Legislature(2001 - 2002)
04/16/2002 03:42 PM House MLV
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 326-SECURITY OF FACILITIES AND SYSTEMS [Contains discussion of SB 238, the companion bill in the Senate] CHAIR CHENAULT announced that the final order of business would be HOUSE BILL NO. 326, "An Act relating to state plans and programs for the safety and security of facilities and systems in the state; and providing for an effective date." [The bill was sponsored by the House Rules Standing Committee by request of the governor.] Number 2770 CAROL CARROLL, Director, Administrative Services Division, Department of Military & Veterans' Affairs, came forward accompanied by Deborah Behr of the Department of Law to present HB 326. She noted that Dennis Poshard of the Department of Transportation & Public Facilities (DOT&PF) could answer questions as well. MS. CARROLL explained that Section 1 deals with the ability of DOT&PF to have citation authority for violations of security plans or actions; this applies to international and rural airports. If the Federal Aviation Administration (FAA) determines there is a security violation at an international airport, [the FAA] can charge the international airport - the DOT&PF. Currently, DOT&PF can apply the fine to a lessee or a person who has violated airport security, either by pulling the lessee's lease - which she said seems to be overkill - or by having the police arrest an individual on a criminal charge. Thus the bill allows [the department] to set in regulation a fine of up to $1,100 for a violation, for example, if somebody forgetting to close a security door; that could be applied to the person who actually violated that stipulation. Number 2664 MS. CARROLL reported that Section 2 allows the state an exemption from the public records law for certain narrowly defined security plans, procedures, systems, facilities, or infrastructure; currently, someone may ask for those documents and the state has no specific instance when it can refuse to allow a person to have those security plans. She suggested that Ms. Behr, who has had to apply the current, broad public records law, could address that further. Number 2623 MS. CARROLL turned to Section 3, noting that if the state adopted by regulation a security plan and it were put before the public, some harm could come to the public if that information got out. Thus Section 3 allows the state to have the adoption be done by an agency head through an order; hence the public could be told what they couldn't do, and yet the details of the security plan wouldn't have to be provided. This would be most visible in an airport security plan. She asked Ms. Behr to elaborate on the bill. Number 2574 DEBORAH BEHR, Assistant Attorney General, Legislation & Regulations Section, Civil Division (Juneau), Department of Law, informed the committee that she frequently provides advice on public records issues. She noted that this bill stemmed from the Terrorism Disaster Policy [Cabinet] headed by Major General Oates to address issues arising from [the terrorist attacks of September 11, 2001, on the East Coast]; those events caused the state to look closely at all the [appropriate] statutes to see how they could be clarified in order to respond better in a crisis. MS. BEHR explained that Alaska has one of the broadest public records Acts in the nation. "A record is public unless I can point to an exception," she said. She reported that [the department] had found no clear exemption in the Act for security plans, programs, procedures, and infrastructure. She noted that a security plan could be a plan to protect a public facility in Alaska, for example; a security program could be a risk assessment done by any state agency looking to see where risk lies; security procedures could involve getting into any state building; and evaluations of systems are plans that might be around and that might be of interest. She explained: What we had to do was go through and decide a way to do it that was fair, and in recognition of our strong heritage toward public records' being available to the public. And so we decided on a very tailored amendment that basically says that it's got to be one of these special things - security plans. But even if it is a security plan, it's got to, with the disclosure of it, result in some kind of public harm. MS. BEHR noted that on page 2, lines 10-17, [the bill] therefore sets up the situations when a department official, even for a security plan, still must meet these standards. For example, disclosure of a security plan might include what color of badge is required to enter a state building on a certain date. Another consideration is the endangerment of the life, health, or safety of state employees or the public. She reiterated that the exception is narrowly tailored. Number 2459 MS. BEHR, addressing protection of the public, said: If the public believes that an agency person may be misinterpreting this, there are existing provisions in law for administrative appeals and for appeals to the court. This kind of exception is not unusual. The federal law has a national defense exemption in it; we don't have that in the state law. And also - the tailoring - I took the language of it very much from the prosecutors' investigatory privilege when the prosecutor has an ongoing investigation, that somebody can't come in and say, ... "What streets are you going out and doing surveillance of," for drugs or something like that. So that's what Section 2 is designed to do. Number 2427 MS. BEHR turned attention to Section 3, explaining that it deals with an unusual situation when a state agency is subject to the Administrative [Procedure] Act. In order to have a regulation, [an agency] first must put out a draft regulation for the public to look at and comment on, "and then we change it as appropriate." For a state security plan, however, [providing public notification of] details of staffing and so forth basically defeats the plan. Thus [Section 3] allows the department to implement the plan by issuing an order; the public wouldn't get in trouble for not following it until there was adequate announcement of what was expected; for example, if certain areas were to be restricted at an airport, signs would be posted. However, this wouldn't apply to all security plans. It would have to be shown that the disclosure would cause some public harm; the standards are on the bottom of page 2, continuing to page 3. Number 2353 REPRESENTATIVE MURKOWSKI observed that page 3, paragraph (3) [Section 3], doesn't mirror Section 2, subparagraph (C). She asked why the risk to public health and welfare wasn't included in the former. MS. BEHR answered: The reason why we did it was, the infrastructure is up ... in Section 2, in public records; we're bringing in evaluations of plans, infrastructures, where we can't point to an individual person being hurt. And so that's why we brought in the "real and substantial risk to the public health and safety" - in other words, a broad class ... of damage to society as a whole. In the second order, we're more limited to the risk to the life or physical health of an individual, although, I can tell you, I would have no objection to ... them being parallel. Number 2286 REPRESENTATIVE MURKOWSKI offered her understanding that Section 2 allows an exemption for plans or programs that relate to security or evaluations of systems, facilities, or infrastructures, provided that the information which is sought to be exempt relates to the security plan. Thus there would be two things happening: the security plan, for which the standards must still be met; and the evaluation, for instance, of a facility. An individual could be requesting this information, and if it related to a security component of that facility or infrastructure, then the exemption may be requested. MS. BEHR responded, "Decline to release the document." REPRESENTATIVE MURKOWSKI surmised, then, that because Section 2 includes references to facilities and infrastructure, that is where there is additional language about presenting a "real and substantial risk to the public health and welfare." MS. BEHR said that's the intent of it. Number 2220 REPRESENTATIVE GREEN asked why the amount is "$1,100 per incident" on page 1, line 12. MS. BEHR said it comes from the FAA; to her understanding, it's the cap that the FAA can assess. "We didn't want to go and look like we were trying to get more power than the FAA," she added. Number 2166 DENNIS POSHARD, Legislative Liaison/Special Assistant, Office of the Commissioner, Department of Transportation & Public Facilities, informed members that he couldn't necessarily add anything to previous testimony, other than to state support for Section 1 of the bill as a needed tool to use at some of the airports. He urged the committee's support. CHAIR CHENAULT asked whether currently the department is unable to assess a fine. MS. POSHARD affirmed that understanding and explained: The FAA fines us, the airport owners, for violations that occur. ... At least at some airports where there is an arrangement with a leaseholder, some of the contract language allows us to pass along those fines to leaseholders. But for private individuals or maybe a private airplane owner or somebody like that, we don't have any way of passing along those violations to those individuals. Number 2103 REPRESENTATIVE GREEN asked whether this applies regardless of whether it is intentional, due to negligence, or because of a simple mistake. MR. POSHARD surmised that if someone unintentionally violated a law, [DOT&PF] wouldn't issue a civil penalty. He noted that beginning at the end of line 13 [page 1] it says a person or entity is subject to a penalty if that person or entity, at the time of the violation, had [actual or constructive] knowledge of the violated law or program adopted under law. Number 2055 REPRESENTATIVE GREEN posed a situation in which someone knows the law and doesn't intend to violate it [but does so]. MS. BEHR replied: "Intentional" is a mental state dealing primarily with criminal sanctions. This is an administrative penalty. [DOT&PF] is not creating new ... crimes. In order for [DOT&PF] to assess this fine, there'd already have to be a violation of state law or state regulations. In the state law that somebody would be violating, there would be a mens rea - a mental state - in there, and it could vary. Number 2007 CHAIR CHENAULT asked whether this violation pertains to state or federal laws. MR. POSHARD noted that Section 1, subsection (b), says [the department] shall adopt regulations [under AS 44.62, the Administrative Procedure Act] to carry out the purposes of this section. Therefore, DOT&PF would adopt regulations that clearly state what the violations and attached fines are. Number 1956 REPRESENTATIVE MURKOWSKI observed that page 1 says "any ... state or federal law, pertaining to security of a state airport". She suggested DOT&PF would be the entity that could assess a penalty for violation of a state or federal law. MR. POSHARD said that's correct, to his understanding. He added that he also understood that in order to be able to assess a fine, [the department] would have to have adopted that in regulation. MS. BEHR added that this [proposed statute] is barebones; due process for notice, hearing, and opportunity for comments, as well as the appropriate fine, will be done through regulations. Number 1844 CHAIR CHENAULT asked how many facilities [this bill would affect] statewide. MR. POSHARD answered that the intention is to implement it at the state's 21 "certificated airports." Most of the other airports don't have a full-time staff person to enforce these regulations. He explained that "certificated airport" is a term used by the FAA; it includes airports such as those at Nome, Bethel, Barrow, Wrangell, and Petersburg, where commercial passenger airplanes have been approved to land. In response to Representative Green, he suggested that some local law- enforcement official such as a VPSO [village public safety officer] could have jurisdiction in other locations. Number 1730 REPRESENTATIVE MURKOWSKI referred to AS 02.15.240 and asked what criminal or other penalties would be imposed in addition to this administrative penalty of not more than $1,100 per incident. MS. BEHR said she would have to pull the statutes, but recalled that it would be a misdemeanor. She added that it's old language and is quite broad. Number 1666 REPRESENTATIVE MURKOWSKI began discussion of Conceptual Amendment 1. She referred to page 3, subsection (b), and asked Ms. Behr to put on record the concerns that had been expressed. MS. BEHR explained that there is a parallel bill in the Senate [SB 238]. One concern raised by the Senate State Affairs Standing Committee relate to the ability of the medical board to issue an order for access to medical records; hence that committee decided to delete "boards or commissions" [from SB 238]. She offered her belief that it is an acceptable change because [it doesn't affect the intent of the bill]. Number 1590 CHAIR CHENAULT indicated [Conceptual Amendment 1] should have been in members' packets. Drafted for SB 238, it read [original punctuation provided]: Page 2, line 21: Delete "each" Insert "a" Delete ", or a board or commission with regulation adoption authority," Page 2, line 23: Following "security" Insert "for a facility, system, or operation" Page 2, line 28: Delete "or board or commission" Page 3, line 7: Delete ", board's, or commission's" Number 1564 CHAIR CHENAULT asked whether anyone else wished to testify and then closed public testimony. Number 1475 REPRESENTATIVE GREEN moved to adopt Conceptual Amendment 1 [text provided previously]. There being no objection, it was so ordered. Number 1315 REPRESENTATIVE HAYES moved to report HB 326, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 326(MLV) was reported from the House Special Committee on Military and Veterans' Affairs.
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