Legislature(1997 - 1998)
05/07/1997 01:40 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
JOINT SENATE-HOUSE JUDICIARY COMMITTEE
May 7, 1997
1:40 p.m.
SENATE MEMBERS PRESENT
Senator Robin Taylor, Chair
Senator Drue Pearce, Vice Chair
Senator Mike Miller
Senator Sean Parnell
Senator Johnny Ellis
HOUSE MEMBERS PRESENT
Representative Joe Green, Chair
Representative Con Bunde, Vice Chair
Representative Jeanette James
Representative Brian Porter
Representative Eric Croft
Representative Norm Rokeberg
Representative Ethan Berkowitz
COMMITTEE MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
Hearing on the Alaska Public Safety Information Network (APSIN)
WITNESS REGISTER
Commissioner Ron Otte
Department of Public Safety
P.O. Box 111200
Juneau, AK 99811-1200
Commissioner Margaret Pugh
Department of Corrections
240 Main St. Suite 700
Juneau, AK 99801
Deputy Commissioner Del Smith
Department of Public Safety
P.O. Box 111200
Juneau, AK 99801
Diane Schenker, Criminal Justice Planner
Department of Public Safety
5700 E. Tudor Rd.
Anchorage, AK 99507-1225
ACTION NARRATIVE
TAPE 97-35, SIDE A
(THE FOLLOWING IS A VERBATIM TRANSCRIPT.)
CO-CHAIR GREEN:
...together the Joint House-Senate Judiciary Committee meeting
this afternoon, at 1:40. We're scheduled to go to 3:30. I hope
we'll have our business finished by then. We have present from the
House Representatives Porter, Berkowitz, Croft, James and myself -
we do have a quorum from the House and I'll ask Senator Taylor --
and Rokeberg ...
CO-CHAIR TAYLOR:
Yes, thank you, Representative Green. I'll call to order the
Senate Judiciary Committee and declare there is a quorum present,
that being Senators Ellis, Miller, Parnell, Pearce and Chair Taylor
- the entire committee.
The purpose of the hearing today is to ask questions and to
inquire further of the Departments of Public Safety and Corrections
concerning violations of what is called the APSIN system which is
the Alaska Public Safety Information Network. This system was
created in the early 70s and developed by the Alaska Justice
Information System to become a computerized data base of
information on the criminal history of individuals.
Fearful that such a system was the precursor of a big brother
government information bureaucracy, legislators responded with a
constitutional amendment which was handily ratified by all of the
voters. The concern has continued and we have had various changes
and modifications to that law, the latest being only about three
years ago, when, as the result of an Ombudsman's investigation and
sanctions that eventually resulted in the termination of an
employee. Additional modifications were made at that time by the
Legislature, which modifications were basically drafted by the
Department of Law and the Department of Public Safety and the
Governor's Office - with the Legislature - to make certain that
violations of that type would not be occurring in the future.
It is with that background that we entered an era during the
last year when it was revealed because of inquiries made about
strange and rumored behavior. I should say, I guess, that
inquiries or abuses, violations, whatever the proper term is, of
the APSIN system may very well have occurred during the last
election cycle. It was then the Department of Public Safety
responded and returned back a summary report of their findings.
That summary report then generated a letter from the leadership
back to the Department of Public Safety making inquiries about
matters found within the report. The response to that letter of
inquiry is the purpose of today's hearing so that the department
may have - the department was afforded some time - although we must
all admit it was very brief - to review and look further into this
matter. And, I have asked both Commissioner Ron Otte and
Commissioner Margaret Pugh to be with us today to respond to the
questions that the Joint Committee members may have concerning this
matter.
I want all members of both the House and Senate to understand
that I consider this, and I believe we all do, a very serious
matter and we're all hoping that it is not serious. It will be a
serious matter if, in fact, people's privacy has been invaded, and
if, in fact, these matters, or these things, were done in a fashion
that violates rules, regulations, or statute laws of the State.
And, probably hanging over all of us is the concern that if this is
done to members of the Legislature, to elected officials, what
protection then does the general public have from the same types of
abuses?
And, I think with that very serious concern, we call ourselves
together today and look forward to Commissioner Otte and
Commissioner Pugh in helping us find our way through this scenario
that has developed over this time. Commissioner Otte, you said to
me before the meeting you had brought other members from both the
Department of Law, Corrections, and your own department, and you'd
mentioned if you could that we could assemble them at the end of
the table. If that's how you'd like to proceed that would be fine.
CO-CHAIR GREEN:
While Commissioner Otte is coming forward I want to remind the
body that while this is very serious, that we do intend to try to
get to the bottom of what happened and perhaps go to the point of
what we can do to prevent it. I don't want this to turn into a
witch hunt, and that is not the intention. This is not an
accusatory review. This is just an explanation and perhaps a way
to cure. So, with that in mind I will want to curtail activity or
questions that go askew and become accusatory. We really are
looking for the answer rather than any particular thing.
Representative Otte?
CO-CHAIR TAYLOR:
Well, before you begin, considering the serious nature of the
known APSIN abuses and the potential broad scope of additional
potential abuses, it is critical that the Legislature conduct these
hearings under oath to prevent the potential compromise of any
future prosecution, should one develop. Therefore, pursuant to
Alaska Statute 25.06, I would ask the witnesses to please stand and
raise your right hands and I would administer the oath.
REPRESENTATIVE BERKOWITZ:
Mr. Chair, before we begin ...
CO-CHAIR GREEN:
Representative Berkowitz?
REPRESENTATIVE BERKOWITZ:
I have never been in a proceeding where we've sworn witnesses.
I don't see any particular reason to do so at this time. I'm
concerned that if this proceeding focuses on events that are
currently under criminal investigation, it will interfere with the
integrity of those investigations. I'd ask members who are present
here to be aware of that possibility.
CO-CHAIR GREEN:
I appreciate that Representative Berkowitz.
CO-CHAIR TAYLOR:
Thank you Representative Berkowitz, we all understand that.
In fact we have often, in the past, sworn witnesses during
testimony on the Senate side over the last couple years. We have
had occasion where we did swear witnesses. It's an authority that
the Legislature has always had and possesses. It's because of the
gravity of these concerns that I think all parties would feel more
comfortable if, in fact, we were in that position today. If you'll
all please raise your right hand. Give me your name. Do you
solemnly swear or affirm that the testimony you're about to give in
this matter will be the truth, the whole truth, and nothing but the
truth? Thank you. You may proceed.
CO-CHAIR GREEN:
Representative Otte?
COMMISSIONER OTTE, DEPARTMENT OF PUBLIC SAFETY:
Thank you Mr. Chairman...
CO-CHAIR GREEN:
Excuse me - pardon me, not Representative, Commissioner.
COMMISSIONER OTTE:
Thank you Mr. Chairman. For those of you here who don't know
me well, please be assured that I do have the greatest respect for
this body and for the process of government and I hope you all know
me well enough that I certainly would always provide you with the
most accurate and detailed information that I possibly could. I'd
like to restate a couple of the opening remarks made by Senator
Taylor because I certainly concur with what he had to say, and that
is that I too, consider this a very serious matter and I also hope
that it is not serious. Mr. Chairman ...
C0-CHAIR GREEN:
Thank you. Do you have your people here to answer questions?
Do you have them with prepared statements?
COMMISSIONER OTTE:
Mr. Chairman, I don't think anyone here has a prepared
statement necessarily, but it probably would be helpful for me, and
maybe for the committee, if I started at least at the beginning and
walked through to where we are today and possibly that will
generate some additional questions or comments.
CO-CHAIR TAYLOR:
Go right ahead and thank you.
COMMISSIONER OTTE:
Back in probably the third week or so in January of this year
the Attorney General contacted me and asked if it was possible to
determine who might have made an inquiry concerning a member of
this body. I assured him that my recollection was that there was
an audit procedure that would identify the name of the operator,
agency, and time that any inquiry was made concerning anyone. I
was specifically asked if I could check to determine if there had
been an inquiry made against Senator Ward prior to a September 26th
or 27th newspaper article in the Anchorage Daily News. I did have
the Deputy Commissioner initiate that request with the security
person for APSIN and was informed that no, there had been no
inquiry concerning Senator Ward prior to the September 27, 1996
newspaper article. I was also informed that this was the second
time that that request had come to them as Senator Ward had
personally contacted the Department of Public Safety's security
person for APSIN in October of '96 and they had run that same
inquiry at that time.
I did report this back to the Attorney General, however the
Deputy Commissioner and myself, after reporting that information,
thought it appropriate to expand the initial request, and did
conduct an audit after the newspaper article to see if anyone had
accessed the record of Senator Ward and we found that there had
been four inquiries concerning his name after the article. That
concerned me a great deal in as much as these were made by
Department of Corrections' personnel and I could think of no
legitimate reason at that time for that to have occurred. I did
provide this information to the Attorney General and told him that
I was going to continue to pursue that information in the normal
fashion that we would conduct an audit. We also expanded that to
run an audit on a couple of other people that we thought were
involved in high profile political races in the Anchorage area.
And, at least in one of those instances, information came back that
there had also been, what we considered to be at that time, a query
concerning the name that was not appropriate.
Around February 2, and with that information, the Deputy
Commissioner and myself sat down with Speaker Phillips and Senate
President Miller and provided them with this information we had
found in the audit. We followed that up with a meeting with
Senator Ward and the other individual who had been accessed
inappropriately. We advised Representative Phillips and Senator
Miller that we were going to continue our audit process and
probably would expand to other individuals and that I wanted them
to be aware of this information because it was apparent from just
the rumors that had gone around that there were other people within
the Legislature that were aware of some portion of this
information.
As we continued to expand the audit, we found either responses
where an agency was unable to determine exactly why they accessed
a record, or we found instances where clearly we did not feel, and
the agency did not feel, that there were appropriate reasons to
access the records. After a number of those had come to my
attention, and the Deputy Commissioner's, we elected to simply do
an audit on every member of this body to determine if anyone had
accessed records inappropriately. We also included additional
people involved in political races during the last campaign. I
believe we conducted an audit on a total of 87 names. I would like
to stress that we did not, at any time, access any other
information about any member of this body or anywhere else except
to determine if someone had inquired against your respective names.
We continue to keep Representative Phillips and Senator Miller
advised. I also did receive around the first or second week of
March a request in writing from Senator Miller and Representative
Phillips to in fact run all of the members of the Legislature and
include them in our audit process. I received a number of
individual requests from various members of both the House and
Senate who had heard, I'm sure, the rumors and they also made
specific requests that they be included in any audit. I assured
all of those people that contacted me that they would be queried
and that we were doing all members of the Legislature.
In discussing this with Representative Phillips and Senator
Miller I asked that we be allowed to at least complete our entire
review which I explained to them would take some time, and that we
not discuss this outside of the four of us until we had a chance to
complete that review. There was, I think certainly, significant
agreement and understanding by both Represenatative Phillips and
Senator Miller that that would be, and assure, the best review and
the most thorough review. Unfortunately, sometimes the best laid
plans go awry and it did become publically discussed and there were
inquiries from the press and certainly from a variety of
legislators themselves.
So, at that time we did stop and provide a snapshot of where
we were in time, and I can tell you that when the briefing was
provided to the Republican leadership of both the House and the
Senate, and when we responded to the press, that we were
approximately 30 percent complete with our review and
investigation. And that's just an estimate, that's certainly not
scientific, but we recognized that we were fairly early on in the
process.
As I said from the start, I certainly share Senator Taylor's
concern. Were I not concerned and did I not think this a serious
matter, we would not have very aggressively expanded the audit
through our own initiative. I think anytime employees of my
departments, another state department, or any municipal department,
have the public trust, there is an expectation that they act
accordingly and I certainly am one who intends to hold people to
that standard.
We are not through with our audit or investigation, however
you would like to describe it, but we continue to work on it. We
do have 17 inquiries presently assigned to the Alaska State
Troopers for conducting additional follow-up. We have 27 inquiries
that we've yet to receive satisfactory explanations from the
various agencies around the State. And we have sent them a follow-
up letter that says basically, provide us with documentation
supporting why an employee of your department might have accessed
a particular record or we will ask the Alaska State Troopers to
conduct a review. We have given them until May 23rd to complete
their research and response to us and I'm hopeful that most
agencies will be able to produce the timed documentation that
satisfies our APSIN security people that there was in fact a
legitimate reason to query a record. If not, we will include those
in the State Trooper follow-up.
Mr. Chairman, I -- in terms of the process generally, where we
started, how we got to where we are, I realize it's fairly concise
but that is an explanation of where we are today.
CO-CHAIR TAYLOR:
I really appreciate that Ron. I want you all to realize
something. I have known Commissioner Otte for some number of years
and have the highest of faith in your personal integrity, sir, and
I hope you're not taking any of this in any personal fashion
because it certainly not intended by the Chair in this fashion and
I know that other members feel as I do. We have the highest
respect and regard for you. Did you have an opportunity in the
last few days to review and assess some of the questions that were
posed by the letter I think that was signed by President Miller and
Speaker Phillips.
COMMISSIONER OTTE:
Mr. Chairman, yes, I've looked at the letter. I don't have a
completed response yet for Senator Miller or Representative
Phillips. I hope to have that to them by the close of business
tomorrow and also to the Chairs of the two Judiciary Committees but
I have read the questions, I have tried to couch [ph] the
information that we've asked back from staff in a manner that would
help answer those for you and I may not be able to answer each one
to an absolute conclusion but I'll certainly do the best I can in
doing that.
CO-CHAIR TAYLOR:
Maybe -- I'm sorry Joe, did you have questions that you wish
to make?
CO-CHAIR GREEN:
Just the fact that you have indicated that it's going to take
some time. How far along have you been able to get since this
joint letter was sent to you as far as -- and I understand that
there were certain numbers that were earmarked as perhaps
unauthorized. Where do we stand on those? Seventeen, I believe.
COMMISSIONER OTTE:
Mr. Chairman, we did an audit on 87 names that include all 60
members of the Legislature. Out of the 87 names we conducted an
audit concerning access. We found that there were 40 individuals
where there had been some query by some agency within the State of
Alaska. The first information was provided back to our querying
these agencies show that in 37 cases, 37 of the accesses, there
really wasn't any question that they were authorized and they were
for legitimate reasons. It certainly did not indicate that anybody
was the subject of a criminal investigation but they were
legitimate inquiries.
In now 20 cases, it was clear from the agency's response that
they were absolutely unauthorized. No question about that. Some
of those have been assigned to Alaska State Troopers to conduct
some additional follow-up and review. There were 27 responses
where the agencies told us we think these are okay, but it's going
to take us an awful lot of time to do this research, could you just
take our word for it basically. And we've sent back a letter
saying no, don't think so, we do want you to take the time to do
the research, and we do want to see what it is that caused your
employee to make this inquiry. Absent that feedback we will do it
ourselves with one of our Troopers. So, the end part of that
process, and the 17 that we've assigned for review by the Troopers
is ongoing at this time.
CO-CHAIR GREEN:
If that's in process do you have some feel as to how much time
this might take? Initially we were talking back in January, and
most recently last month -- I was just wondering if you have some
idea of how long the investigation might take. One of the concerns
I have, frankly, is that we will be disbanding for the summer or
the interim soon and one of the concerns we have is that we don't
want this kind of an issue to just kind of melt away. We do hold
it quite seriously.
COMMISSIONER OTTE:
Mr. Chairman, I can assure you that this will not melt away as
long as I've got the issue in front of me. We are going to work it
through to an absolute answer for each and every member certainly
of the Legislature, and the other people that, frankly, that we've
audited. I intend to make sure that every member of the
Legislature has a satisfactory answer before we are done. In terms
of timing, the review by the Troopers I'm hopeful will not take a
great length of time but we have given the agencies statewide until
May 23rd to provide us with their documentation. I'm hopeful that
the vast majority of the 27 where we do not have any kind of a
satisfactory explanation will be taken care of and that we will not
have to assign too many of that number for State Trooper follow-up.
If that's the case, I'm hopeful by the end of May, or very early
June, to be able to provide each one of you, and each member of
this body, with an answer.
CO-CHAIR TAYLOR:
Commissioner, thank you very much. We'll turn it open now to
questions from the panel. Representative Croft, you were first,
then we'll turn to Representative Porter who started to put his
hand up, I think.
REPRESENTATIVE CROFT:
Mr. Chairman, I just wanted to get the numbers read. You said
that you looked not into the records but whether there had been
inquiries into 87 people?
COMMISSIONER OTTE:
Yes sir. Mr. Chairman, Representative Croft, yes that is
correct.
REPRESENTATIVE CROFT:
May I continue?
CO-CHAIR TAYLOR:
Sure, go right ahead, follow-up.
REPRESENTATIVE CROFT:
The 60 legislators, the Governor, and the 16 other candidates,
is that correct?
COMMISSIONER OTTE:
Whatever number gets us to 87, yes sir.
REPRESENTATIVE CROFT:
And how many of those had inquiries made then [indisc.].
COMMISSIONER OTTE:
Forty.
REPRESENTATIVE CROFT:
And then you looked at those inquiries the 40 people had, I
assume that some had more than one?
COMMISSIONER OTTE:
Yes sir.
REPRESENTATIVE CROFT:
So that came to a total of?
COMMISSIONER OTTE:
Eighty four.
REPRESENTATIVE CROFT:
And then after your preliminary investigation you found how
many to be verifiably unauthorized?
COMMISSIONER OTTE:
Initially, 20.
REPRESENTATIVE CROFT:
Because there was originally a concern that there was a
political motivation, can you tell me without naming any names how
many of those 20 inquiries were directed against Republicans, and
how many against Democrats?
COMMISSIONER OTTE:
Representative Croft, I can give you a snapshot of what I know
right now. I hope the committee appreciates that these numbers may
change as more information comes in. Of the unauthorized inquiries
to date, 11 of those inquiries are against either Republican
members of the Legislature or Republican candidates. I haven't
broken them out at this point. Nine of those inquiries have been
against either Democrat members of the Legislature, or candidates
or the Governor, who was included in that. Of the 27 pending
inquiries where we still have significant concern, there are eight
Republicans, ten Democrats, and I don't know how many actual number
of inquiries to each one but in either present members or members
of legislative races. For the small sampling of people that we
did, it is a very disturbing number of unauthorized inquiries, very
disturbing to me. But those are the numbers.
CO-CHAIR GREEN:
As a follow-up to that question, have you found -- have you
had enough time to determine whether there is any kind of a thread
of where the inquiries come from, either from the total or from
either party? Is this completely random or ...
COMMISSIONER OTTE:
Mr. Chairman I know that there has been concern because I've
certainly read the newspaper and I've had individual discussions
with members of both the House and the Senate and I know that there
is concern that some of these inquiries were politically motivated.
I certainly can't sit here and look you in the eye and tell you
that I know what was in the heart of the people that ran these
inquiries because I don't know. But if you're asking me, based on
my review of it, the Deputy Commissioner's, the Commander of our
Criminal Investigation Bureau, and the Director of the Troopers, as
we have discussed this, do we see some pattern that would somehow
put it into that arena? Not yet. There maybe something that comes
out of the interviews by the CIB unit that would change that.
There may be individuals where that's the case. I don't know.
But, in terms of a broad conspiracy, frankly there's nothing that
I've found that supports that at this point.
CO-CHAIR GREEN:
A follow-up to that then. Have you found whether the
inquiries of a particular person has gone to more than one of the
candidates or sitting legislators? In other words, has Johnson
asked several questions or are they pretty much one-on-one?
COMMISSIONER OTTE:
Mr. Chairman, I'm sorry. I didn't follow you on that question.
CO-CHAIR GREEN:
Well, the question has to do with if we haven't found a group
or any political affiliation. So far, have you been able to
determine that of these 27, that several of them come from one
party, or at least one organization, to several different
candidates or sitting legislators?
COMMISSIONER OTTE:
If I do understand the question correctly, and please Mr.
Chairman cut me off if I didn't, and I guess if one thing that
jumped out at you as you looked at this, and I certainly don't mean
to pick on the Commissioner, is that there is an explicitly large
number of Department of Corrections people within this mix. And
I've looked at that from a variety of different views to determine
why that is. Maybe when Godfrey's people get done they can give me
a better explanation but there's nothing that would suggest to me
that there is some conspiracy to provide this information to the
public. I guess that's what has frustrated me to this point is
that other than Senator Ward who made a very specific allegation
based on a concern that he had, and correctly so, there has been no
other information come forward where someone has shared with me
that information about them has been released to the public or to
another person, or used in anyway against them. So we're sort of
working backwards on this but I haven't had that input from any
member of the Legislature or outside of the Legislature at this
point, to suggest that.
If there was a conspiracy it was an incredibly poor one
because I find, as an example, within Corrections, four different
individuals accessing the record of Senator Ward and I would hope
that if there was a conspiracy the group would be smart enough to
access Senator Ward once rather than four times. So, we've
discussed this, believe me, from the police perspective as many
times as we can and it is speculation at this point. Mr. Chairman,
I answered that as best I can given the information I've got.
CO-CHAIR TAYLOR:
If I could - I have three people who are signed up: Senator
Parnell, Porter and then James. I had a couple questions along
that line that may set a better groundwork here. Has the
Department of Public Safety sent anyone to personally interview
violators to determine if unauthorized accesses were requested,
encouraged, or if confidential information was disclosed?
COMMISSIONER OTTE:
In 17 cases we have, yes Senator.
CO-CHAIR TAYLOR:
And I think you talked about a unit you called CID. What does
that mean?
COMMISSIONER OTTE:
Our Criminal Investigation Bureau in Anchorage.
CO-CHAIR TAYLOR:
Are they now going out and doing these interviews with these
people?
COMMISSIONER OTTE:
Yes sir.
CO-CHAIR TAYLOR:
And are these people that may have violated this provision, at
least regulation if nothing else, are they being placed under oath
to determine if these activities occurred and whether or not there
is some sanction?
COMMISSIONER OTTE:
Mr. Chairman, no. I don't believe that a police officer, from
my experience, has ever placed anybody under oath or even has the
ability to do that in conducting a criminal investigation.
CO-CHAIR TAYLOR:
Have you checked phone logs or phone records?
COMMISSIONER OTTE:
Mr. Chairman, the Alaska State Troopers have some of the most
talented investigators that I've ever been associated with and I
know that the Captain and the Colonel have sat down and tailored
each individual inquiry to what would be the most appropriate
course of action to take in terms of questions, documents, and
other information. But, in terms of do I know exactly what that
is, frankly, no, I haven't wanted to know at this point. If I did
I would probably be very reluctant to discuss it publically because
we're probably going to thwart them in their tracks if there is a
complete public disclosure of exactly what and how they're going to
go about their investigation.
CO-CHAIR TAYLOR:
The only reason, Commissioner, for those questions, is that we
had understood from previous discussions with you that there had
not been personal interviews done and actually the process had been
one of a paper audit. I think, in fact, the word "audit" was one
you had used. We have now been moved from that audit stage?
COMMISSIONER OTTE:
In all of my discussions with Senator Miller and
Representative Phillips we have shared with them that we would
start this process as we would any other audit inquiry. We require
the agencies to do their internal research and to provide us with
the documented information that would support that this was a
legitimate inquiry. If they could not do that, or if they got some
admission, we would evaluate that and take whatever action we felt
was appropriate from that point on.
I didn't elaborate a great deal with either Senator Miller or
Representative Phillips. Beyond that, I simply asked them to give
us an opportunity to work this as we would normally and that we
would provide them with a complete accounting once we were done.
Absent some probable cause showing that a crime has been committed
out there, and we have none of that in any of these cases, the
investigators are proceeding into these inquiries in a slightly
different manner than they would if somebody had committed a crime.
The more public discussion we have, frankly, the more difficult in
some of those cases it's going to be for the investigators to
conduct interviews and get the kinds of either admissions or
statements that might help support or, in some cases, sustain the
current finding or support a criminal charge.
CO-CHAIR TAYLOR:
I wanted to get to my other members here and I just -- that
preliminary background was very important and I appreciate that but
also I believe Del, you brought with you today some forms that are
used in the process of training and examining APSIN users?
COMMISSIONER OTTE:
No sir, I did not. I have received your letter and that will
be part of our package perhaps, but there also is some concern with
those forms being what was responded from the field. Disclosing
those at this time may, in fact, also create problems in what those
people originally said if they were to become public documents.
CO-CHAIR TAYLOR:
Well, I don't know that there is necessarily a need to have
their name reflected. I think we were just looking for the format
that was used for the original audit, the paper audit, where forms
were sent out and people were asked if they had done various
things. We wanted to see what that document actually said.
COMMISSIONER OTTE:
Mr. Chairman, if I could, certainly there is no intent to keep
that information from the committee but again I think what you want
is a complete answer to the ones that there's even the slightest
question about and having that information on those forms become
publically discussed and viewed is going to hamper the State
Trooper's ability to conduct those follow-up queries. We would
like to complete those investigations and interviews before those
documents are provided unless, Mr. Chairman, were you looking for
the blank ones or the ones that were completed?
CO-CHAIR TAYLOR:
I just wanted to see one of the blank ones really so that we
might be able to see what the question was that was asked. I
assume that the answers may very well be confidential or might lead
to disclosure of someone and that you would have a duty under law
to keep that confidential. I was looking for a blank form. I
realize it says now completed by employees and we would like to
have that also but, if you feel that would somehow compromise your
investigation at this point, just having a copy of the blank form
I think would be of information benefit to all of the committee
members. Let's turn to Senator Parnell.
SENATOR PARNELL:
Mr. Chairman, when did you first become aware that agency
officials may have accessed the criminal justice information system
in the broadest sense, the computerized records, on legislators or
candidates during your tenure as Commissioner?
COMMISSIONER OTTE:
Mr. Chairman, Senator Parnell, probably January of this year
when we expanded the initial request made by Senator Ward and did,
in fact, look at who might have accessed information about him
after the newspaper article.
SENATOR PARNELL:
So, prior to January you did not know of any other employee
who accessed, in an inappropriate fashion, computer records of
legislators or candidates?
COMMISSIONER OTTE:
Not that I recall, no sir.
SENATOR PARNELL:
In your tenure as Commissioner has anybody ever been
disciplined in your department for inappropriately accessing
computer records?
COMMISSIONER OTTE:
I can tell you that the State Troopers have just recently
completed a criminal investigation of a member of Public Safety who
is in a civilian staff position concerning unauthorized access to
computer information. That case has been submitted to the District
Attorney's Office. I'm not certain if there's been any final
determination on that case at this time. I know just from general
discussions with the Colonel that over the years there have been
incidents that have come to the attention of the Department where
other employees have made an inappropriate access and have been
disciplined, yes sir.
SENATOR PARNELL:
And then you said that -- I believe you said and correct me if
I'm wrong, that in January you talked with the Attorney General
about this problem that you've discussed. Was that your first
meeting that you had on the issue?
COMMISSIONER OTTE:
Mr. Chairman, Senator Parnell, yes it is.
SENATOR PARNELL:
And what were you directed to do or what did you do following
that meeting with respect to investigating the potential problem
here?
COMMISSIONER OTTE:
Contacted the Deputy Commissioner and asked him if he would
initiate an inquiry, an audit inquiry, to see if Senator Ward's
name had been accessed by anyone prior to a news article of
September 27, 1996. As I recall it was, I believe, the first
course of action.
SENATOR PARNELL:
And then what happened after that that lead to the audit form
being drafted by your Department?
COMMISSIONER OTTE:
The information that we initially examined showed no access.
SENATOR PARNELL:
Following that date that you'd put on it, you mean?
COMMISSIONER OTTE:
Right. The Deputy Commissioner and I both felt like it would
be appropriate to see if anyone had accessed information after the
article. We determined that they had. If your question is at what
point did we expand the form to include the follow-up questions ...
SENATOR PARNELL:
I'm just trying to get a sense for the chronology of your
investigation because you've basically been informed by the
Attorney General that there could be a problem here. You contacted
Deputy Commissioner Smith about it. At some point you put together
a form to audit an agency. I presume that's whatever agency you
found to have accessed -- you know, their employees to have
accessed records. I want to get to that place in the story where
you have turned the audit form over to a particular department.
How did you get from A to B?
CO-CHAIR TAYLOR:
If I may interrupt, Senator Parnell. It is difficult for
those of us -- I know you've had a longer involvement with this
situation than some of us have because you were also accessed, but
... [Tape 97-35, Side A ends midspeech]
TAPE 97-35, SIDE B
CO-CHAIR TAYLOR:
[Tape 97-35, Side B begins midspeech] ... date or a time on it
so that it -- I mean had a conversation or did something
approximately when -- when did this start, when did it -- that's
the chronology I think you're looking for. Without some kind of
time frame it's tough for us to tell what we're talking about.
SENATOR PARNELL:
He's indicated he's talked to the Attorney General in January
and at some point they drafted an audit form so I'm trying to get
you to give us a chronology of when did you first contact
Commissioner Pugh? What happened -- I mean tell us the scope.
What happened with the investigation down the trail -- what shape
it took.
COMMISSIONER OTTE:
Mr. Chairman, Senator Parnell, so that you know, I'm not the
one in Public Safety that conducts the audit and I requested that
the wheels be put in motion. In terms of how those were put in
motion and when and how did the forms go out, I'll certainly let
the Deputy Commissioner answer that because he spoke directly with
our security person in Anchorage.
CO-CHAIR TAYLOR:
Go ahead Del.
DEPUTY COMMISSIONER SMITH, DEPARTMENT OF PUBLIC SAFETY:
Thank you Mr. Chairman. Senator Parnell we did not create the
initial form. There is one form that is a standard inquiry from
the Control Terminal Officer, the APSIN control person, security
officer, to the agencies. We do those on a fairly regular basis.
Why did you run this person? Please provide an explanation. It
goes on to say if it is for an authorized purpose - fine - and you
can justify that and if it's an unauthorized purpose, you know, the
employee could be cutoff, the agency could be cutoff. That form
existed all along as part of the APSIN audit process. The
additional form that asks, I think, about seven specific questions
-- I can't remember the exact date, but there was some concern that
was the person -- anybody present in the room? Did they give it to
anybody else? Those specific questions should be asked. We sent
those back out to the agencies and wanted those asked, and signed,
for utilization downstream at any follow-up investigation, which
there will be.
SENATOR PARNELL:
So you turned the form over to the agency itself? You didn't
go sit down with the person and ask the questions on the audit
form?
DEPUTY COMMISSIONER SMITH:
Exactly. It's part of the audit process. Now that we have
these audits coming back in, and when they cannot justify, if they
cannot, on the 27 that the Commissioner was discussing and the 17
that have been sent out for criminal investigation, we will send a
Trooper in the 17, and perhaps some of the 27, to say I want to ask
you these questions again. You signed here and you answered yes or
no. Is that still your answer, yes or no, because you've not been
able to come up with any justification for what you did. So, that
was part of an audit process. As the Commissioner mentioned
earlier, we're backing into this sort of, because we do not have,
except for Senator Ward's initial allegation, any allegation that
a crime has been committed. We conducted the audits and now we're
working backwards to establish if a crime was committed. Our
initial conversation with the Commissioner regarding Senator Ward
occurred the last week or so of January and as I think he indicated
in his testimony we were speaking to the Speaker and the President
of the Senate about the 3rd or so of February. In between that I
was in touch with the CTO and conducted -- initiated those audits
and had her reporting to me. Thank you sir.
SENATOR PARNELL:
Two or three more questions and I'll turn it over quickly.
Senator Taylor asked a question which you said that you've asked
the Troopers to begin with field interviews on, I believe, the 20
unauthorized accesses. Is that correct or is it on the other
batch?
DEPUTY COMMISSIONER SMITH:
Some of the other batch, but some of the 20 and -- some of
both.
SENATOR PARNELL:
And when did you order that to be done or when did you start?
When did you issue the order to go out and do this in the field?
DEPUTY COMMISSIONER SMITH:
Through the Chair, Senator Parnell, the discussions with the
Colonel and the Captain occurred late last week and the documents
have been -- all of our material to provide them with the backup
they needed to start conducting investigations was sent up to them
early this week.
SENATOR PARNELL:
And to follow-up on a question after Representative Croft --
of the 20 unauthorized accesses, I believe those were not 20
individuals who were accessed, but they were unauthorized accesses
on a smaller pool of individuals. Is that correct?
DEPUTY COMMISSIONER SMITH:
That is correct, yes sir.
SENATOR PARNELL:
How big is that pool of individuals?
COMMISSIONER OTTE:
A total of nine individuals, Senator Parnell.
SENATOR PARNELL:
Of those nine, how many are Republicans and how many are
Democrats?
COMMISSIONER OTTE:
Six Republicans, three Democrats.
SENATOR PARNELL:
Thank you.
CO-CHAIR TAYLOR:
Go right ahead. Representative Porter...
REPRESENTATIVE PORTER:
Thank you Mr. Chairman. First, Mr. Chairman, let me say I
appreciate your putting on the record your confidence in the
integrity of the Commissioner. I share that position and I guess
I should put on the record that both the Commissioner and the
Deputy Commissioner and I worked together at the Anchorage Police
Department for over 20 years and, as a matter of fact, the person
sitting to the left, Diane Schenker, worked in my office. So, I
have a relationship, but I've known the other Commissioner for
quite awhile too, so I guess I have a personal involvement with all
of them. The thing I think that should be recognized in terms of
putting this inquiry in perspective is -- well, I won't go into
detail on the development of the privacy amendment and these
regulations but it's an interesting story, if anyone's interested
afterwards. The information that was inquired upon in all of these
cases was the criminal history background of individual members of
the Legislature, or candidates to the Legislature. That is
improper without some authorized reason because of the regulations
of the APSIN system. The information, the criminal history
information about us, is not private. It is available to anyone
who wishes to inquire at a courthouse. I think it should not go
unrecognized that we are sitting here today making this inquiry
because Commissioner Otte told us that improper inquiries had been
made. The system itself has got some really good points and one
that will present itself as a problem to these inquiries. The good
points, obviously, are that every inquiry is recorded and we will
be able to know every time an individual was accessed for whatever
reason. The problem in going back on a year -- two, three year old
inquiries is that oftentimes a particular terminal operator will
not remember why they got a response on a particular name. There's
also a situation where an individual, one of us, would not think
that an inquiry was made legitimately but it could have been. If
one of our names appeared on someone's Board list, that for
example, the Board wanted to apply for a gaming permit, our names
might have been submitted along with the other officials or board
members or whatever of this non-profit or whatever it was. We
wouldn't have known that our name was submitted but that name would
have been checked because that is a requirement of getting a gaming
permit. Oftentimes officers in the field are required to try to
find witnesses or suspects, as you might expect, and they don't
have complete information so they will make an inquiry into the
system on an individual name. Bill Smith - that's all this person
knows, but they do know that he's from Palmer and he's 19 years old
and he's Caucasian. So they run Bill Smith's and they find a 54
year old Bill Smith from Sitka. They don't know that that's a
legislator, but they know that it's not the one they're looking for
because they're looking for a 19 year old person. That could have
been the access that has come up and they're trying to now trace
down to figure out why was this accessed. I just -- total
perspective of what we can do and what we can't do and I thought
that was appropriate to put out.
CO-CHAIR TAYLOR:
Representative Porter thank you. I think you've raised some
other questions but I turned back when you made the comment -- I
turned back to some materials that we'd been -- I had here about
the question of whether or not this is public information. I mean
we've heard that statement made both in the press and around the
halls that well, this is public information. Anybody that goes to
the right courthouse can check it out. So I guess I need to
inquire of the Commissioner -- I'm informed, Commissioner, that
within APSIN, are details about suspects and witnesses in ongoing
police investigations. Unauthorized access could therefore
compromise ongoing police investigations and put Public Safety
officers' lives at risk. Details about a person's driving record -
- how many points a person has on his or her driving record --
prior interactions of a person with police: example whether
someone is prone to violence or displayed aggression -- juvenile
information, suspect priors, and concealed carry information and
whether someone has to get an SR 22 on their insurance policy.
None of that is public information and it is my understanding that
information or types -- information of that type is carried on
APSIN. Is that correct?
COMMISSIONER OTTE:
Mr. Chairman, all of that is correct.
CO-CHAIR TAYLOR:
That's certainly not public information, is it?
COMMISSIONER OTTE:
I never suggested it was ...
REPRESENTATIVE PORTER:
Mr. Chairman if I may -- I mentioned criminal history
information not all of this other stuff.
CO-CHAIR TAYLOR:
But you see criminal history investigation is not available at
a courthouse. If some police officer's been investigating a case
and checking somebody out, that's not available at any courthouse
but it is available in APSIN. I think that's why there is a
concern about the invasion of privacy. If we were just talking
about criminal records that somebody could go to a courthouse and
pick up -- of course, you'd have to go to every courthouse in the
State, wouldn't you? And you'd have to research an awful lot of
paper and that's why God invented computers. We can zip through
things now quicker. I just wanted to make that point. I think
there is a subtle difference. Is, in fact, there different levels
of access allowed to different employees? As an example, can some
people, say at the Department of Public Safety, who have been
working drivers' licenses, can they only get into driving records
stuff and then other folks that are doing criminal investigations
maybe could get into like a gun permit background information that
might even require you to go not only through APSIN but to use
APSIN as a window and to go into some of the federal computers,
like NCIC or some of those? Are there different levels like that?
COMMISSIONER OTTE:
Mr. Chairman,there are and you're sort of bordering on the
breaking point of my technical knowledge of APSIN but I do have
Diane Schenker who can speak very well to that, but essentially you
are correct, yes sir.
CO-CHAIR TAYLOR:
I don't want to suggest that Representative Porter is not also
correct about the details of a, say a, criminal conviction. If you
call that up, you get it on APSIN but you could also go to the
courthouse and get that one. I believe that's the point that
Representative Porter was trying to make. I wasn't trying to
demean that issue.
REPRESENTATIVE PORTER:
That was the original impetus for the inquiry was a criminal
history background.
CO-CHAIR TAYLOR:
Right. Did you have further comments?
COMMISSIONER OTTE:
No, Mr. Chairman, but if you'd like ...
CO-CHAIR TAYLOR:
Yes, Diane, go right ahead.
MS. DIANE SCHENKER, CRIMINAL JUSTICE PLANNER, DEPARTMENT OF PUBLIC
SAFETY: Mr. Chairman, yes, people are assigned different levels of
access in APSIN, depending on their job duties. They may be
restricted to just DMV records or -- and do not have any access to
criminal history records. Criminal investigation records would be
for police investigators, not for a clerical position that didn't
have any investigatory job duties.
CO-CHAIR TAYLOR:
As an example we heard that the Governor had also been
investigated, so to speak. Do you know at what level the person
had authorization on those because it was my understanding that
someone had done that for training purposes and that they were
doing it with a person that only had authorization to go to a
certain level, and to mix those two apples and oranges seemed a bit
strange.
COMMISSIONER OTTE:
Mr. Chairman, I think most of the people, although I don't
know any of them by name, but I believe most of the people were
generally classified employees within a variety of departments and
agencies, both local and state, and at least one federal and I
think they were all making basically the same kinds of inquiries,
whether it was the Governor or members of the Legislature or
political candidates that might be running for office. Certainly
there were one or two exceptions to that but for the most part it
was a fairly broad sweep. You did mention sort of case management
information and maybe I could ask Diane Schenker to expand a little
bit on that. It might be helpful for the committee to have an
understanding of that.
CO-CHAIR TAYLOR:
Go right ahead.
MS. SCHENKER:
You want to know about the -- the criminal case
investigations? Access to that part of APSIN or ...
COMMISSIONER OTTE:
State Trooper cases and reports, and that kind of stuff.
MS. SCHENKER:
Yes, access to that part of APSIN isn't as broad as access to
basic person and access to criminal history isn't as broad as basic
person and driving records but I believe most of the checks involve
criminal history records, not investigative -- not criminal
investigation records and there's much less access to that type of
record. When a person is cleared to have APSIN access they have to
fill out a security clearance form and that's where we do the
background checks on them, fingerprinting. They have to agree to
sign an agreement to abide by the APSIN rules. At that time, as
part of submitting that form, their supervisor or their person in
their agency that is responsible for APSIN security has to
recommend on a very specific list every single individual function
that they would need to have access to in APSIN based on their job
duties and that's in our files and that's how we, through automated
programs, control where they can go in APSIN.
CO-CHAIR TAYLOR:
In fact, Diane, don't they kind of start off at sort of a low
level as far as authority is concerned, depending on what they need
for their job and then they kind of move up through steps of
security clearance, so to speak, to get to different levels of
computer access. As an example, the federal system -- don't you
have to type in something when you access that system, either a
case number or something that indicates what your justification is
for entry into that federal system? I don't know how these
computers work so...
MS. SCHENKER:
There's a purpose code when you make inquiries into the
[indisc.- coughing] information system. It's a very broad code, a
criminal justice purpose would be an example of a purpose.
CO-CHAIR TAYLOR:
Curiousity wouldn't be?
MS. SCHENKER:
No. Criminal justice purpose as contrasted to say to firearm
checks, the broad categories but as far as the individual APSIN
user goes, they might be -- their application might be to authorize
them for what you described as a higher level of accessing,
including NCIC or more records, even early on if that's what their
job duties involve. They don't normally work their way up to
higher levels of access just because they've been using it for
awhile. They have to take the test and training in what they need
and get access to that, and it should only change normally if their
job duties change and they would have to submit a new clearance
form. Their agency would have to submit it explaining why they
need access to more or less than they did in their other position.
CO-CHAIR GREEN:
Given the fact that there is this progressive degree of
clearance and accessibility, do you know, of the ones that were
improper, how many of those were beyond that information that is
public knowledge and into this area that maybe certainly requires
an additional degree of screening and confidentiality? Any of you?
COMMISSIONER OTTE:
Mr. Chairman, what we're talking about here is criminal
history accesses, for the most part on all of the 87 people that
we're looking at -- when they were accessed. The employees who did
that, or persons who did that, had a clearance to go to criminal
histories. They were not exceeding their authority to do so
because they had a user ID which allowed access to that particular
portion of APSIN to deal with criminal history convictions, or
criminal histories pending a conviction if it's a fairly new
arrest. And I don't know that I've totally answered your question
but I believe I have sir.
CO-CHAIR GREEN:
Well, the concern I have is that we found that there are some
-- there's an access level that you can get information
conveniently that's open information. Now there's another level of
information that requires additional security clearance, as I
understand it, and how many of the ones we're talking about are
this higher level? Are they all that level?
COMMISSIONER OTTE:
Let me take at least a stab based on personal experience over
the years. A police dispatcher, as an example, would have access
to any and all information because she or he would be providing
that as support to officers in the field for investigators in
follow-up in criminal investigations. A police officer in the
field, on the other hand, probably would not have access to
certainly any NCIC information but would have access to the
criminal history information within the State of Alaska. It has
more to do with what your responsibilities are, not necessarily how
much you're paid or how long you've been there and I don't know
whether that gets you to what you're talking about or not.
CO-CHAIR GREEN:
Well, I hope it does because if my wife were to call in and
ask for some information can she go through an operator who has a
high degree of clearance and get information that's improper? Is
there a screen or a prevention mechanism that prevents the off-the-
street guy from coming in for whatever reason?
COMMISSIONER OTTE:
Well I -- Mr. Chairman, I think that's really at the heart of
what we're talking about here and if I understand your question,
all the security clearances, all of the signed agreements, all of
the change that Senator Taylor was talking to in terms of 12.62
law, the rewrite of the regulations, those are not going to prevent
an employee who decides to heck with the rules. All of these
employees are working for criminal justice agencies, they do have
a public trust, they have signed an agreement, they have taken a
test, they have passed a background examination, but there is still
the human element within all of that. Heretofore, Public Safety
has looked to the agencies out there to decide what should be done
and I guess to some degree that's still going to be the case except
that I'm prepared to let an agency deal the first time with their
employee although I intend to take some action myself. The second
time that employee violates their agreement with us, they're out of
our system -- period. I don't care what the agency does to them
but they're out of our system. So, Mr. Chairman, if that gets back
to your question ...
CO-CHAIR TAYLOR:
... apparently because of time constraints Commissioner Pugh
has other obligations and she has volunteered to stick around for
just a moment if we can interrupt you there, at that point there
Commissioner. Thank you very much and stay right by. Joe, you had
a question?
CO-CHAIR GREEN:
Yes. Margaret, we have heard in the prior testimony that the
majority of these 17 or 20 were actually in the Department of
Corrections rather than Safety. Were you made aware of who, from
your department, made the inquiries?
COMMISSIONER MARGARET PUGH, DEPARTMENT OF CORRECTIONS:
Mr. Chairman, yes. Senator - I've just promoted him to
Senator. Commissioner Otte did indeed share with me that there had
been breaches. I do not believe that he shared by name and I think
that I turned that over to someone within my department to work
with the Deputy Commissioner, as Commissioner Otte indicated that
he had turned his over to the Deputy Commissioner, so I don't
believe I got the names initially.
CO-CHAIR GREEN:
Did you by chance get the fact that maybe one or more of your
employees asked about more than one or several of -- and in fact
was that the case or were they independent one-on-one questions to
some particular legislator or candidate or did say, perhaps, did
some of your people ask about several candidates? Do you know
that?
COMMISSIONER PUGH:
I believe it's the latter, sir, that several of the folks
accessed more than one name.
CO-CHAIR GREEN:
Okay, thank you.
CO-CHAIR TAYLOR:
What steps, Commissioner, did you take to investigate when you
were alerted by Commissioner Otte, and if you could tell us
approximately when that was?
COMMISSIONER PUGH:
I'm sorry but I do not know when it was but having heard
Commissioner Otte's testimony I would imagine that it was fairly
immediately upon learning that there were personnel from the
Department of Corrections involved in his audit.
CO-CHAIR TAYLOR:
This would have been last fall or -- just ball park is all I'm
looking for.
COMMISSIONER PUGH:
Oh no, this would have been in January.
CO-CHAIR TAYLOR:
Oh, in January, okay, I just wanted to put a time frame on it.
Go right ahead. And what did you do to then investigate because
you were the one who -- the investigation of your corrections
personnel?
COMMISSIONER PUGH:
I asked the Department, the Division of Institutions Director
Frank Sauser and Deputy Director Allen Cooper, to cooperate fully
with Deputy Commissioner Del Smith in any and all investigations
and to keep me informed in taking appropriate actions and I believe
that that is what occurred. There was contact between the two
agencies. We cooperated fully throughout and as the names were
received the individuals were contacted and went through the audit
process, filling out the audit forms, returning those to the
Department of Public Safety. We have subsequently completed our
inquiries into each of the individual cases and have, in fact,
taken action in each one of those cases. We have also since,
verbally and in writing, [indisc.] to remind them of the
obligations to adhere to the security of the APSIN system
regulations. We have informed our training academy which is taking
place right this minute that they are to stress, more than may have
been done, so it is covered in every academy. We have asked them
to stress with this beginning academy and we stand ready to
cooperate with the Department of Public Safety in any manner
because although I do have to leave, I do appreciate the
opportunity to share with this committee that I concur with
Commissioner Otte's sentiment. I believe this is a very serious
matter and I, too, hope that there is nothing beyond that.
CO-CHAIR TAYLOR:
Commissioner, I want to thank you very much. I do have
concerns -- I know many other questions are coming up on the table
-- that we do have an opportunity to speak with you again about
this and I hope to do so before we leave Juneau but if that's not
possible then maybe during the interim. I think part of the
concern is what actions have been taken and as the Commissioner's
investigation continues on, if indeed additional action needs to be
taken, I think that one of the concerns that was raised to me by a
member -- I'm just going ahead rather than pulling on people, is
that without knowing the depth of investigation that we're now
into, without having that background or that information, were you
able to conclude at some point in time that no laws or regulations
had been violated because we were informed, I think, -- Senator
Ward was from a letter by Commissioner Otte, that no law had been
broken, or at least no criminal law was being investigated at that
point in time and I was surprised at that because it appeared as
though the investigation was far from over. I don't know that.
Maybe it was over, you see?
COMMISSIONER PUGH:
Senator Taylor, I understand -- if I understand your question,
let me just say that I believe that there was enough evidence that
the entries into the system were unauthorized to allow us to take
action under the personnel system collective bargaining unit
agreement. If, in fact, any Department employees are involved in
an ongoing criminal investigation I don't believe any action that
we've taken will interfere with that.
CO-CHAIR TAYLOR:
I guess that's what I was getting at. Maybe what we need to
do is maybe to talk to the people who actually "conducted the
investigation." Did they conduct an investigation utilizing this
form that Del was telling us about -- by sending a form to the
employees?
COMMISSIONER PUGH:
Yes they did, sir.
CO-CHAIR TAYLOR:
So they never went and personally interviewed them?
COMMISSIONER PUGH:
Pardon me?
CO-CHAIR TAYLOR:
Your people never went and personally interviewed your ...?
COMMISSIONER PUGH:
I'm sorry, sir. Thank you for clarifying that because no,
certainly the people were personally interviewed but forms were
completed as required by the Department of Public Safety and
certainly no personnel action would ever be taken without
interviewing the person in question.
CO-CHAIR TAYLOR:
Could you just tell us is that, how it happened? Did you send
the folks in to personally interview or did you send them the audit
form and then when the audit forms came back go personally
interview the ones that didn't maybe fill it out quite right?
COMMISSIONER PUGH:
I'm sorry. I wasn't the one conducting ...
CO-CHAIR TAYLOR:
... I realize that ...
COMMISSIONER PUGH:
... either the paper or the personal interviews. I would
guess that they were done simultaneously.
CO-CHAIR GREEN:
You indicated there has been corrective measures taken. Are
those corrective measures a broad brush or do you know the names of
the people and have taken corrective measures to those individuals?
COMMISSIONER PUGH:
At this point, sir, Mr. Chairman, I do know the names of the
individuals.
CO-CHAIR TAYLOR:
Senator Parnell, real quick, she's got to go.
SENATOR PARNELL:
By taking action I presume you mean some kind of disciplinary
measure?
COMMISSIONER PUGH:
Yes sir.
SENATOR PARNELL:
Have any of those individuals that you're aware of been
promoted or received salary increases in their positions in the
last month or so?
COMMISSIONER PUGH:
I was indeed made aware, Senator Parnell -- and I am going to
have to leave now but ...
SENATOR PARNELL:
I hope you can come back and talk to us about ...
COMMISSIONER PUGH:
I will come back and appreciate the opportunity to discuss
that with the committee.
CO-CHAIR TAYLOR:
The answer to his question was?
COMMISSIONER PUGH:
I am aware that one person has, in fact, been -- received a
promotion.
CO-CHAIR TAYLOR:
One of these people that we were talking about?
COMMISSIONER PUGH:
Yes sir.
CO-CHAIR TAYLOR:
Okay. I'm sorry. Commissioner I really appreciate your
sticking around for as long as you did and I want to thank you very
much for your candor and I appreciate your patience with this
committee.
COMMISSIONER PUGH:
[Indisc.] and Ms. Schenker knows more than us. I probably can
[indisc.] into any investigatory file. I don't think they do and
none of the audit findings were violations involving anything but
criminal history records.
CO-CHAIR TAYLOR:
[Indisc.] Joe you go ahead but we've got to get to
Representative ...
CO-CHAIR GREEN:
...but it's on that point that you said they don't, but what
they have by not having access themselves because of the nature of
their occupation would they be able to get a higher clearance
through Safety?
COMMISSIONER OTTE:
Mr. Chairman, I don't know that I'm the best person to answer
that but based on my discussions with the security technical people
involved in this, security clearances are based on your job duties
and if they don't have access now then I think it's because they're
not entitled to that access.
CO-CHAIR TAYLOR:
Next person up was Representative James, then Rokeberg and
Croft and Parnell.
REPRESENTATIVE JEANETTE JAMES:
Thank you, Mr. Chairman. Commissioner Otte, my concern on
this whole issue was more systemic than specific. I wasn't one of
the people who have been questioned. I might feel differently if
I had been. In your telling the way this thing happened, you
indicated that Senator Ward had [indisc. - coughing] into his
record prior to the newspaper article in September last year and
you indicated that that hadn't and then you indicated the other
actions that went on and you checked another time frame and then
you found something and then you decided to open up the whole
picture. My question is, if Senator Ward hadn't asked that
question, would we be doing what we're doing or is there any other
people who are knowledgeable about this that might have triggered
the same investigation? I'll tell you exactly why my question is
here is when I was hearing this talking about what's available in
these records and what people could find out and everyone is
extremely concerned about privacy, I'm sitting here kind of scared
not thinking there's anything on my record but there might be
something I don't even know about and so my concern is, is there a
possibility, that in the past, unbeknownst to you, that these
things have been doing and [indisc.] you should check it out.
COMMISSIONER OTTE:
Mr. Chairman, Representative James, the answer to your
question -- to the last part of your question is it certainly could
very well have happened in the past and there's no way that I, or
anybody else, would know about that. If Senator Ward had not made
his inquiry, would I have been thinking about expanding an audit on
legislative candidates? Well, I could sit here and tell you yes
but in all truthfulness probably no, I would not have thought to do
that. The Department is required to be more aggressive as part of
the new 12.62 statutes and regulations and to provide audit results
to a committee and that was, is, in the process of gearing up.
Hopefully somebody would have been astute enough to include a
sampling of legislators in that, people involved in high profile
races or positions and I would hope that that would have been a
part of the audit process so maybe it would have come to light.
Certainly it will be a part of any process in the future but I can
only speculate at this point.
CO-CHAIR TAYLOR:
Representative James, is that it?
REPRESENTATIVE JAMES:
That's it.
CO-CHAIR TAYLOR:
Thank you for your patience Representative, too. I appreciate
it. Representative Rokeberg was next.
REPRESENTATIVE ROKEBERG:
Thank you, Mr. Chairman. My first question will be directed
to Commissioner Otte. In your discussions with the investigators
of the CID unit, did you look at -- and this goes back to the
pattern or trend -- did you look at any geographic nexuses there
because something is very peculiar. It has come to my attention
that there was a candidate, not a sitting member of either body
here, who lives in the Southcentral area of the State and he was
hit on by the Juneau Police Department. That is a very peculiar
and strange situation. Have you taken that into account?
COMMISSIONER OTTE:
Mr. Chairman, Representative Rokeberg, you are correct. That
is a very unusual situation. There's not an acceptable answer.
That is one of those cases that we've assigned to the State
Troopers to do some follow-up on. That's an immediate flag to us.
You are correct, yes sir.
REPRESENTATIVE ROKEBERG:
Chairman, if I might? Perhaps Deputy Commissioner Smith could
be better able to answer this. I'm concerned about understanding
the chronology of this whole situation, particularly following up
on what Senator Parnell brought forward and is there anything in
this voluminous amount of documentation that sets forward the exact
chronology of -- apparently starting from the February point to the
May 23rd date, there's approximately 109, 110 days there and I'm -
- apparently when the inquiry forms went out, was that the early
part of February?
DEPUTY COMMISSIONER SMITH:
Through the Chair, Representative Rokeberg, we started sending
them out and then we kept adding people to the audit. Initially we
checked Senator Ward and then we expanded it beyond that and each
time, several days perhaps had gone by, we directed the CTO, the
Control Terminal Officer in Anchorage, who through me that I want
these run. I'm probably not a very popular person over there
currently but I keep saying no we want to expand it and so they've
been going out incrementally. The departments then had generally
30 days to respond to the Control Terminal Officer. They came back
in. We looked at some of the responses and said these are not
acceptable -- they've got to go back out again. So that's been an
ongoing process since early February. Yes sir.
REPRESENTATIVE ROKEBERG:
So the agency investigations were triggered by those forms
concurrent with those that would vary, depending on when you sent
out those forms?
DEPUTY COMMISSIONER SMITH:
Yes sir.
REPRESENTATIVE ROKEBERG:
The agencies were given approximately 30 days to respond?
DEPUTY COMMISSIONER SMITH:
I believe the form says the standard 30 days to get back to
us, to the CTO, and explain what the situation was.
REPRESENTATIVE ROKEBERG:
Okay, when did you come up with the short list, or around the
20 I believe it is, or the 17?
DEPUTY COMMISSIONER SMITH:
There are 17 that are currently assigned to the State
Troopers. It's been within the past couple of weeks that we looked
at some of these where they said curiousity would have been the
reason. We're not satisfied that that's totally candid.
REPRESENTATIVE ROKEBERG:
Is that about the time that they issued a letter to the
President and the Speaker and provided the hit list? I think it's
dated April 21st. Is that correct? Is that around about that
time?
DEPUTY COMMISSIONER SMITH:
I don't recall directly. I mean, we were assigning some
cases. There were some that were suspicious to us as you referred
to the Juneau person checking on the Southeast. There were some
other patterns that sort of looked odd to me and we've targeted
those for investigation.
REPRESENTATIVE ROKEBERG:
When did the CID start formally investigating potential
criminal charges?
DEPUTY COMMISSIONER SMITH:
Those had been sent up, as I said earlier, the packages to
them earlier this week to start -- these are the ones we want you
to go on.
REPRESENTATIVE ROKEBERG:
So it's taken all this time to recognize that there may be
potential criminal activity going on?
DEPUTY COMMISSIONER SMITH:
I think what's taken all the time, Representative Rokeberg, we
have two people in Anchorage, a control terminal officer and her
security officer who have been spending an inordinate amount of
time trying to deal with this while dealing with the other
responsibilities that they have: getting this back, collating the
information, reporting back to me. We're trying to sort out and
get these back out to the field and respond to requests so I
apologize for the length of time it's taken but there's been no
dilly-dallying on our part in trying to respond to these and trying
to resolve them.
REPRESENTATIVE ROKEBERG:
Perhaps, Commissioner, a final question, the May 23rd date,
where did that date come from? Is that an agreement between the
legislative leadership and yourself or is it a date that you
selected as a target deadline.
COMMISSIONER OTTE:
Mr. Chairman, Representative Rokeberg, the Deputy Commissioner
did contact all of the agencies where we had responses that simply
did not provide us with the documentation for us to say yes, this
inquiry was fine or no it's not. Many of them said, you know, what
you're asking is so voluminous and time consuming that it really is
a difficult process for us. Anchorage had the bulk of these. I
think the Deputy Commissioner, in consultation with some of those
individuals, and with the staff in Anchorage, gave them till May
23rd to get that information back to us.
CO-CHAIR TAYLOR:
So this is self imposed?
DEPUTY COMMISSIONER SMITH:
Yes sir.
REPRESENTATIVE ROKEBERG:
By the CID as I take it or ...?
DEPUTY COMMISSIONER SMITH:
I established that date as the Commissioner indicated. I did
speak to the Chief, as he pointed out. I said I need this
information. They said it's time consuming, we're doing other
things. I said I need the information, I will give you until the
23rd. I followed it up with a letter that says the 23rd. I
arbitrarily and to some degree, capriciously, picked that date,
trying to be reasonable with the people that we're dealing with but
also putting a time certain on it.
CO-CHAIR TAYLOR:
Del, worse case scenario because I realize these time frames
are arbitrary -- it's a good target and I hope you can have it
resolved by then. I don't think anybody would criticize you for
doing that -- worse case scenario: if in fact there is any basis,
and let me preface this -- during the last campaign we saw ads
running in the campaign, the most famous one I remember is the gang
that couldn't shoot straight ad, which indicated a whole series of
candidates and all that was really listed was criminal backgrounds
under them. I've never seen that before in the 20, 30 some years
I've followed politics in Alaska. I was immediately suspicious
when I saw that. How in the world could somebody go around the
State and check enough courtrooms, checking back 12,13, 20 years
and come up with all of this? That would take a tremendous amount
of leg work, unless you used a computer. That doesn't take hardly
any time at all. So, if worse-case scenario does come out, that
you find that there was a significant involvement between certain
labor unions, private investigators which we know -- we were told
publically by one of the labor unions they'd hired one to check out
our backgrounds. If, in fact, you do find that that was ongoing,
that people were sharing some information, now we're talking
serious offenses, aren't we?
COMMISSIONER OTTE:
Yes sir we are.
CO-CHAIR TAYLOR:
And but for the status of the investigation at this point, we
still don't know, do we, whether or not we're really looking at
something that ominous or whether we're just looking at some banal
curiousity on the part of some employee?
COMMISSIONER OTTE:
Mr. Chairman, as I've said a couple of times, there is no
allegation that has been brought to us. One of the things that we,
as you know, asked each member of this body to do when they got a
letter from us, is to respond to us if there is anything about an
inquiry to them, or any information they have that would be of
concern or something that should be shared with us, and we have
heard back from some members of this body and we are following up
on specific requests. But, there is no probable cause showing that
a crime is committed or an allegation that anybody has committed
one. We are as aggressive as I can direct the Troopers to be in
following up on questionable access but I have no information yet
that a crime was committed.
CO-CHAIR TAYLOR:
I guess what I was inquiring about is, as you're looking at
this issue from the perspective of security to the system and who
may have used, or misused, the system, are you not also looking
what maybe the parallel involvement of other forces out there? I
mean otherwise how are you ever going to find it if all we're going
to talk to are the people at the computers, and then accept their
statement that oh no, they never shared it with anybody. I mean
...
COMMISSIONER OTTE:
Mr. Chairman...
CO-CHAIR TAYLOR:
... as an example, if I knew that my -- if I knew the names,
as an example, of three or four people who maybe doing some
activity in my community, I might know who they're related to. I
might know... [Tape 97-36, Side B ends midspeech]
TAPE 97-36, SIDE A
CO-CHAIR TAYLOR:
[Tape 97-37, Side A begins midspeech] ...find out that these
people are all part of the same union? Some of them may be closer
or not closer to political activity within the union or political
activity on their own. I don't know necessarily that your criminal
investigation folks would know that. And if they are only going to
focus on the narrow perspective of whether or not these people
entered into these computers, I don't know that we will ever have
the other question answered, and I think that question is the only
serious concern that I think you and I have. It's serious enough
if somebody messes with the computer when they are not supposed to,
but if they do it just for curiosity, don't share it with it
anybody, maybe it's not that big of an offense. But, if instead,
they call somebody up and two days later a major newspaper smear
campaign ad starts in the middle of an election, or two days later
somebody sitting in this Legislature on a crucial vote gets a phone
call that says "You either vote the right way or else we are going
to reveal the following" those phone logs would, I think, be real
important, and I would think the associations of those people who
have violated would be very important to know about or we never
know for sure, do we, that this stuff was communicated.
COMMISSIONER OTTE:
Mr. Chairman, I certainly share your concern and frustration
with what could be a variety of possibilities out there. If I
didn't have some of those same thoughts and concerns, we probably
would not have initiated this audit in the first place...
CO-CHAIR TAYLOR:
I know you do, and I appreciate that.
COMMISSIONER OTTE:
You know, all I can tell you is that the Alaska State Troopers
are an outstanding investigative organization. They've
investigated issues and crimes certainly more complex and difficult
than these kinds of issues, so I have all the confidence in the
world that they will do a thorough and complete review for us. I
don't know how many of you have ever met Dennis Casanovas, but he
is the most tenacious CIB commander I've ever seen. He will not
let go of this until he provides us with the answers to these
questions. I guess what I would ask again is the same thing that
I asked of Representative Phillips and Senator Miller initially is
please give the troopers an opportunity for us to work through
this. I realize it is taking more time than you or I would like;
there's nothing I would have liked more than to have a complete
package answer for you before you left here. I was not able to do
that, but I can assure you that you will get a full accounting of
whatever we determine.
CO-CHAIR TAYLOR:
I want to give you that opportunity, too, Commissioner,
because I'm looking forward to that. I'm hoping that we're going
to find out and you're going to be able to put this thing to bed
for all of us, and that's why it's not our intention to adjourn
this committee. We're only going to recess, where that's going to
give you an opportunity to come back and present that so that we
all have an opportunity in the same spotlight and specter to clear
this issue one way or another.
CO-CHAIR TAYLOR:
Representative Porter, you had a comment?
REPRESENTATIVE PORTER:
The only that I would add to that, Mr. Chairman, is that each
member of the Legislature who was subject of one of these inquiries
has been notified of the basic where and when and those kinds of
facts. If any member of the Legislature who has been inquired upon
has any of the suspicions that you are offering, they most
definitely should tell the commissioner what they are so that that
information can be added to the investigation as to any
significance in the where or the time that that inquiry was made.
If they were the subject of some kind of a phone call or smear
campaign and there was a relationship in that time, most certainly
the commissioner should know that.
CO-CHAIR TAYLOR:
I didn't want to target anybody so I made reference only to
that one rather generic ad. It specifically named several
different people, and I can't imagine not looking at this situation
and not also looking into the background of that ad -- who placed
it, where it came from, who paid for it, etc. -- to find out if
there is any inner connection between those people and the people
doing the access violation.
I guess my concern also is that there is a vague area here
between what may be a personnel code violation or a regulation
violation for which people get sanctioned. And then we have,
because of another unfortunate circumstance very similar to this,
a person was terminated, just a few years ago, from their
employment, which is a very severe sanction. And it's hard for
those of us not knowing what went on to gauge why are some people
being suspended and other people back then were terminated, so
that's confusing. And how can there be a statement that no laws
were violated when the investigation hasn't been completed, so I
guess that one is still holding in abeyance a bit. But Alaska
Statute 56.850, official misconduct, doesn't even require that
there be communication of this information, to injure or deprive
another person of benefit. Well, I think the right of privacy is
one of the most precious benefits that any Alaskan has, so it would
seem to us that there may be some criminal activity, and if, in
fact, there is, I think we need to have clarification on that.
I think also the committee is very concerned about
differentiations in sanctions that were imposed. We see one person
in your print sheet gets a letter of reprimand, 90 days suspension,
and another person gets 30 days. Yeah, and one person gets a
promotion. So it's difficult to understand that, and I hope that
will be part of the report.
Senator Pearce is not here; she wanted me to ask one specific
question. In the report that you made, you indicated that a common
punishment was that these people would be suspended from using
their APSIN privileges. In other words, they couldn't access the
computer that they had mis-accessed, I guess, for a period of 30
days or up to 90 days. And her question was if it is part of these
peoples' jobs, how did they work. I mean, were they punished by
being told "Come to work and we'll pay you your full pay check, but
you can't work today because of your restriction on the computer?"
Could you, or maybe Diane could explain how that works.
COMMISSIONER OTTE:
Mr. Chairman, let me take a shot at that, and I'm not going to
be able to give you a complete answer because I don't know what the
Department of Corrections, or Seward, or Juneau, or any of these
other employers did in terms of their own particular discipline.
I can relate to you an experience I had as the chief in Palmer
where I determined that an employee who worked for me had made an
improper inquiry, and it had to do with a personal relationship.
I brought that information to the state, did my own review, and I
suspended -- and it was a fairly egregious number of inquiries --
and I suspended that individual for a significant period of time.
The state told me that they were also going to suspend that
individual's access to the APSIN system for an additional 30 days,
and I simply tacked that on to my suspension, because without
access that employee was of no benefit to me.
CO-CHAIR TAYLOR:
But you suspended without pay?
COMMISSIONER OTTE:
Correct.
CO-CHAIR TAYLOR:
Can you tell us, Diane, what you did with the corrections
personnel, because we've been informed, as an example, we're aware,
-- at least one of our members is -- of one probation officer who
inappropriately inquired on APSIN and that probation officer was
prevented from using her APSIN computer, or his, whatever it was,
for the next 30 or 60 days. So that employee goes to work and he
just turns all of his files over to his supervisor and says "I
can't run the computer, you're going to have to do it." I mean,
that kind of punishment is hard for us to understand. Were these
people punished with being suspended without pay, or did we just
take away their work for the day?
COMMISSIONER OTTE:
Mr. Chairman, if I could. Diane -- we stole her from
corrections and she works for Public Safety now, so I doubt that
she has a clue. In response to your query, I can't make any sense
of that for you because I don't know all the answers. You are
correct. For some employees simply suspending their APSIN access
is a fairly meaningless penalty on the part of the agency. In
other cases, if I were to do that, which I intend to do from this
point on -- I'm not going to give an agency the option --if I find
that somebody has done something that is short of a crime but a
violation of their agreement with us, I am going to suspend them
the first time and terminate them completely from our system the
second time. I understand that in some cases that's also
meaningless, but for many people and most people who need access as
part of their job, it is going to result in probably their
suspension without pay for that period of time, or, if it happens
again, I doubt they are going to be employed.
CO-CHAIR TAYLOR:
Well, obviously you're not the right people to be asking this
question. I'm sorry about that. It was just something that seemed
rather anomalous to us and we tried to figure out how that worked.
I guess the further concern is if, in fact, these people truly did
what they are being sanctioned for, it appears as though that is a
violation of a criminal statute. They did deprive every person
that they went after of that benefit of privacy, and I'm not sure
how we get around those.
COMMISSIONER OTTE:
Mr. Chairman, I'm not an attorney and I have to rely on the
Department of Law's experience and historical perspective from
these kinds of violations. If it is or was determined to be a
crime, it certainly would be forwarded to the district attorney.
Dean Guaneli is here, and I think that he's probably had this
discussion many times with many different commissioners about this
very topic.
DEAN GUANELI, CHIEF ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF LAW:
Well, Mr. Chairman, I'm not prepared to discuss the facts of
any particular case, but let me just say with respect to that
particular statute, the official misconduct statute that you
mentioned, to violate that statute requires specific intent to
deprive someone of a benefit. I think...
CO-CHAIR TAYLOR:
But wouldn't that occur if you called up my name or yours on
the computer and you intended to do so?
MR. GUANELI:
Well, I think that -- I'm not certain if the definition of
"benefit" includes the right to privacy under the constitution, but
even if it did, there is a more specific criminal statute that
covers misuse of confidential information. And when there are two
statutes, one that covers conduct fairly generally, and another
that covers it much more specifically, the courts will look to the
one that addresses it more specifically. And with respect to the
misuse of confidential information statute, it r equires that the
information be used in some way. That's the point, I think, of
some of these further follow-up inquiries by the troopers: to
determine whether information was disseminated outside of the
agency, to determine whether the person actually made some use of
it other than simply browsing through the system, other than simply
to satisfy that person's own curiosity. And I think that's really
the focus of the further inquiries at this point and if we're
focusing on any particular statute, if we're focusing on the
specific one that covers the conduct.
CO-CHAIR TAYLOR:
I realize that. We're running very short of time. Senator
Parnell had a question and Co-Chairman Green had a comment.
CO-CHAIR GREEN:
It's on this issue and it's brief. If the intent was, as the
senator mentioned, to have a political ad that talks about,
certainly indicates the quality of the person, wouldn't that
satisfy this intent portion that you're talking about? And the
follow-up to that is anytime you're for just random knowledge
wanting to talk about a specific legislator, doesn't that put it in
a different frame than just saying I'm going to talk to the
legislator or write him a letter? I mean, I'm going to access
APSIN to find out about this guy just from general curiosity. Do
you think the court would go with that saying "Oh yeah, no intent
there."
MR. GUANELI:
Mr. Chairman, let me just say that if there's an indication
that political use was made of some of this information, I would
think that that would be enough to satisfy certainly the misuse of
the confidential information statute. But as Commissioner Otte has
said, there's really no indication yet that that's so. We really
don't have any factual basis to believe that that's true. And I
really think when we start seeking State Trooper investigation into
a political ad, where we might be asking the State Troopers to go
to a political party or go to someone who paid for a political ad
and start inquiring into their motivation and that sort of thing,
I think that it becomes a very delicate situation, and I think we
need to approach that carefully and with some good factual basis
for doing that. And so I think the troopers have to tread
cautiously when we start getting into that kind of arena.
But let me just say that the federal officials have had a lot
of trouble prosecuting, criminally, people who have accessed
federal computer systems simply for curiosity. There was recently
a case that was decided by a federal court of appeals just a couple
of months ago where an IRS agent actually accessed IRS records of
people that he knew and people he was dealing with. It was
prosecuted under federal statutes and the court of appeals threw
that out basically saying, you know, "Lets not make this a federal
offense. This person didn't use the information, simply accessed
it for his own curiosity." So, I mean it's not an easy situation
that we're dealing with and that's why the troopers are following
up on these questionable cases.
CO-CHAIR GREEN:
My question wasn't accusatory. It was just informational.
MR. GUANELI:
Certainly.
CO-CHAIR TAYLOR:
I find your comments fascinating, Dean, when what we're
looking for here is confidential information used for personal gain
or in a manner not connected with the performance of official
duties. I don't think you can call up on that computer, violate
the official duties that give you the authority to call up on the
computer and then request the information and not be in violation
of this law. Now, I realize that to make a better case you want to
find some use of it, but if you're going to walk timidly in asking
people about campaign ads that specifically state criminal
background in them, and we're looking at violations of criminal
background inquiry, I hope the same attitude isn't taken when it
comes to rape or something else, because we shouldn't be in a
position here of having to write a letter to tell somebody what to
go investigate. This should just be done automatically when you
see the parallels that have been drawn here. And I think that's
occurring now. I think we're now at a point where significant
resources are being applied, and I think it is a serious matter,
but certainly you're not suggesting that Ron in any way should
modify the investigation that his people are doing solely because
there may have been a political ad run, are you?
MR. GUANELI:
I'm suggesting that it's an area into which we have to tread
carefully. Unless there is some reasonable basis for proceeding
down that road, I think that inquiring into political activities
has some risks, and I don't think that we can simply go there based
on speculation or on rumor. I think there has to be some logical
connection in order for that leak to be made. But let me also
point out that with respect to that statute, it does require a use
of that information. There is no definition for what the use is in
statute, and so the courts will look to a dictionary definition,
and it's really to utilize something, to put it to some purpose,
and that's the problem with that statute as applied to mere
curiosity searches. As a prosecutor proving something beyond a
reasonable doubt, you have to meet all those elements, and we face
practical problems under that.
CO-CHAIR TAYLOR:
Senator Parnell.
SENATOR PARNELL:
Early on you said that there were 20 cases -- I think you said
that there was no question that these were unauthorized accesses --
20 unauthorized accesses involving 11 legislators; nine Republicans
and three Democrats were accessed. Were any of the three Democrats
who were accessed in this unauthorized fashion members of last
year's or this year's Republican-led majority?
COMMISSIONER OTTE:
Mr. Chairman, Senator Parnell. I don't know that I have the
answer to that at this time, and the total of nine includes people
both in and outside of the Legislature at this point. In terms of
the exact names...
SENATOR PARNELL:
I'm not asking for names. I just want to know if any of the
three Democrats who were accessed are in or were in a Republican-
led majority.
COMMISSIONER OTTE:
I don't have that information at this time, Senator.
SENATOR PARNELL:
Don't know or you just...
COMMISSIONER OTTE:
I don't know.
SENATOR PARNELL:
Okay, thank you.
CO-CHAIR TAYLOR:
Mr. Croft, you've been very patient. Thank you.
REPRESENTATIVE CROFT:
Mr. Chairman, well, I'm not a police officer, but I was
concerned about all of the other types of information that might be
accessed through the system. But then in looking at the APSIN
security audit, all of them are "CH" or "WW", and the vast majority
are "CH". That's criminal history?
COMMISSIONER OTTE:
Yes.
REPRESENTATIVE CROFT:
And that's public information?
COMMISSIONER OTTE:
It's not public information in our system. We consider that
a confidential source. Criminal history information, arrest
information about Ron Otte, is going to be available if I've been
arrested at some courthouse some place. So to that degree, I can't
hide my criminal past, but if you're asking so if it's public can
I go to APSIN and get it, that answer is unequivocally no.
REPRESENTATIVE CROFT:
Can I go to some place else and get it?
COMMISSIONER OTTE:
Possibly.
REPRESENTATIVE CROFT:
What does "WW" mean?
COMMISSIONER OTTE:
Warrant check.
REPRESENTATIVE CROFT:
That's where there is a warrant out for that person?
COMMISSIONER OTTE:
Correct.
REPRESENTATIVE CROFT:
Is that publicly available?
COMMISSIONER OTTE:
I believe you could obtain that information at a courthouse,
yes sir.
CO-CHAIR TAYLOR:
Let me just follow up on Mr. Croft's question. I think it's
a very important one. The difficulty though, and I think the two
of you may have been saying different things. Representative Croft
was saying isn't this public and you were kind of saying some of
it's public, and it's a way to get to the public information, yes.
In fact, if you're driving down the street, Commissioner, and a
State Trooper comes up behind you, seizes your car and wants to
pull you over, and you're driving your own personal car, and he
calls in on dispatch and says give me wants and warrants and
criminal history information on the registered owner of this car.
They type in the number of your license plate, that brings in your
registration, they type in the name, and that's who should be
driving this car. Part of the information that officer is going to
get is whether or not you've had any prior contact with the police,
and whether you have been prone to violence or displays of
aggression. That's APSIN, isn't it?
COMMISSIONER OTTE:
Yes sir.
CO-CHAIR TAYLOR:
You don't get that at any courthouse. That doesn't come from
7-Eleven. So I think there's a tremendous amount of information
within that system that may be very, very confidential stuff that
only should be seen maybe by other police officers, stuff that
maybe should only -- I mean, I guess my concern is I just have to
wonder what would happen, and I believe we have instances -- the
last time someone got terminated for this they called up APSIN to
find out what was happening with a relationship that they had
ongoing, and used if for their own purposes to find out apparently
where the person lived, who they were associated with. A lot of
personal, private information is contained in there that certainly
isn't at any court-house. And it's that concern that I think that
worries us as to what use it may have been put, to what use it may
be put in the future, to what use might other citizens out there
find themselves in the same dilemma. I know you share those
concerns with me because we've discussed them, Commissioner, and
that's why I'm so very pleased to hear you have CID actively
involved in this because I think we all have a lot of faith in that
department.
REPRESENTATIVE BERKOWITZ:
The information that's publicly available through the court-
house would include criminal history, in which case you could go
into the case file and even if you chose to, you could listen to
the transcripts of any of the proceedings?
COMMISSIONER OTTE:
Although I've never done that, that is my understanding.
REPRESENTATIVE BERKOWITZ:
And in that way you could -- if someone had been through a
divorce, you could learn what their assets were, you could find out
if an inquiry had been made in a trial or in other proceedings --
you could find out intimate details that way as well.
CO-CHAIR TAYLOR:
I don't think divorce was a good example, Representative. I
believe that's a closed probate file. I don't think you have
public access to either probate or divorce files or juveniles.
REPRESENTATIVE BERKOWITZ:
Well I believe the juvenile situation has changed somewhat.
CO-CHAIR GREEN:
You have records of only instate activity, or do you actually
have information for other states for somebody who has moved in?
COMMISSIONER OTTE:
Well, Mr. Chairman, APSIN compiles information submitted by
Alaskan law enforcement about Alaska residents or visitors, or
whoever might be within the state. Some terminal operators such as
police dispatchers do have authorization, once into APSIN, to
query the FBI's NCIC system.
SENATOR PARNELL:
Our U.S. Supreme Court makes a clear difference between
records that you can get from a courthouse and records that are
contained in a computerized data base, and I think Senator Taylor
has expressed that. There's a case, United States v. Reporters'
Committee for Freedom of the Press, in which the court said that
while you can get this from other places, plainly there's a vast
difference between the public records that might be found after a
diligent search of courthouse files, county archives and local
police stations throughout the country in a computerized summary
located in a single clearing house of information. I mean, there
are definite privacy interests here regardless of whether that
information is available from 40 other sources, and I don't want us
to minimize the privacy interests that we're discussing.
CO-CHAIR TAYLOR:
Representative James.
REPRESENTATIVE JAMES:
Senator Parnell just said exactly what I was going to say.
CO-CHAIR TAYLOR:
We have run very, very long this afternoon. I really thank
each of you for your tremendous patience and your candid and honest
responses to the questions. I think it's a great comfort to all of
us to hear the sincere concern you have, and we appreciate your
efforts very much, Commissioner, Deputy Commissioner, and Diane,
it's very nice to have you here too, and Dean Guaneli. We're not
intending to adjourn the committee, we will recess. If you will
notify the two co-chairs, either one of us, it doesn't matter --
we're kind of a one-stop shop here -- as to when you would like to
have the next meeting so that we can... I'm assuming it's going to
be during the interim when things are going to be a little busy
around here. When you feel like you're ready to report back and
you feel like you've concluded your investigation, I believe we
would like to have the opportunity and give you the opportunity to
provide that information to the committee.
COMMISSIONER OTTE:
Mr. Chairman, I would be happy to do that. I will try to get
you a written response to the requests that were submitted through
both the House and Senate leadership and some of your specific
questions to you, hopefully by the close of business tomorrow. I
will notify both you and Representative Green when we are concluded
with the investigation so that we can provide that information to
you.
CO-CHAIR TAYLOR:
Thank you very much. We're there any other questions or
concerns by committee members? Representative Porter.
REPRESENTATIVE PORTER:
The only caveat to that that I would place is that I believe
each individual member of the Legislature has been advised that
they are now dealing with a one-on-one with the department, and to
the extent that an individual legislator would like to leave it
that way, that information will not be provided to the entire
committee.
COMMISSIONER OTTE:
I've been asked specifically by both Senator Miller and
Representative Phillips to certainly keep all of the names of
individuals in both the House and Senate confidential. I guess
when I said provide you with information, I'm talking about summary
information.
CO-CHAIR TAYLOR:
You've kept that information confidential to this point, and
I think we all appreciate that. There are indications on the
record that people might be able to determine who an individual was
by geographic location and party designation, but, no, I would
assume that you are going to continue in that fashion. However,
if, in fact, the committee believes that they need to inquire
further, then I think it would be up to the committee to make the
decision about whether to go into an executive session for that
purpose, and the laws do provide that opportunity also.
DEPUTY COMMISSIONER SMITH:
One question, Senator. You asked about the forms, and then I
noticed that there were a couple of them passing around here, the
blank forms that you asked about earlier. So I assume that request
is ...
CO-CHAIR TAYLOR:
Well, that form modified from the time that you first created
it. That was a question that ...
DEPUTY COMMISSIONER SMITH:
The audit form itself, not the one with the seven questions,
the audit form itself was the basic form that was used by APSIN
security personnel all along. I don't know that its been modified.
It may be modified recently in light of what has happened and a
change in the verbs, and not something may happen to you, it will.
That kind of thing. The other forms that's created on the fly, as
it were, asks those specific questions.
CO-CHAIR TAYLOR:
In conclusion, do you think there's ever a way we're going to
be able to truly secure a system like this other than through the
integrity of the individuals that we hire?
COMMISSIONER OTTE:
Mr. Chairman, you know, part of the problem from my perception
is sort of a general complacency that has existed in terms of both
within Public Safety in aggressively communicating to user agencies
and also the agencies themselves about requiring periodic review
with their personnel of what the protocols and limitations are to
this system. It was painfully clear that there is some complacency
wrapped within all of this that certainly we intend to correct. I
don't know that there'll ever be a full proof system. I suspect
that there's always going to be the human factor there, but I think
we can do some additional things to minimize -- to encourage the
human factor to stay on course.
CO-CHAIR GREEN:
One more brief one. On this APSIN request form where you're
asking a person to self-incriminate, is there any hammer following
that up? Is there anything that somebody who says "Hey, I forgot,"
is there any teeth in that?
COMMISSIONER OTTE:
Mr. Chairman, what we're looking for in the audit is simply
justification for the inquiry. Absent that, we conclude that we
have a problem. If somebody tells me I'm sorry, either I don't
think I want to answer your questions, or they try to convince me
that they've just somehow forgot, I'll turn them on, not a problem.
CO-CHAIR TAYLOR:
If there's nothing further, I want to thank you all again. I
really appreciate your time. We are recessed.
[THE MEETING RECESSED AT 3:39 P.M.]
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