CS FOR SENATE BILL NO. 108(JUD) "An Act relating to the confidentiality of certain records of criminal cases; and providing for an effective date." 9:36:29 AM Co-Chair Stoltze noted that the CS was introduced at the request of the administration. SENATOR FRED DYSON took issue with the CS. He stated that the CS eliminated a crucial effort to protect privacy. Vice-Chair Neuman MOVED to ADOPT the proposed committee substitute for CSSB 108(JUD), Work Draft 28-LS0973\G, (Strasbaugh, 4/14/14). Co-Chair Stoltze OBJECTED for discussion. 9:38:41 AM ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES SECTION-JUNEAU, CRIMINAL DIVISION, DEPARTMENT OF LAW testified in favor of good balance regarding the legislation. The balance included privacy for those people mistakenly charged or arrested and those people who should not be protected. Representative Costello requested an explanation of the CS. 9:40:18 AM Ms. Carpeneti explained that the CS proposed that records be removed from Court View for confidentiality. The records included those where a person was arrested without a charge from a prosecuting authority or probable cause. The difference was that cases for people acquitted after a jury trial were not removed. She informed the committee that when a person was acquitted by a jury, the charges were not established by proof beyond a reasonable doubt, but acquittal did not prove that the person did not commit the offense with probable cause in support of the crime. 9:41:24 AM Representative Munoz asked if a person would apply to have the cases removed from Court View after an acquittal. Ms. Carpeneti replied that the course would remain public, as stated in the CS. 9:42:09 AM Representative Munoz asked about the situations where cases were removed from Court View. Ms. Carpeneti understood that an application for removal of cases was not necessary in either version of the bill. Co-Chair Stoltze asked Vice-Chair Neuman to chair the remainder of the meeting. 9:42:33 AM Ms. Carpeneti asked if her explanation of the CS was adequate. 9:43:32 AM Vice-Chair Neuman took the gavel. Representative Wilson commented about the lack of process regarding whether a person remained on Court View. She noted that an application for removal of a case or name from Court View would provide the necessary process. Ms. Carpeneti agreed that a process like the one suggested by Representative Wilson could provide another solution. She highlighted the importance of advertising a pattern of theft or domestic violence. 9:45:13 AM Representative Gara asked if a lack of evidence could lead to dropping a charge. Ms. Carpeneti replied yes. Representative Gara pointed out page 2, line 2 of the CS stating that a person with a dropped charge would remain on Court View. Ms. Carpeneti replied yes. Representative Gara discussed a case where an innocent person had charges dropped and asked Ms. Carpeneti if innocent people might remain on Court View. Ms. Anne Carpeneti replied that if a case was presented to a grand jury who then returned a no true bill, the Court View documentation would be removed. She added that a finding of no probable cause at a bail hearing would also remove the case from Court View. Representative Gara asked if the crime was a misdemeanor and the prosecution dropped the charge for lack of evidence, would the person remain on Court View. Ms. Carpeneti explained that if a person was charged by a law enforcement officer, and the case was screened out by the law office, a charging document would not be filed. 9:46:50 AM Representative Gara wondered about a case with a misdemeanor charged and tried without a grand jury. In the hypothetical scenario, the evidence was not present and the charge was dropped, yet the accused person's name would remain on Court View. Ms. Carpeneti disagreed and explained that the charging document would not have been filed during the screening process in the law office. Representative Gara repeated his question differently. He asked if the prosecution filed a charge against a person and found later that the person was innocent, the CS stated if the charge was dropped, the case would remain on Court View. Ms. Carpeneti replied correct. She agreed that the CS was not perfect but she believed that the CS allowed for the best balance to protect the public and people who were mistakenly charged. 9:48:22 AM Representative Gara agreed that the criminal justice system was imperfect. He acknowledged that some criminals and drunk drivers had never been charged and were not on Court View. Given that the system was imperfect, he believed in protection of the innocent people first. 9:49:30 AM Ms. Carpeneti stated that people addressed in the CS had a probable cause finding. Representative Gara disagreed. He pointed to line 2, sentence 2, where it was stated that there was no grand jury in misdemeanor cases. Ms. Carpeneti agreed, but stated that a misdemeanant was arraigned by a municipal officer. Representative Gara asked why the misdemeanant whose charges were dropped should remain on Court View. 9:50:30 AM Ms. Carpeneti suggested that the policy decisions were for the committee to make. She opined that the balance was better in the CS, but acknowledged that the decisions were difficult. Representative Gara apologized for his argumentative tone. Ms. Carpeneti asked about dangerous people who would be removed from Court View and kept in confidential files. She opined that the CS allowed for the better judgment regarding the decision about removing names from Court View. She stated that the original bill allowed dangerous people to be removed from Court View and made their files confidential. Vice-Chair Neuman clarified that the comments made by Ms. Carpeneti were her opinion. Ms. Carpeneti stated that the administration shared her opinion. Representative Costello asked for clarification regarding the innocent until proven guilty. She asked if the administration agreed with the statement. Ms. Carpeneti clarified that the term guilty in the legal system referred to guilt by proof beyond a reasonable doubt by a jury of 12 people. She agreed that a person should not be sent to jail unless the prosecution could establish proof beyond a reasonable doubt. She believed that a person should be able to review the Court View document. She added that the Court View document specified that the list did not include convictions, but only warnings. She believed that people should have access to the information unless no probable cause was established or the state or prosecuting authority did not file charges. 9:53:32 AM Representative Costello mentioned that the language in the original version of the bill focused on the acquitted defendant. She noted that the CS focused the language toward the prosecuting authority on line 2, page 2 and the judicial officer on line 4, page 2. She asked why the shift away from the innocent occurred in the CS. 9:54:41 AM Ms. Carpeneti stated that the entities such as the jury, the judge, and the prosecuting authority traditionally made decisions regarding criminal charges. She characterized the shift as one away from a jury's decision. Representative Costello discussed testimony on the original bill regarding the demographic interested in Court View. She asked the response to the testimony heard interpreting guilt following an arrest. Ms. Carpeneti agreed that the issue was troubling. She assumed that the population was informed and warned that charges did not indicate convictions. She suggested further education about Court View and stated that many people were listed on the sight for one reason or another. If a person remained on Court View, it was because a judicial entity suspected probable cause to charge the person. 9:57:35 AM Representative Costello asked about the CS, line 9, page 2. Ms. Carpeneti discussed the exception and noted the presence in most iterations of the bill. The section addressed people who worked for the Department of Health and Social Services regarding decision making related to the welfare of the child and adult with a disability. The information available to the department personnel allowed them to provide a safe situation for a disabled person or child in need. Representative Costello asked if the section was in the original version of the bill. Ms. Carpeneti did not recall, whether the section was in the original version of the bill. 9:59:56 AM Representative Costello acknowledged that the sponsor concurred that the section was in the original version of the bill. Vice-Chair Neuman appreciated the representative's questions. 10:00:01 AM Representative Holmes discussed Court View. She expressed concern about other aspects of the bill. She expressed greater concern with the fact that the bill sealed records of cases removed from Court View. She expressed discomfort with the earlier versions of the bill and appreciated the CS most for its tailored approach. She noted that a person might have a long list of arrests without conviction, whose records would be confidentially sealed. She expressed extreme discomfort with the broad language included in the original bill. She argued that Court View was a different matter. She appreciated Representative Wilson's idea to petition to have a case removed from Court View. She requested the opinion of the administration regarding the sealing of court records. 10:03:24 AM Ms. Carpeneti shared the concern that the records would be deemed confidential. She shared a history of the bill. She agreed that the physical files and those found electronically on Court View were connected. She understood that a proposed court rule could separate Court View documents from the paper ones in the court building. She stated that neither version of the bill decoupled the electronic from the paper records. She agreed with the gravity of the concern. Representative Holmes clarified that the language in the CS would also seal the records. 10:04:53 AM Representative Thompson revisited the statements made by Representative Gara. He noted the hypothetical case where charges were made for a reason, but dismissed for lack of evidence. The case would remain on Court View and affect a person's ability to achieve employment. Ms. Carpeneti understood the serious concern. She suggested that maybe the CS did not extend far enough in the circumstance mentioned. She preferred the CS to the regular bill in terms of public protection. She suggested that the committee "fine tune" paragraph one of the CS. She offered to help the committee work to implement their suggestions. 10:06:55 AM Representative Wilson suggested that a representative from the Alaska Court System join the conversation. She understood that the automatic withdrawal of some cases added to the concern from the judicial and court system. 10:07:34 AM NANCY MEADE, GENERAL COUNSEL, ALASKA COURT SYSTEM, stated that with either version of the bill, the qualifying cases would be made confidential automatically both on Court View and in paper form. She expressed concerns with the work draft and the concerns of automatic removal of cases without petition. She asked if the filing of a petition with a questionnaire might allow for more comfort in the bill. Ms. Meade stated that the court was neutral on the bill. The petition would have a tremendous fiscal impact on the court system. She stated that 9,508 misdemeanors were dismissed last year and an influx of petitions would increase the caseload and cost. She believed that the sponsor's decision to avoid the use of petition was due to the high fiscal impact. 10:09:52 AM Representative Wilson expressed concern about the number of misdemeanors on Court View. She suggested a fee for the petition. 10:10:27 AM Representative Holmes asked about steps taken by the court system to address the issue. She was interested in the separation of Court View as an administrative court function from sealing confidential records. 10:11:07 AM Ms. Meade responded that two of the three categories of cases covered in the CS included those with no probable cause and no charging documents filed were addressed in a draft court rule. She noted that the court had an administrative rule that eliminated certain cases from Court View. The Supreme Court determined that the cases should not be posted because of the ease with which the information could be accessed. She anticipated the adoption of the proposed rule within the next 60 days, which would remove a criminal case from Court View that was dismissed because the prosecuting authority declined to file a charging document. Also, removed would be a case dismissed for lack of probable cause. She opined that the bill was not necessary because of the proposed court rule already in the public comment process. The cases mentioned were much less controversial. 10:13:28 AM Vice-Chair Neuman requested clarification regarding the version of the bill being discussed. Ms. Meade responded that the two of the categories addressed in the CS were covered in the court rule. She stated that the court rule was less excessive because the paper record remained accessible. The items covered in the original version of the bill included all cases that resulted in full dismissal. Full acquittals were not covered in the court rule. 10:14:20 AM Representative Gara asked about a case where the prosecution charged, but the charge was dropped prior to the trial. He asked if the people would remain on Court View after the adoption of the court rule. Ms. Meade replied yes. Representative Gara asked if a person was charged by the prosecution, and the case was dismissed under the original bill, would the case be removed from Court View. He hypothetically suggested that a person was charged with a crime and the prosecution realized after interviewing witnesses that the case was poor, so the charge was dropped. He asked if the person would remain on Court View under the proposed rule considered by the court. Ms. Meade replied yes. Representative Gara clarified that legislative intent was indicated to protect people in the hypothetical scenario. Ms. Meade agreed and noted that the initial version of the bill would protect those people in the hypothetical scenario. Representative Gara stated that under the CS, a person wrongly imprisoned would remain on Court View because they were indicted by a grand jury. Ms. Carpeneti concurred and noted that the 9000 dismissed misdemeanors addressed a majority of cases dismissed as a result of a plea agreement where the defendant agreed to plead guilty to one charge, while the other charges were dismissed. She wanted to clarify that mistakenly charged misdemeanors were relatively rare in the state. 10:17:18 AM Ms. Meade disagreed and noted that the number of misdemeanors quoted were those completely closed by dismissal where there was no guilt found on any of the charges in the case. Ms. Carpeneti stood corrected. Vice-Chair Neuman requested Senator Dyson's presence at the testifier table. 10:18:02 AM Representative Guttenberg asked about the three scenarios provided in the original bill. He asked if an administrative procedure was available to appeal for the removal of one's name from Court View. Ms. Meade replied that a rule existed allowing a person to make their case confidential. She noted that a weighing process existed to allow discernment for removal of names or cases from Court View. The court would not remove a name or case from Court View for reasons of privacy. Ms. Carpeneti mentioned a procedure in AS.12.62 where a person could have a name or case removed from the Alaska Public Safety Information Network. 10:19:59 AM Senator Dyson expressed frustration with the Department of Law and the Alaska Court System regarding the legislation. He informed the committee about his multiple requests to the Department of Law regarding obsolete items in the criminal code. He mentioned his frustration regarding the CS introduced at the last moment. He stated that he first read the CS eight minutes prior to the meeting. He agreed that the criminal justice system was flawed. He stated that the procedure for removing one's name from Court View was ineffective. The procedure allowed a person to visit the head of the resting department to petition for removal of a name or case from Court View. Wrongful arrest must be ruled in order for a name or case to be removed from Court View. He suggested that a police department admitting to wrongful arrest was unlikely. He stated that practical matters would arise, but opposition to the bill came from one person who was passionate about protecting victims. 10:24:42 AM CHUCK KOPP, STAFF, SENATOR FRED DYSON, attempted to alleviate Representative Holmes's concerns about the legislation. He stated that the conservative approach of Court View allowed for maximum details to remain on the site, even when a plea was accepted in a misdemeanor case. The bill addressed cases where all charges were acquitted to restore the presumption of innocence to people who were not tried or were acquitted. He recalled experiences as a police officer when prosecutors questioned the system. He opined that the standard of perfect innocence was not the goal of the legislation. The bill obtained a balance because it required all charges to be dismissed. He noted the exceptions provided at the administration's request for all health and social services agencies responsible for the safety of children and vulnerable adults. Mr. Kopp stressed that the original version of the bill addressed the balance that the sponsor sought. 10:28:55 AM Mr. Kopp stated quoted a trial before the Roman Senate. Representative Holmes appreciated the effort to find the right balance between protecting people who were falsely arrested and the public's right to information. She asked about the original version and whether restraining orders and multiple charges of domestic violence where the victim recanted would remain on the site. 10:30:16 AM Senator Dyson replied that the court rule would remove the cases because so many of them were spurious and often related to custody matters. He shared a story about a friend released from Goose Creek Correctional Center for domestic violence charges. 10:31:17 AM Representative Holmes asked the difference between Court View and the paper records. She asked about the sponsor's primary interest regarding the sealing of public records at the courthouse. Mr. Kopp replied that the concern was the technological advances that allowed for maximum exposure via Court View. He pointed to the legislative intent section at the beginning of the bill stating "to the extent practicable the court will state records confidential." He stated that the fiscal note would be enormous if files were sealed. The records from the date of enactment of the bill would be deemed confidential upon passage of the legislation. He emphasized that confidential and sealed were two very different actions. He noted that any individual with a written order from the court would allow a balancing test to be outweighed by a legitimate interest in confidentiality. He clarified that a judge was the only person allowed to view a sealed record. 10:34:29 AM Representative Holmes stated that the Alaska Court System would look to the legislature for guidance on the issue. She expressed some concern about Court View, but was most concerned about the sealing of paper records. She expressed concerns about some citizen's questionable histories and the protection of herself and the public. Vice-Chair Neuman noted that there had been a robust discussion on the bill. The bill would be heard again later. Representative Gara asked to address a concept that had arisen. He would address his question at a later time. CSSB 108(JUD) was HEARD and HELD in committee for further consideration. 10:37:21 AM RECESSED 4:28:05 PM RECONVENED