently, to their record, and they want to get it
corrected. And this provides a formal mechanism for them to
go through and appeal the accuracy of their records and to
be able to have something done about them.
"The thing I probably like the most about this bill is that
it also defines the rules for the appropriate access and use
of this data and also sets out penalties for the abuse of
the data. Over the years we'd get about one to two
complaints a year that talks about somebody abusing this
data. There have been some cases where I think, frankly,
prosecution should have been considered, but there really
hasn't been a framework that the law could be able to
proceed under. This provides that. Some of the examples of
some of the kinds of things we have had over the years: We
had a Corrections employee whose daughter had a car
accident. The employee used the accident system to be able
to trace the car license numbers and he eventually attempted
to file a private lawsuit against the person who hit his
daughter. Now, that is not an appropriate use of this
information. He was using the state justice system for his
own personal economic gain. That is not appropriate. If
the law enforcement agency is doing an investigation, they
should be able to proceed and do that. There should not be
a [personal] involvement in this. We've had a couple of
welfare fraud investigations where individuals have used
APSIN data to be able to go out and, in one case, one person
was watching the business associates of the ex-spouse, and
calling up and harassing these people, and checking on
license plates on cars, calling up and giving them a hard
time -- the person was eventually dismissed, but not for
lack [sic] of a good, solid legal framework within which the
state could act.
"We also had a situation where we had a complaint that the
Governor's Office made inquiries and received criminal
justice information about a person who was taking some
issues against the Governor and that they released this
information in an attempt to intimidate other people to not
listen to the person involved. We found some very strong
circumstantial evidence that this really occurred. The
Governor's Office didn't disagree with it, but nobody could
really put the finger on the name of the person who did it,
even though we were able to find evidence of the inquiries
that were made into the justice records. And we could
document those. But we didn't know who received them. And
I think this is part of some of the logging information that
will eventually occur through having a bill like this
available. I think this helps solve things like this. My
office certainly supports this. It is a very important
piece of legislation and I am just tickled that it's up
here."
Number 867
BILL COTTON, Director, Alaska Judicial Council, testified in
support of HB 422. He said, "The Judicial Council took the
rather unusual step of voting to support this legislation.
It lays the groundwork for accurate criminal history records
in Alaska."
TAPE 94-28, SIDE B
Number 000
MR. COTTON continued his discussion of HB 422:
"...[We have a] bit of a unique interest... in that the
legislature assigned us a task last year to work with the
other criminal justice agencies to coordinate the various
criminal justice computer information systems. We have
hired some consultants to work with us. We have come to
believe that this is just an essential first step for that
task, also. We are going to share information and save time
by not reentering information time and time again. We have
to be able to accurately identify the criminals in the
system and tie their identity to fingerprints, so it is
accurate. This is really a prerequisite for any
coordination of the data in these different systems.
"We did propose two minor changes before the Senate
Judiciary Committee that were adopted there. One would be
to add official counsel as a member of that advisory group.
I have given the exact language to your counsel. The other
was suggested by our consultants. There is, on page 3 of
the legislation down at the bottom, I believe it's on line
30, a requirement that a criminal justice agency taking
fingerprints required by this section send the fingerprints
in to the central office within five working days. Our
consultants suggested that that be shortened to one working
day. The point there is -- not that there couldn't be
extenuating circumstances -- but at least the standard
should be to get those things in as quickly as possible to
avoid situations where someone might be released because
their real identity wasn't known.
"With or without those changes, the Council believes this is
a very necessary and important piece of legislation that
impacts the criminal justice system in numerous ways."
Number 067
REP. NORDLUND tendered his strong support for HB 422,
saying, "I think it's very good. I'm glad it's finally come
down the pike. I've got a letter here from University of
Alaska from John Angle. He would like a representative from
the University of Alaska on this board -- is it a board? --
advisory to the Department of Public Safety. I was
wondering if you had an opinion about that?"
Number 088
MR. COTTON replied, "No, I don't, off the top of my head. I
hadn't heard -- I hadn't seen that proposal before. The
University has worked on the statistical side of things. I
think that there's a trade off between getting more
information and not having a board of an unwieldy size. I
don't think I have any opinion. The Department of Public
Safety might be in a better position to comment."
Number 100
REP. NORDLUND said, "For the information of the committee, I
am going to put this amendment forward to have the director
of the University of Alaska Justice Center Statistical
Analysis Unit added to this group. I have a letter here of
back-up that's written to my staff that I'll distribute."
Number 109
MR. COTTON noted, "The reason that the Judicial Council
asked that it be represented at this group is not so much
because we have done statistical working reports in the
past, but because of the work with the Citizen Commission
and this recent computer coordination project. That was
really the focus of the request by the Judicial Council."
Number 116
REP. KOTT said, "You prefaced your remarks on the bill with
an opening statement that has me somewhat puzzled. You
said, `The Council has taken a rather unusual position.'
What is so unusual about [indiscernible - positioning
yourself]?"
MR. COTTON replied, "It's not an unusual position. I think
it's unusual for the Judicial Council itself to vote to urge
the legislature to adopt or not adopt legislation that's
really -- that doesn't have a direct impact on the Judicial
Council. And the only reason the Council is doing it in
this case is because it does have a direct impact on that
project which you folks assigned us. So, it's not an
unusual position; only that the Council doesn't usually
endorse legislation."
Number 139
DEAN GUANELI, Department of Law, and KEN BISCHOFF,
Department of Public Safety, were recognized to testify
further in support of HB 442.
MR. GUANELI stated, "As you can say, this bill has fairly
broad support. The House Judicial Council, the Criminal
Justice Working Group, which includes members of the defense
bar, the Ombudsman's Office, certainly the Departments of
Law and Public Safety, and other agencies [loud and
sustained paper shuffling, words inaudible]. As the other
speakers have indicated, it is an important piece of
legislation. Let me just give you one example that MR.
FOWLER touched on. Right now there is no provision in
Alaska law [inaud. - requiring?] fingerprinting, but there
is also no provision in Alaska law that specifically makes
criminal justice information like this confidential by law.
There is [no?] a criminal statute that makes misuse of
confidential information -- so when we get someone who has
misused this information we're stuck. If we can't do
anything else to them, there is no criminal law that we are
able to prosecute. Under this legislation it clearly states
that this information is confidential by law, and therefore
the [inaud.] that are on the books are useable. [Paper
shuffling continues to partially obscure words.] In the
past what has happened is that officials [have] disciplined
them [usually] by firing them. But when we run into
situations where it is not an employee, it's somebody else
who's gotten some information, it makes it difficult to take
any action.
"This bill does an awful lot of things for the system... The
idea that a criminal justice information system be available
to all the agency supports and that it be accurate [inaud.]
is being used more and more frequently. I think that
legislation like the sex offender registration bill, which
basically says we want to know when sex offenders are in our
community, I think that kind of legislation is furthered by
this bill.
"One thing that this bill does, and I want to clearly point
it out, that's a major change from the way we do things
currently, is that it makes a wide variety of information
more accessible to the public than it is right now. Under
this bill, anybody in the public can go in to the Department
of Public Safety and say, `I want to find out information.
I understand that my next door neighbor just got released
from prison. I want to find out what his conditions for
probation are.' That's something that would be very
difficult to find out right now. This bill will allow that
to happen. I think it's something that is in the public
interest. If someone has just been released from prison,
the public has a right to know, `Should that person be
drinking? Should that person be dealing with children?
What conditions are restricting that person's activities?'
I think it's in everybody's interest that we be able to do
that. There's a limit, there's a time limit on that
information. If ten years have passed since the person was
released from state supervision, then you can't get access
to that information. So at least there's some bottom line.
"I know a lot of people are frustrated when they try to find
information about someone's past criminal record and they're
told, `Well, this is a Fairbanks case, so go to Fairbanks
court and try to find it. It's only recently that the
courts have started to get automated. Some of their old
records are on microfilm, microfiche... and it's very
difficult. This is really the only practical source for
them. I think we need a good statutory framework to allow
the kinds of things that Bill Cotton was talking about to
occur. That is, to allow all the systems to interact
together, to make the systems efficient and effective so
that the Department of Law, for example, is not entering in
information about one person and the Department of
Corrections is entering separate information, and the
Department of Public Safety and the court system... it would
be nice if at one central location the information could be
coming and there could be a central spot for those records
that we could be assured have some high level of accuracy.
This bill sets the framework for doing all that.
"It doesn't mean it's going to get done immediately. Public
Safety is working diligently to upgrade and improve their
criminal justice information systems and I think even has
some federal money to allow it to do that. The FBI sets the
standards for improving criminal justice information systems
and these statutory requirements go along with those federal
guidelines."
Number 280
KEN BISCHOFF, Director, Division of Administrative Services,
Department of Public Safety, sketched in the scope of the
criminal justice information issue in Alaska, saying, "In
Alaska, we have approximately 330,000 conviction records,
felony convictions, and approximately 135,000 record
subjects. Nationally, there are over 50,000,000 felony
records. In order to do a national search -- I might add
that between 20 to 30 percent of all offenders have a record
in more than one state -- in order to do a national search,
you need the fingerprints in order to conduct that search.
If Alaska is unable to do that search, or have the
fingerprints to conduct a local search, we cannot do it with
positive identification. We can only do it on a name-check
basis, and we have occurrences of up to 24 aliases on
certain records. People tend to use different names. They
tend to get different pieces of ID. Unless we have the
fingerprints we don't know who they are. So, I'm kind of
the mechanic behind the scenes. Dean's done an excellent
job of putting a bill together that will give me and my
staff the ability to proceed and do a better job of
maintaining a criminal history database."
Number 293
CHAIRMAN PORTER brought forward a motion to move Amendment 1
and REP. NORDLUND moved the amendment.
REP. NORDLUND remarked, "I think that it's important, given
the fact that a lot of this is an academic exercise
involving analysis of statistics and information, that we
have a representative from the University of Alaska on this
advisory board. I, just philosophically, believe that we
need to do a better job of utilizing the resources available
at the University of Alaska to help the legislature and the
executive [branch?]. Other portions of the executive branch
do their functions -- MR. ANGLE lays out here in the letter
written to my staff person the reasons he thinks that he
should be included on this advisory board. I would note
that there are eight members already. Sometimes it's a good
idea to have an odd number of people on a board anyway, in
case there happens to be a tie vote. I hope members of the
committee will support this amendment."
Number 328
REP. JAMES affirmed REP. NORDLUND'S expressed belief
concerning the inclusion of a University representative.
She said, "I, too, I think that we are leaving a real
deficit in our ability to function in this state by not
including the ability of the people at the University of
Alaska to be involved. One question I have, though -- What
would that do if anything to the fiscal note?"
Number 339
REP. NORDLUND replied, "I imagine that we would need to get
a fiscal note from the University of Alaska on this.
Although, given the fact that MR. ANGLE has taken the
initiative upon himself to try and get on this board, I
would assume that they would try to keep their fiscal costs
down, if anything. I noticed that most of the other
departments that are on this board have turned in zero
fiscal notes, and they're just doing it with existing
resources, I imagine, except for Corrections."
REP. JAMES reminded the committee that this did not include
travel expenses.
REP. NORDLUND continued, "That's a good point. I'd be glad
to ask the University to have the fiscal note available to
the Finance Committee."
Number 351
CHAIRMAN PORTER said, "I understand DR. ANGLE'S request to
add a representative from his program. I have some
sympathies for the University of Alaska. At the same time,
I have some sympathies for trying to make a very difficult
program like this one function. And this is now an eight
member advisory board. There are certain requirements
within the bill that this advisory board must meet and every
person that is added subjects the board to more potential
for not being able to accomplish their tasks.
"I'll speak at the same time to Bill's suggestion that the
Judicial Council wants to be a member. For the same reasons
I would not support them. The Judiciary has a slot on the
Commission already, and certainly could appoint Judicial
counsel if they so choose. But, in all fairness, the
University has a particular bent for interest within this
piece of legislation -- statistical analysis. That's their
job. If there is a perceived need for that, the University
certainly is a resource that has been and can continue to be
tapped for specific identified projects."
CHAIRMAN PORTER reiterated, however, that he felt an eight-
person board was sufficient. He noted that the board would
be meeting in public and that other entities could
participate "as may be relevant to their particular
interests," whilst perhaps those interests might not be
"relevant on an on-going basis."
Number 392
REP. JAMES, while acknowledging the virtues of a smaller
board, enjoined the committee to be mindful of many past
opportunities that had not been seized to engage the
resources of the University. She remarked, "Through my
evaluation of what this group is going to do, I believe that
what they are going to do is implement this system of
statistical information... I believe that someone with
statistical information skills should certainly be a part of
this group." She further marked the need to cease sending
chronically negative messages to the University which
demonstrate an absence of faith in the University's work and
research.
Number 417
MR. BISCHOFF responded that statistics, while important, are
"not anywhere close to the primary purpose of the criminal
history record database. The criminal history database
exists to base criminal justice decisions. Police use it to
investigate crimes, identify individuals. Examples include
taking latent fingerprints off a phone in a phone booth from
an offense in Anchorage; running that latent print through
our system and making an identification. Having the
person's criminal history record available so that we can
make the identification; find out what kind of a person that
is and is it a possible subject, a probable subject and make
an arrest. To have a complete criminal history database, we
need the fingerprint, we need the police to cooperate to
make the arrest entry in APSIN, we need Corrections to take
the fingerprints and submit quality fingerprints to Public
Safety for verification of that person's ID, and if that
person has criminal information under another name, then we
also need to contribute to that police officer and for the
prosecutors in the court to consider upon that case. We
need the courts to submit judgments which are the results of
whether the person is guilty or not guilty. We need the
prosecutors to [advise] us whether a decline to prosecute is
a budgetary issue or whether it is not a good case... so we
have a complete criminal history.
"Statistics are important for public policy decisions, but
that is five percent of this issue. I am reading from
Dave's commentary which was provided in the packet to the
committee:
In order to keep the board to a manageable size, the
board's membership is limited to commissioners from
five state departments most directly involved in
criminal justice matters. The Chief Justice, the
Municipal Police Chief, as well as a public member
appointed by the Governor."
MR. BISCHOFF itemized cooperative ventures between the
University and the Department of Public Safety, including,
among others, preliminary efforts to prepare for the Brady
bill. He affirmed the vitality of past and present
cooperation. He cautioned, however, that "to the extent we
put additional non-line agencies on this board, it's going
to take away from the direct functional purpose, in my
opinion."
Number 471
REP. KOTT stated, "I am going to speak out against this
amendment. For the most part, for very similar reasons as
you spoke against it. I think that a membership of eight is
certainly a justifiable number. I really don't think we
need to have an odd number. If you look at the function of
the board, it's an advisory board only. For that reason, I
don't think we need to have an odd number. Certainly there
a number of other entities that could be included in this
board. I think it's a policy question as to how big a board
we want. I think we have a good number right now, and I'd
be open to striking out one or two of these entities that
we've already identified and replacing one or two of those
with perhaps some of the ideas being circulated at the
present time. But I think the present number, the entities
we've identified, are certainly supportive of the board
membership that we've addressed here."
Number 489
REP. JAMES said, "I tend to agree that too many is too many,
and I'd like a smaller number, too. But, just in response
to the information that I understand this is all about, it
is gathering information and making it readily available
when you need it. To me, that is the same as statistical
information, and maybe it's because I'm using the word
`statistics' as a general term -- but being able to put that
information in and get it out in a timely manner certainly
does take some expertise in that area. I believe there
could be some assistance from someone in that area. I am
willing to concede that nine is too many. I don't think we
need that many people to make decisions and to be on an
advisory board, but I believe that I do understand exactly
what it is that we're planning to put together here, and to
be able to retrieve."
Number 503
CHAIRMAN PORTER sated, "I guess, one of the two members of
the Criminal Justice Working Group that hasn't been
mentioned yet is the Chair of the House and Senate Judiciary
Committee, who are also members of that group that has
supported this bill. From that position in my previous
life, I know that this bill and other renditions of it have
been under discussion, and this particular bill has been
under development, for four years... and discussion for a
lot longer than that. There is an awful lot of requirement
for interagency within the state and intergovernmental
intrastate cooperation to make this thing work -- and an
awful lot of that negotiation process, if you will, has gone
into the bill that's in front of us. With that in mind, I
would suggest that we should have overwhelming need to alter
that, as its effects we may not know."
Number 524
MR. GUANELI commented that of the eight proposed board
members, one of whom was a member of the public, seven were
the heads of agencies with "the most direct involvement in
getting the system to work on a day-to-day, on-going basis
where operation of the system is really, if you will,
necessary to their functions. [These agencies] all have on-
going criminal justice information systems and they're
trying to make them all work right now." MR. GUANELI
delineated the key functions and significance of each
proposed board member and the agency he or she represents in
developing an optimally designed criminal justice
information system. He noted the existence of a trans-
agency "technical users group" focusing on the technical
issues involved in computer systems and the effective
generation of statistics.
Number 564
REP. JAMES said, "I want to let you know that I certainly
support technical information and getting on the technical
track. One of the things that has distressed me about the
state is all the fragmented amounts of material that we
have, and no one can get [to them]. So I am very supportive
of this bill for that reason, because it is going to make
those things come together in a single source where
information can be gotten back. I think we need that very
desperately."
Number 574
REP. NORDLUND commented, "Not to belabor this amendment any
more... my intent [in suggesting] this person be on the
advisory board was to assist, not to be cumbersome, to the
board. If it is the best judgment of this committee that it
may be more cumbersome, then so be it. But I hope the board
will certainly employ the resources of the University as you
go through this effort, as well as the Judicial Council. I
think we've probably had enough discussion about this."
Number 597
MR. GUANELI said, "MR. CHAIRMAN, I'd be more than willing to
discuss some of the other amendments if that is the
Chairman's wish." He continued at the request of CHAIRMAN
PORTER. "There was a suggestion by MR. COTTON that the time
frame for submitting fingerprint information from local
police departments to the Department of Public Safety be
changed from five days to one day. The five day
provision... came from consultants that the Department of
Public Safety had contracted with, members of an
organization called `Search Incorporated,' a nationally
known consulting firm that works with police agencies all
across the country. Probably the most common time frame for
submitting fingerprints to a central agency is three days,
across the country. It ranges from a minimum of about 24
hours to a maximum, I think, seven to ten days. It was the
feeling that five days is appropriate for Alaska. This is
not New York City where at the press of a button you can
have something delivered across town, or with a courier. I
think that some flexibility is needed, particularly for
small police departments that may want to just gather up a
number of fingerprint cards, send them in once a week to the
Department of Public Safety, or because they are such a
small police department they simply don't have the staff
available to do things on a daily basis. So there was a
feeling that five days is something that is workable for
Alaska. Now, if other consultants had come in and said that
24 hours is workable for Alaska, that's fine, but I think,
the Department of Public Safety thinks, that five days is
appropriate. I would hope that the committee might confer
with somebody from a small police department and find out
how it's going to affect their operations. I think that
paperwork tends to drown small police departments, and I
think that this is another example of that. I think we would
feel more comfortable that the records would be submitted on
a regular basis... 24 hours may not be manageable."
Number 632
REP. KOTT said, "Since you have the expertise here, it would
stand to reason, I think, that most departments would supply
this information as readily as possible within their means.
I certainly am not willing to make it mandatory to provide
the information within 24 hours if it's going to impair
their operations. I am sure that they are going to give
this their utmost attention and not sit on it, understanding
the importance of fingerprinting."
Number 645
CHAIRMAN PORTER stated, "The agencies that will be dealing
with the vast majority of these records will be submitting
them within a day. The problem of making it mandatory on
everybody is that the Department of -- I always say Iggigik,
I am sure there is not a Department in Iggigik, and I've
never been to Iggigik, so no offense to Iggigik, but that's
my typical village -- that's a one-person operation. And if
there is an arrest there, there might be something that
person has to do right after that, and it doesn't involve
sitting down at a typewriter and typing up the necessary
forms to submit... that person is going to get at it just as
soon as he or she can, but a one day turnaround or something
like that is just not reasonable."
Number 658
MR. GUANELI said, "And I think the other practical
consideration is that a lot of the people who are arrested
are intoxicated. It may not be practical to take
fingerprints right away. They may be struggling with you,
they may be fighting. If you get them at all they're going
to be smudged and you'll have to do it again. It may be
better to wait 24 hours or 36 hours or until the person's
been to court -- there are just a lot of practical
considerations [involved]."
Number 664
CHAIRMAN PORTER, assessing committee member sentiments on
Amendment 1, formally objected to the motion and called for
a role call vote unless there was further discussion.
Number 689
REP. NORDLUND said, "I'm not sure just what all the dialogue
was, but if we were going to interject a member from the
University of Alaska, I would think that we should remove
someone else. And since that's already there, I think
probably I would be opposed to this."
REP. NORDLUND withdrew Amendment 1.
CHAIRMAN PORTER announced the withdrawal of Amendment 1.
Number 695
CHAIRMAN PORTER asked MR. GUANELI if he had the opportunity
to consider MR. THOMA's suggestions.
MR. GUANELI responded, "I did. He made these same
suggestions at the Senate Judiciary Committee. To a large
extent, we didn't have a problem with them. The Senate
Judiciary Committee made a slight wording change to one of
them. So, if you want to go over them, I can state our
position on these. I think it's fair to say that we would
not have an objection to the amendments made in the Senate
Judiciary Committee. I think counsel for your committee has
a copy of those amendments." He referred to page 3, line 8,
and the suggestion by MR. THOMA that the word "shall" be
changed to the word "may" and discussed its possible
implications, concluding that substitution of the word "may"
would not hinder or impede interagency communications or
consultations. He said, "I think that having an advisory
group that includes all the affected agencies means that as
a matter of course [relevant matters] will be discussed with
them. So, that was the basis on which we did not have any
objection in the Senate Judiciary committee on the changing
of `shall' to `may'."
Number 720
COMMISSIONER BURTON tendered the opinion that "shall" was
preferable to "may" and that the word "shall" was not
binding.
CHAIRMAN PORTER added that communicating would not in any
case be a cumbersome duty given that all involved would be
present on the same computer network.
Number 745
CHAIRMAN PORTER said, "In front of us is Amendment 2 which
that incorporates two of the things that were incorporated
in the Senate version."
REP. JAMES moved Amendment 2. There being no further
discussion, Amendment 2 was adopted.
Number 765
CHAIRMAN PORTER said, "I believe we have dealt with all of
the concerns. We have then in front of us HB 442 as
amended."
REP. JAMES moved that HB 442 be sent out of committee as
amended with individual recommendations and fiscal notes as
attached. There being no objection, HB 442 was moved out of
committee.
The meeting of the House Judiciary Standing Committee was
adjourned at 2:55 p.m.
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