03/31/2010 01:30 PM Senate JUDICIARY

         SB 249-PUBLIC RECORDS/ELECTRONIC TRANSMISSIONS                                                                     
                                                                                                                                
CHAIR FRENCH announced the consideration of SB 249.                                                                             
                                                                                                                                
2:51:24 PM                                                                                                                    
MAX HENSLEY,  Staff to Senator  Johnny Ellis, sponsor of  SB 249,                                                               
said the  bill strengthens and  clarifies existing  law regarding                                                               
access  to  and  preservation  of  public  records.  The  sponsor                                                               
statement  includes a  quote from  the Organic  Act of  1913 that                                                               
says that every  person has a right to inspect  any public record                                                               
and every  public officer that  has custody thereof, is  bound to                                                               
permit  an   inspection.  SB  249   updates  the   statute  while                                                               
maintaining that strong intent.                                                                                                 
                                                                                                                                
MR. HENSLEY  said the  bill makes four  major changes.  First, it                                                               
provides a consistent definition of  a public record in the three                                                               
places it's specifically mentioned  in the statutes - maintenance                                                               
of records  by state agencies;  access to records by  the public;                                                               
and  the criminal  statutes for  tampering  with public  records.                                                               
Second,  the  definition  is consistently  broad  and  explicitly                                                               
includes  electronic  transmissions  within  the  definition  and                                                               
explains that  impeding the preservation  of or access  to public                                                               
records  is  a violation  of  existing  criminal law.  Third,  it                                                               
amends  the  Executive  Branch   Ethics  Act  to  require  public                                                               
officers  to use  state email  when taking  official action.  The                                                               
current administration supports this  recognizing that items that                                                               
don't  travel  through  state systems  cannot  be  maintained  as                                                               
public records. The  final major change limits the  fees that the                                                               
state can charge for access to  public records to the actual cost                                                               
to  duplicate those  records. The  actual cost  does not  include                                                               
labor because state employees are  already being paid and as such                                                               
are part of the state budget.  This same definition is used by 14                                                               
other states nationwide.                                                                                                        
                                                                                                                                
2:54:41 PM                                                                                                                    
MR. HENSLEY  said the previous  committee asked for  a definition                                                               
for "public  officer" and for  "official action" with  respect to                                                               
the requirement  in Section  2 for public  officers to  use state                                                               
email for  official action. Both  those terms are  defined within                                                               
that same  section of statute.  "Official action"  means "advice,                                                               
participation   or   assistance,   including   a   recommendation                                                               
decision,  approval/disapproval vote,  or  other similar  action,                                                               
including  inaction,   by  public  officers."   "Public  officer"                                                               
includes the  governor, lieutenant governor, department  heads or                                                               
deputies,  division directors  or  deputies, special  assistants,                                                               
legislative liaisons,  assistants to the governor  and lieutenant                                                               
governor,   board    and   commission    members,   comptrollers,                                                               
procurement  officers, executive  directors, and  members of  the                                                               
Board of Trustees  and investment officers of  the Permanent Fund                                                               
Corporation  and  appointed  or elected  municipal  officers.  It                                                               
includes  the people  who might  have a  direct impact  on public                                                               
policy, not every state employee.                                                                                               
                                                                                                                                
CHAIR FRENCH asked  what the remedy would be if  a public officer                                                               
under Section 2  does not use a state  electronic delivery system                                                               
for their electronic transmissions.                                                                                             
                                                                                                                                
MR.  HENSLEY said  it  would  be an  ethics  violation under  the                                                               
Executive  Branch Ethics  Act. Section  6 specifies  that it's  a                                                               
criminal violation, but it hasn't been tested.                                                                                  
                                                                                                                                
2:58:15 PM                                                                                                                    
CHAIR FRENCH announced he would hold SB 249 in committee.