04/02/2010 01:30 PM Senate JUDICIARY

SB 249-PUBLIC RECORDS/ELECTRONIC TRANSMISSIONS                                                                                  
                                                                                                                                
1:34:07 PM                                                                                                                    
CHAIR FRENCH announced the consideration  of SB 249. The bill was                                                               
heard previously.                                                                                                               
                                                                                                                                
MAX HENSLEY, Staff  for Senator Johnny Ellis, sponsor  of SB 249,                                                               
offered to answer questions.                                                                                                    
                                                                                                                                
CHAIR  FRENCH  reported  that  he  heard SB  249  in  a  previous                                                               
committee and his questions were answered at that time.                                                                         
                                                                                                                                
SENATOR COGHILL  referred to the  fiscal note analysis  that said                                                               
there  is  no  current  method   to  automatically  archive  data                                                               
transmitted on instant  messages and asked if the  sponsor has an                                                               
answer for that.                                                                                                                
                                                                                                                                
MR. HENSLEY  replied the bill  drafter's explanation is  that the                                                               
language that  currently exists would not  require the Department                                                               
of Administration  (DOA) to make  records available that  are not                                                               
currently being  stored. But if  instant messages were  stored in                                                               
the  future,  DOA  would  be   required  to  make  those  records                                                               
available.                                                                                                                      
                                                                                                                                
SENATOR  COGHILL  commented that  this  will  probably force  the                                                               
administration to  have a discussion  on whether or not  to allow                                                               
instant messages in any decision-making process.                                                                                
                                                                                                                                
1:37:34 PM                                                                                                                    
ALAN  BIRNBAUM,  Assistant   Attorney  General,  Information  and                                                               
Project  Support  Section,  Civil  Division,  Department  of  Law                                                               
(DOL), reported  that DOL  supports what SB  249 attempts  to do,                                                               
but  the bill  raises significant  policy and  legal issues.  DOL                                                               
would like to  work with the sponsor and  the Judiciary Committee                                                               
to  resolve these  issues  which fall  into  four categories,  he                                                               
said.                                                                                                                           
                                                                                                                                
MR.  BIRNBAUM spoke  to the  11 page  letter he  sent to  Senator                                                               
French on April  2, 2010 detailing these concerns. [A  copy is in                                                               
the bill  file.] The first  concern, which relates to  Sections 4                                                               
and 5  of the  bill, is  that the  bill might  create substantial                                                               
unfunded monetary  burdens for state and  municipal agencies. The                                                               
second concern,  which relates  to Sections  1, 2,  3, and  7, is                                                               
that the definitions in the bill  are vague and overly broad. The                                                               
third concern, which  relates to Section 2, is  that the intended                                                               
scope is  not clear, could  substantially impede  state business,                                                               
and is not appropriate to  include in the Alaska Executive Branch                                                               
Ethics Act.  The fourth concern,  which relates to Section  6, is                                                               
that  the proposed  amendment  to the  Ethics  Act is  critically                                                               
vague.                                                                                                                          
                                                                                                                                
1:48:08 PM                                                                                                                    
CHAIR FRENCH  admonished Mr. Birnbaum  for waiting 61  days after                                                               
the bill was  introduced to submit such  an extensive, exhaustive                                                               
letter  pointing out  problems.  He  added that  if  he were  the                                                               
sponsor  he'd  be  smoking  mad and  asking  for  a  face-to-face                                                               
conversation with  his boss to find  out what took so  long. "I'm                                                               
just astonished  that this  is coming in  front of  the committee                                                               
now with 17 days to go in the session," he concluded.                                                                           
                                                                                                                                
SENATOR  WIELECHOWSKI noted  that the  packet did  not contain  a                                                               
fiscal note for the exorbitant  expenses that supposedly would be                                                               
incurred by this bill.                                                                                                          
                                                                                                                                
MR. BIRNBAUM replied DOL is still analyzing the fiscal affects.                                                                 
                                                                                                                                
CHAIR FRENCH  noted that the  Department of  Administration (DOA)                                                               
submitted a zero fiscal note dated March 22.                                                                                    
                                                                                                                                
ANDREA MCLEOD, representing herself,  asked the committee to pass                                                               
SB 249 to  stop the practice of using private  email accounts for                                                               
conducting official  state business.  She said she  also supports                                                               
including any  history of using  private emails to  conduct state                                                               
business because doing so could  correct and clarify ambiguities.                                                               
She related her experience in  making public records requests and                                                               
finding  that state  business  had been  conducted  on a  private                                                               
Yahoo account.                                                                                                                  
                                                                                                                                
1:51:21 PM                                                                                                                    
MS.  MCLEOD opined  that when  doing research  and analyzing  the                                                               
legislative intent of  a statute, it's important  for the history                                                               
to  be concise  and  clear  and to  ignore  the  history does  an                                                               
injustice to the legislative record  and Alaskans. She encouraged                                                               
the committee to help preserve  and protect the public's business                                                               
by passing SB 249 from committee.                                                                                               
                                                                                                                                
1:53:12 PM                                                                                                                    
CHAIR FRENCH  asked Mr. Birnbaum  by Monday to make  concrete and                                                               
written suggestions that  would fix the issues he  pointed out so                                                               
that the committee could move the legislation forward.                                                                          
                                                                                                                                
SENATOR COGHILL said  he'd also like to get  clear information on                                                               
private phone  records that  are digital in  the event  that they                                                               
become as egregious as some emails have become                                                                                  
                                                                                                                                
SENATOR EGAN expressed  concern that DOL waited so  long to raise                                                               
these issues.                                                                                                                   
                                                                                                                                
CHAIR FRENCH announced he would hold SB 249 in committee.