Legislature(1997 - 1998)

04/22/1998 01:55 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
        SR   3 - ALASKA PUBLIC SAFETY INFORMATION SYSTEM                       
                                                                               
CHAIRMAN TAYLOR explained that this resolution asked the attorney              
general to appoint a special prosecutor to investigate                         
"computergate", the possible misuse of the Alaska Public Safety                
Information System (APSIN).                                                    
                                                                               
MS. BETTY ZABECK testified via teleconference from Fairbanks and               
gave some background about her situation. She was introduced by a              
Fairbanks lawyer, MR. MIKE MACDONALD. MS. ZABECK explained that she            
had worked as a public safety dispatcher and a state trooper for               
the Department of Public Safety (DPS) and then later as a police               
officer, fire fighter, and emergency dispatcher for the City of                
North Pole.                                                                    
                                                                               
Number 120                                                                     
                                                                               
MS. ZABECK said this is a "harsh issue" for her. She dealt with                
APSIN when it was known as the Alaska Justice Information Network              
(AJIN). She said she understands there is an investigation going on            
regarding some access of APSIN. CHAIRMAN TAYLOR replied that is                
correct, there were 86 inquiries, 23 of which had been investigated            
and cleared of criminal charges.                                               
                                                                               
MS. ZABECK explained that she had been the subject of an                       
investigation by the North Pole Police Department after she had run            
some lisence plates through the APSIN system. CHAIRMAN TAYLOR asked            
why she had run the plates and she replied, "out of my curiosity."             
                                                                               
                                                                               
CHAIRMAN TAYLOR asked what had caused her to be curious and she                
replied that it was not actually political curiosity but it was                
deemed that. She said the incident occurred around election time               
and she had been with a friend when she saw some cars "of the                  
constituent" and she was curious to see who was helping this                   
individual.                                                                    
                                                                               
CHAIRMAN TAYLOR recounted that she had seen some cars parked around            
someone's campaign headquarters and she took the lisence numbers               
and ran them. MS. ZABECK replied, "Yes, sir; I did."                           
                                                                               
CHAIRMAN TAYLOR asked if then she found she had been investigated              
and MS. ZABECK replied that was approximately one week later.                  
                                                                               
CHAIRMAN TAYLOR asked MS. ZABECK if she had, at any time,                      
communicated any of the information she had learned from the system            
with any other person. MS. ZABECK said she did not. CHAIRMAN TAYLOR            
said she fit the pattern of the 86 cases before them in which,                 
apparently, no one had communicated any of the information either.             
                                                                               
CHAIRMAN TAYLOR asked what had happened to her and MS. ZABECK said             
when she found out the investigation was going on, she was told she            
had committed a felony. When she asked what she had done, she was              
told she went into the APSIN computer. She told them she had not               
committed a felony, since the DMV rules do not explicitly prohibit             
this. MS. ZABECK said she was told she would not lose her APSIN                
access if she were to call and get the person she accessed to say              
she had requested MS. ZABECK to run her record.                                
                                                                               
CHAIRMAN TAYLOR asked if she was told that if she claimed an                   
outside person without APSIN access had asked her to access APSIN,             
she would not get in trouble. MS. ZABECK said this was correct.                
CHAIRMAN TAYLOR asked if she did not claim this because it was                 
untrue. MS. ZABECK replied affirmatively.                                      
                                                                               
CHAIRMAN TAYLOR asked MS. ZABECK what happened next. MS. ZABECK                
said she retained an attorney and asked if she was going to lose               
her APSIN access. She said what she had done was not criminal, in              
fact it happened frequently at North Pole and other police                     
departments. MS. ZABECK said it is not uncommon for police                     
officers, or even private citizens, to come in and pay five dollars            
for vehicle information. She said whether or not it is a crime                 
depends how far into the APSIN system you go. MS. ZABECK said it               
becomes a crime when you go into NCIC and/or FBI files, and she                
said it was later found that she had not done that. She said she               
tried to explain this to the investigator.                                     
                                                                               
CHAIRMAN TAYLOR inquired as to the outcome of the investigation.               
MS. ZABECK said it was found that she had not done anything wrong,             
however, her APSIN access was taken away which made her unqualified            
for her job and she was terminated.                                            
                                                                               
Number 200                                                                     
                                                                               
CHAIRMAN TAYLOR asked if all she did was look up DMV information,              
not look up criminal backgrounds or any other confidential                     
information available on APSIN. MS. ZABECK said that was correct               
and looking at that other information is a crime. CHAIRMAN TAYLOR              
confirmed that she recognized this as a crime and understood it to             
be a crime. MS. ZABECK said that was correct, that would be a crime            
according to the rules.                                                        
                                                                               
CHAIRMAN TAYLOR asked if these rules are confusing and MS. ZABECK              
said they were not, at least not in that aspect.                               
                                                                               
CHAIRMAN TAYLOR reiterated that MS. ZABECK was terminated after she            
had lost APSIN access, making her unqualified for her job. MS.                 
ZABECK said this was correct.                                                  
                                                                               
CHAIRMAN TAYLOR remarked that MS. ZABECK had then sought legal                 
counsel and asked if MR. MACDONALD had participated in that case.              
MS. ZABECK said he had been involved at the beginning of the case.             
                                                                               
Number 239                                                                     
                                                                               
MS. ZABECK remarked that she had noticed that the resolution spoke             
to the poor follow up done in the APSIN investigation. She agreed              
that the follow up should have been more thorough. She said, in her            
opinion, "it depended on who you knew and what political side you              
were on".  CHAIRMAN TAYLOR asked if she was saying that she had                
information during her case that people had criminally misused the             
APSIN system to go into the federal NCIC system. MS. ZABECK                    
answered that was correct and should be in the police report.                  
CHAIRMAN TAYLOR said the committee had not received a police report            
from her case. CHAIRMAN TAYLOR thanked MS. ZABECK for her testimony            
and called MR. MICHAEL MACDONALD.                                              
                                                                               
Number 270                                                                     
                                                                               
MR. MACDONALD, an attorney residing in Fairbanks, said he had been             
involved in the early part of MS. ZABECK's case. He testified that             
the investigation MS. ZABECK was subject to was conducted zealously            
and in the same manner as any other criminal investigation. He said            
the scope of the investigation was widened as the case progressed              
in order to try to "bring in the full scale of the violation." He              
said there was suspicion that MS. ZABECK had made this access at               
the request of a third party and this possibility was also                     
zealously investigated. MR. MACDONALD said if MS. ZABECK had paid              
the five dollars she would still be there today, but the                       
investigation became very political. He said he thinks public                  
administration should be politically neutral and attempt to remain             
free from political bias. MR. MACDONALD believed MS. ZABECK                    
suffered from some political bias.                                             
                                                                               
Number 289                                                                     
                                                                               
CHAIRMAN TAYLOR asked when this incident occurred and MR. MACDONALD            
said the access was in August 1991 and the criminal investigation              
took two to three weeks to conclude. He mentioned that the civil               
suit for wrongful termination went on for much longer and was                  
concluded by a Supreme Court decision in the last year.                        
                                                                               
CHAIRMAN TAYLOR asked how they had discovered MS. ZABECK's access              
and MR. MACDONALD replied it was done openly with others present in            
the office, as MS. ZABECK thought it was above the board. CHAIRMAN             
TAYLOR presumed that one of her coworkers turned her in, triggering            
the investigation and resultant termination. MR. MACDONALD replied             
that was essentially correct. CHAIRMAN TAYLOR restated that MS.                
ZABECK did this entirely on her own, only to satisfy her curiosity             
and that she did not communicate this information to anyone, yet               
she was terminated.                                                            
                                                                               
Number 315                                                                     
                                                                               
SENATOR ELLIS asked about the scope, powers, duties and costs of a             
special prosecutor. He noted that most people are familiar with                
what has been going on at the federal level, but that the state                
does not have much experience with special prosecutors. He asked               
what CHAIRMAN TAYLOR envisioned. CHAIRMAN TAYLOR replied he                    
envisioned the same thing the Governor had just done to "clean the             
Administration's skirts" on the railroad fiber optics sale. He said            
the Governor had hired former Attorney General Charlie Cole as a               
special prosecutor/special investigator to investigate the apparent            
conflict of interest alleged against a person who negotiated this              
deal on behalf of the railroad. CHAIRMAN TAYLOR said he believes               
the funding for this will be internal, as there has been no                    
supplemental request for this among those conveyed almost daily to             
the legislature. CHAIRMAN TAYLOR said it seemed that in these two              
significant cases (APSIN and World Plus International) that there              
were also apparent conflicts of interest and he would want the                 
Governor to appoint a special prosecutor for these cases as well.              
CHAIRMAN TAYLOR doesn't think the Governor should need the                     
Legislature's encouragement to do this but commented that it seems             
he does.                                                                       
                                                                               
SENATOR ELLIS asked if CHAIRMAN TAYLOR was certain that Mr. Cole               
was acting as a special prosecutor and CHAIRMAN TAYLOR said he was             
acting as a special investigator and he assumed if he finds any                
criminal conduct he will bring it to the attention of the Attorney             
General and ask him to take it to a grand jury.                                
                                                                               
SENATOR ELLIS asked if what CHAIRMAN TAYLOR was calling for in the             
resolution is different from what Mr. Cole is doing. CHAIRMAN                  
TAYLOR replied it is not intended to be and all he wants to see is             
an objective third party conduct an investigation, not people                  
investigating their own agency or their friends, as has been going             
on in both of these cases. CHAIRMAN TAYLOR said that in the World              
Plus situation the Attorney General's office has retained private              
counsel to defend them in the civil suit that has been brought                 
against the state, as they recognize their own conflict of interest            
and cannot defend themselves.                                                  
                                                                               
SENATOR ELLIS asked if there are specific statutes that govern the             
powers and duties of a special prosecutor. CHAIRMAN TAYLOR replied             
there are such statutes that fall under the Executive branch and               
that's why all this resolution does is ask the Governor to appoint             
one and move forward.                                                          
                                                                               
SENATOR ELLIS said he was just trying to get a better feel of what             
was intended. CHAIRMAN TAYLOR explained the resolution as                      
"basically a letter to the chaplain saying why don't you clean up              
your own act."                                                                 
                                                                               
Number 367                                                                     
                                                                               
MR. KEN NORSWORTHY testified via teleconference from Anchorage. MR.            
NORSWORTHY said to be effective, a special prosecutor would need               
the authority to convene a grand jury as well as the ability to                
seek indictments without the review and approval of the Attorney               
General.                                                                       
                                                                               
MR. NORSWORTHY said there is a big difference between a special                
prosecutor or independent counsel and a special investigator. The              
former two have independent authority to decline or to seek                    
prosecution. CHAIRMAN TAYLOR stated that is why a special                      
prosecutor was requested.                                                      
                                                                               
Number 390                                                                     
                                                                               
MR. NORSWORTHY concurred with the committee's recommendation for a             
special prosecutor to resolve the unanswered questions and address             
the appearance of a conflict of interest.                                      
                                                                               
MR. NORSWORTHY believed that criticism of his investigation had                
mischaracterized what he was called upon by the committee to do. He            
said he was not called to reinvestigate the whole matter and                   
determine if any criminal acts occurred, he was asked to do an                 
"oversight review" of the entire administrative investigation and              
audit and the general handling of the criminal investigation and               
the dissemination of information. MR. NORSWORTHY was then to make              
findings and recommendations based on that review. He said his                 
report was not intended to answer all the questions surrounding                
this matter, but was only to give the committee some information on            
which they could base their decision whether to pursue this matter.            
                                                                               
MR. NORSWORTHY reported that he attempted to approach this matter              
in a totally non-political way and followed the facts where they               
led. He said he stands by his report which contains only a portion             
of the relevant facts. Again, he said he merely wanted to give the             
committee some facts to inform them if there was probable cause to             
call for a full-bore, independent, criminal investigation of the               
whole matter. MR. NORSWORTHY said he thinks the facts will support             
his conclusion.                                                                
                                                                               
Number 430                                                                     
                                                                               
CHAIRMAN TAYLOR asked MR. NORSWORTHY if one of the conclusions he              
came to was that there was an internal conflict of interest within             
both the Department of Law (DOL) and the Department of Public                  
Safety (DPS). MR. NORSWORTHY agreed and said it goes without saying            
that there is an apparent conflict of interest any time an agency              
is called to investigate members of their own agency or other                  
agencies they work closely with, particularly in the area of law               
enforcement. MR. NORSWORTHY said that beyond that, the facts of                
record indicated that there may have been some actual conflict of              
interest that influenced some decisions, such as whether to conduct            
an investigation on a particular person and whether or not to                  
decline  prosecution on a given person after they had been targeted            
as a suspect.                                                                  
                                                                               
SENATOR ELLIS commented that he had an amendment and some other                
materials that related to MR. NORSWORTHY's report but he did not               
know if this would be the appropriate time to present them. He                 
asked that MR. NORSWORTHY remain on the line. CHAIRMAN TAYLOR asked            
him to do so and MR. NORSWORTHY said he would.                                 
                                                                               
SENATOR ELLIS asked how many other witnesses CHAIRMAN TAYLOR had               
left and CHAIRMAN TAYLOR replied there were three teleconference               
participants, MR. GUANELI and several senators and representatives             
who wished to testify.                                                         
                                                                               
Number 464                                                                     
                                                                               
MR. DEAN GUANELI, Chief District Attorney of the criminal division             
of the Department of Law, came forward and presented the following             
background information on the APSIN matter. In early 1997,                     
Representative Barnes contacted the Attorney General with her                  
belief that an employee of the Department of Law had accessed the              
APSIN records of SENATOR JERRY WARD before information about his               
criminal history appeared in the press and prior to the 1996                   
election. The Attorney General shared that information with  DPS               
Commissioner Ron Otte who immediately undertook a review of the                
APSIN records, determined that no employee of the Department of Law            
had accessed SENATOR WARD at all, but that after certain                       
information about SENATOR WARD had appeared in the press, other                
employees had done so. As a result of that, Commissioner Otte                  
expanded his audit of the APSIN system to check on any accesses of             
other legislators. After consulting with legislative leadership,               
Otte further directed  the state troopers to undertake an inquiry              
into those accesses which had not been determined to be for a                  
legitimate law enforcement purpose.                                            
                                                                               
MR. GUANELI said ultimately, the Department of Public Safety                   
expended more than 3,000 hours of effort in this process and                   
troopers were pulled away from other duties to investigate these               
cases. APSIN protocols were modified, policies were modified,                  
access to the system was denied to some users, and disciplinary                
action was taken against some employees. However, the Department of            
Law concluded there was insufficient evidence to justify any                   
criminal prosecution. The Judiciary Committee subsequently retained            
special counsel (MR. NORSWORTHY). MR. NORSWORTHY's report                      
criticized the Department of Law regarding legal advice  given to              
state troopers  and the manner in which the investigation was                  
conducted.                                                                     
                                                                               
MR. GUANELI remarked that MR. NORSWORTHY's report indicated his                
legal research was nonexistent, as he did not cite a single case               
in support of his theories.                                                    
                                                                               
Number 500                                                                     
                                                                               
SENATOR WARD interjected that he had knowledge of what                         
Representative Barnes had relayed to the Attorney General. SENATOR             
WARD reported that Rep. Barnes told the Attorney General that Lori             
Otto, former chief prosecutor for the State of Alaska, was fired               
for political involvement in the 1996 elections, specifically in               
SENATOR WARD's campaign. SENATOR WARD indicated that the Attorney              
General was asked why Ms. Otto was fired on a weekday and rehired              
"under the cover of darkness at midnight or 1:00 in the morning,               
and a new job was created." SENATOR WARD said the Attorney General             
was asked if this had anything to do with the political campaign               
and Ms. Otto's transfer to the IBEW (International Brotherhood of              
Electrical Workers). SENATOR WARD said this "computer stuff" just              
spun off of that original question. He said he brought this up                 
since it had not been mentioned. SENATOR WARD reiterated that what             
Rep. Barnes had asked was regarding Lori Otto, her access to court             
records, her termination and rehire in a new position and an E-mail            
concerning her termination.                                                    
                                                                               
MR. GUANELI continued, saying MR. NORSWORTHY's legal research is               
nonexistent and his legal analysis ignores basic legal principles              
about interpreting criminal statutes. As a result, MR. GUANELI                 
said, MR. NORSWORTHY reaches incorrect conclusions about the                   
prosecuteability of these cases. MR. GUANELI said the incorrectness            
of MR. NORSWORTHY's legal conclusions undercuts a major portion of             
his report.                                                                    
                                                                               
Regarding MR. NORSWORTHY's criticisms of the legal advice given to             
the state troopers, MR. GUANELI indicated again MR. NORSWORTHY's               
legal research is nonexistent and his legal analysis ignores basic             
legal principles about conducting criminal investigations following            
administrative investigations. MR. GUANELI said MR. NORSWORTHY                 
ignored basic principles of the Alaska Constitution governing fair             
and just treatment in executive and legislative investigations, the            
right to privacy and freedom of speech. MR. GUANELI said this                  
resulted in the bad conclusions MR. NORSWORTHY reached about the               
legal advice given the state troopers and undercut his entire                  
report. MR. GUANELI said in his criticism of the troopers'                     
investigation, MR. NORSWORTHY failed to recognize one of the                   
guiding principles of our legal system: when a person is not in a              
position to judge the demeanor of a witness during an interview, he            
or she should give great deference to those who are. MR. GUANELI               
explained that the state troopers are experienced investigators and            
they looked these people in the eye and made the determination if              
further investigation was needed. He said MR. NORSWORTHY's                     
criticism of the troopers amounts to second-guessing and "being a              
Monday morning quarterback" and again this undercuts his report.               
Each one of these flaws alone deprives MR. NORSWORTHY's report of              
a solid foundational basis for this resolution, according to MR.               
GUANELI.                                                                       
                                                                               
Number 539                                                                     
                                                                               
MR. GUANELI explained there is a rule in Alaska regarding the                  
interpretation of statutes called strict construction; strict                  
construction means that any ambiguities are interpreted against the            
state. MR. GUANELI added that anyone charged with a crime must be              
clearly noticed of what that crime was. MR. NORSWORTHY's report                
discusses the criminal statute using phrases like "it could be                 
argued" and "arguably." MR. GUANELI told the committee when lawyers            
see those kinds of word without any case citations at all, it                  
should give them pause about the conclusions that are reached. MR.             
GUANELI noted that MR. NORSWORTHY backed off a bit in his testimony            
before the committee, telling them those misdemeanor statutes are              
kind of "muddy waters." Muddy criminal statutes under the rule of              
strict construction will be construed against the state and MR.                
NORSWORTHY's theories, arguments and suggestions about how they may            
be interpreted are simply wrong, according to MR. GUANELI.                     
                                                                               
MR. GUANELI suggested that he, at least, has been consistent in his            
testimony to the committee. He said he pointed out at the joint                
meeting last May that there were problems with these statutes as               
applied to this kind of conduct. He said he told them that the                 
misuse of confidential information statute does not apply to merely            
looking at something, but requires a use of that information. MR.              
GUANELI indicated he told the committee that the felony statute                
involving criminal use of a computer applies to "hackers."                     
                                                                               
MR. GUANELI continued, saying there are certain ethics of the legal            
profession, some applying to prosecutors specifically. Prosecutors             
have a duty to refrain from pursuing criminal charges unless there             
is probable cause to believe the charges are warranted, including              
probable case to believe the statutes can be applied to that                   
conduct. MR. NORSWORTHY also ignored some basic legal principles               
about how the troopers were required to conduct this investigation,            
MR. GUANELI claimed. He said in all of the instances investigated              
there had been a prior administrative inquiry by the person's                  
employer. CHAIRMAN TAYLOR interjected, "Why couldn't the troopers              
use those?" and MR. GUANELI replied that statements given in an                
administrative investigation by government entities are often                  
considered to be compelled testimony (for fifth amendment purposes)            
and cannot be used in a criminal investigation. MR. GUANELI said               
this applies particularly to police officers, who generally have               
policies to this effect written into their procedures. CHAIRMAN                
TAYLOR again interjected saying, "You can't use them in a criminal             
prosecution, but what you do is you give them the opportunity to               
either tell you the truth or get themselves on a black box, and if             
they don't tell you the truth they lose their job, Dean. We all                
know how the system works. You were not intending to bring criminal            
charges when you did the investigation."                                       
                                                                               
Number 570                                                                     
                                                                               
MR. GUANELI said the troopers did not rely on any of the                       
information from the administrative inquiry "in order to preserve              
any possibility of a criminal prosecution arising out of the                   
troopers' investigations; if they did, any information that was                
given in that or anything derived from that probably could not be              
used in a criminal prosecution . . . particularly with police                  
agencies." MR. GUANELI explained that police officers in any                   
administrative investigation are required to answer questions by               
their employers and that is a compelled statement and cannot be                
used in a criminal investigation. MR. GUANELI said if they had                 
given them advice to go ahead and look at "all that stuff" then MR.            
NORSWORTHY would have had grounds to criticize them, as they would             
have likely ruined any possibility of a criminal prosecution. The              
advice he gave them was good, solid, cautious legal advice, MR.                
GUANELI asserted.                                                              
                                                                               
MR. GUANELI said MR. NORSWORTHY also ignored some basic                        
constitutional principles, particularly the fair and just treatment            
in executive and legislative investigations, right to privacy and              
freedom of speech. The APSIN investigations have been criticized               
because the troopers were instructed not to ask questions about                
political and union affiliations. CHAIRMAN TAYLOR asked who                    
instructed them to do that and MR. GUANELI said those were his                 
instructions, with the legal advice that is was not proper to ask              
these questions unless there was some evidence to suggest  a                   
connection to the APSIN access.                                                
                                                                               
TAPE 98-38, Side B                                                             
Number 001                                                                     
                                                                               
CHAIRMAN TAYLOR asked who it was that took notes that day (in May)             
and MR. GUANELI replied that he did not recognize the handwriting              
but maintained he had been consistent in his testimony and had                 
previously advised them that there had to be a link in order to ask            
questions about political philosophy. CHAIRMAN TAYLOR responded                
that he believed Mr. Otte had told him he thought politics and                 
union activities appeared to be involved and that he would make                
certain that this would be investigated thoroughly. CHAIRMAN TAYLOR            
said the record does not reflect MR. GUANELI saying anything about             
the troopers not being able to ask questions about political                   
involvement. MR. GUANELI read part of his testimony from the                   
transcript of the May meeting in which he stated, "I'm suggesting              
it is an area in 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 risk and I don't think            
that we can simply go there based on speculation and rumor; there              
has to be some logical connection in order for that link to be                 
made." MR. GUANELI said his advice to the committee and the                    
troopers has been consistent.                                                  
                                                                               
MR. GUANELI indicated that it is an easy process to find out a                 
person's political affiliation, as voter registration is a matter              
of public record. CHAIRMAN TAYLOR said this was not what was                   
relevant, the fact was that 86 different candidates were accessed              
and that should have triggered a reasonable assumption that                    
politics had something to do with it. MR. GUANELI countered that 60            
of those were cleared, leaving only twenty. CHAIRMAN TAYLOR argued             
that 60 were never "cleared", he said this whole series of people              
were excused by it being "summarily decided that those people were             
too busy for anybody to even ask questions."                                   
                                                                               
Number 554                                                                     
                                                                               
DEAN GUANELI stated that the evidence transmitted to MR. NORSWORTHY            
shows this to be untrue. In fact, inquiries were made to agencies              
and written responses were sent back. He disagreed with CHAIRMAN               
TAYLOR's characterization that these were written off and                      
disregarded.                                                                   
                                                                               
CHAIRMAN TAYLOR said, "Let's just get back to the question . . . I             
know you have a pat answer there you want to read to us . . . Who              
took the notes? MR. GUANELI replied that he did not know. CHAIRMAN             
TAYLOR said he was referring to the meeting on May 19, 1997 with               
(reads from notes) "Guaneli, Johnson, Linton, Cassanovas, Hughes,              
and then has your name written out to the side of the number 1 and             
it says 'Legislature not victims', did you decide that none of the             
people who had their privacy invaded could be classed as victims?"             
CHAIRMAN TAYLOR stressed the fact that this meeting occurred before            
any investigation was underway. MR. GUANELI replied that when a                
criminal prosecutor talks about a victim, they are talking about               
someone who has been subjected to a criminal act. MR. GUANELI said             
there has never been any evidence that crimes were committed here,             
that has been their position from the very beginning and was clear             
in Commissioner Otte's testimony, so to apply the label of victims             
here seemed inappropriate.                                                     
                                                                               
CHAIRMAN TAYLOR asked MR. GUANELI if he was the one who talked                 
about not revealing the names of the perpetrators and MR. GUANELI              
replied that legislators were provided with information about what             
agency had run them and how many times, however, there is a                    
specific statute that makes the recipients of criminal justice                 
information (people who access the system) confidential and they               
did not feel it was appropriate to provide specific names to                   
legislators. He said they were trying to follow the law. CHAIRMAN              
TAYLOR commented that by "following the law" the victims never                 
found out who ran them and were unable to provide any information              
about the person they might have had. CHAIRMAN TAYLOR gave the                 
example of Representative Hodgins and the Juneau dispatcher who ran            
his name and later worked for his opposition. DEAN GUANELI stated              
that he believed that Representative Hodgins knew that Adam Berg               
had run his name and that case was one of the cases where that link            
was clear and the troopers did go into questions about political               
activity. The specific criticism of MR. NORSWORTHY was that they               
did not go into this area and MR. GUANELI maintained this was a                
proper decision. They found out people's party affiliation and this            
was indicated in the files transmitted to MR. NORSWORTHY, although             
he did not mention it. MR. GUANELI supposed perhaps MR. NORSWORTHY             
felt party  affiliation was not enough and that they should have               
gotten more. DEAN GUANELI asked, "once you start going down that               
road of inquiring into someone's political beliefs and their                   
political activities, where do you stop? Do we ask . . . are you               
now or have you ever been a member of the communist party?".                   
CHAIRMAN TAYLOR suggested that he never started asking these                   
questions, and asked MR. GUANELI if he was the one who excised the             
questions having to do with unions and politics. MR. GUANELI said              
he told CHAIRMAN TAYLOR last May that that was what he considered              
appropriate and he still sticks by and is proud of that advice. MR.            
GUANELI said he did give that advice and did not think the troopers            
should have been asking that type of question because where you end            
up is asking the type of question asked in Washington, D.C. in the             
mid-1950's.                                                                    
                                                                               
Number 460                                                                     
                                                                               
CHAIRMAN TAYLOR said that before the deprtment was able to                     
determine if any crime had been committed they would have to have              
some sort of prima facie evidence that someone had communicated or             
used the information. MR. GUANELI agreed this was correct. CHAIRMAN            
TAYLOR said MR. GUANELI then prevented the investigators from                  
looking for this information that would connect that person's                  
activities. MR. GUANELI argued that the question was asked, "did               
you give this information to anyone?". CHAIRMAN TAYLOR said it was             
not asked if they used it themselves for any purpose. He submitted             
that Mr. Berg did and there was more than prima facie evidence to              
support that. MR. GUANELI agreed to disagree on that point.                    
                                                                               
CHAIRMAN TAYLOR went back to the notes he was examining from the               
May 19th meeting. MR. GUANELI explained that the purpose of the                
meeting was to provide the troopers with legal advice on how to                
approach the investigation, something his department does all the              
time. CHAIRMAN TAYLOR asked about where it said "union/political               
questions, it would put them off - avoid prying questions                      
politics/unions to give leg. ______ (excised) fodder." CHAIRMAN                
TAYLOR asked what MR. GUANELI might have meant for someone to take             
such notes. MR. GUANELI said one of the great fears during the                 
investigation was that these people under investigation would not              
talk to the troopers at all, as they had no obligation to. MR.                 
GUANELI said after all the publicity last session, he was amazed               
that any of them actually did. He explained they attempted to                  
approach them in a non-threatening way so they would not refuse to             
speak. MR. GUANELI reported that these people had already been                 
talked to by their employers, some had had their APSIN access cut              
off, some had received letters of reprimand or other discipline and            
it was a concern that they would not feel threatened so they would             
actually talk.                                                                 
                                                                               
Number 445                                                                     
                                                                               
CHAIRMAN TAYLOR asked what word had been removed. MR. GUANELI said             
he did not know and was not sure why it had been edited but                    
suggested CHAIRMAN TAYLOR might put in any word he liked. CHAIRMAN             
TAYLOR asked, "fodder for what?" and MR. GUANELI responded,                    
"political fodder. What we feared, Senator, was that these people              
. . . would become fodder in some sort of legislative hearings that            
would make them the scapegoats in this matter. We thought that they            
would be fodder for you."                                                      
                                                                               
Number 430                                                                     
                                                                               
SENATOR PEARCE said she thought most of these people are members of            
some type of employee organization. She asked if it ever became a              
topic that the head of at least one employees' union had been                  
quoted as saying that the union had hired private investigators to             
look into the backgrounds of legislators to try and find things to             
use against them. MR. GUANELI said that is an allegation he and Mr.            
Otte had not heard until MR. NORSWORTHY's interview of Commissioner            
Otte in January.                                                               
                                                                               
SENATOR PEARCE asked if it is or is not against the rules to access            
the APSIN system without any reason other than curiosity. MR.                  
GUANELI replied that it is improper. SENATOR PEARCE asked what that            
meant  and if it could be a cause for discipline. MR. GUANELI                  
replied it would subject a person to discipline from their                     
employer.                                                                      
                                                                               
SENATOR PEARCE asked at what point this improper act becomes a                 
crime. MR. GUANELI replied, "when the information is used for an               
unauthorized purpose."  SENATOR PEARCE asked how that could be                 
proved if they never asked. MR. GUANELI argued that they did ask,              
they asked if the person gave the information to anyone or shared              
the information. He said there were a variety of ways that                     
information could be used but it seemed the legislators' interest              
was whether people had only looked at it or if it was shared.                  
SENATOR PEARCE asked what sort of disciplinary action was taken in             
cases where people only looked at the information. MR. GUANELI did             
not know entirely, but did know that some letters of reprimand were            
issued. SENATOR PEARCE asked if the discipline in this case was                
different, if a different standard had been used, than that which              
has been used on other state employees who have done the same thing            
over the years. MR. GUANELI believed that state employee discipline            
is governed by a system of "progressive discipline" in which low               
levels of discipline are used initially then the level of                      
discipline progresses. He believes this concept of progressive                 
discipline was followed. SENATOR PEARCE restated the question, "was            
the discipline meted out in these cases, was there a different                 
standard than has been used in the past, by the State of Alaska,               
when a person accessed records in an improper manner."  MR. GUANELI            
replied he did not believe the standard was any different. He said             
that any discipline in any instance depends on a person's past                 
record. SENATOR PEARCE commented that she thought one of these                 
people got a promotion and she did not understand that. MR. GUANELI            
replied that it was his understanding that this position became                
available at that time, people applied and the most qualified                  
person got the job.                                                            
                                                                               
Number 345                                                                     
                                                                               
SENATOR PEARCE asked if there were state employees who, as a result            
of losing their APSIN access, were no longer able to perform their             
job. MR. GUANELI replied he believed the answer to that is no, it              
may have been more cumbersome in some instances but that was part              
of the lesson. SENATOR PEARCE asked, "everyone who was disciplined             
by losing their access was fully able to do their job, under their             
job description, without access?". MR. GUANELI did not have the                
answer but said for those people working in state agencies, he is              
certain that information is available and would communicate the                
request to Commissioners Otte and Pugh. SENATOR HALFORD interjected            
that this is obviously a rhetorical question since, "the only                  
access they are supposed to have is the access necessary to do                 
their job."  He wondered about the fact that when "the feds . . .              
go after these kinds of cases, they look very specifically at union            
or anti-union activity or at political activity. It seems there was            
a conscious effort, or maybe just incompetence, to avoid gathering             
that kind of information for potential federal review." DEAN                   
GUANELI replied that even at the federal level the kind of rank                
speculation of political involvement would not suffice to motivate             
a federal investigation into some sort of union misconduct.                    
CHAIRMAN TAYLOR asked what kind of rank speculation MR. GUANELI is             
talking about.                                                                 
                                                                               
Number 286                                                                     
                                                                               
CHAIRMAN TAYLOR stated, "That's a fact, it's a fact that you gave              
us, it's a fact that you then have worked at for more than a year              
now to deny the existence of . . . What motives were you looking               
for?"  CHAIRMAN TAYLOR indicated that MR. GUANELI was concerned                
with protecting the privacy of the perpetrator, and he assured them            
he would go out and do an investigation. He was shocked that MR.               
GUANELI had redacted out those questions dealing with politics and             
unions, especially in light of SENATOR HALFORD's question. CHAIRMAN            
TAYLOR directed MR. GUANELI to answer the question. MR. GUANELI                
said the question involves what the feds do under federal statutes             
and he was not in a position to comment on this. MR. GUANELI stood             
by his statement that the level of information they have in these              
cases is not sufficient for even a federal investigation. He                   
suggested that as a prosecutor, he may need a little more                      
information before he'd be willing to pry into someone's political             
philosophy than someone who works in the Capitol. He said "that                
doesn't mean as a prosecutor . . . that we have to conduct our                 
activities based on the same level of information that activities              
are conducted in this building . . . we aren't going to do that."              
He said there is a specific  Alaska constitutional right to fair               
and just treatment in the course of investigations. MR. GUANELI                
stated he does not believe it is fair and just to conduct an                   
investigation into someone's political belief without a compelling             
reason to do so. Based on the information they had, they did not               
find a compelling reason to do this. CHAIRMAN TAYLOR asked why he              
hadn't told them that in May and MR. GUANELI indicated he had.                 
                                                                               
Number 230                                                                     
                                                                               
SENATOR HALFORD asked MR. GUANELI if he or his office had done                 
anything to discourage a federal investigation of these actions and            
MR. GUANELI replied they certainly had not, they had advised the               
federal authorities of this matter from the outset and provided                
them with any information they wanted. Additionally, they were                 
provided with a copy of MR. NORSWORTY's report.                                
                                                                               
CHAIRMAN TAYLOR asked if NCIC got involved and asked MR. GUANELI               
what he had done to find out if any of these "hits" had pierced                
through to the NCIC system. MR. GUANELI said they have informed the            
federal authorities what they had done and it was his understanding            
that they were satisfied by the process conducted by the Department            
of Public Safety. CHAIRMAN TAYLOR asked if MR. GUANELI had sent                
notification to the FBI that the APSIN system had been violated                
without being prompted to do so. MR. GUANELI replied that was his              
understanding.                                                                 
Number 200                                                                     
                                                                               
CHAIRMAN TAYLOR stated, "we talked to the FBI too, and that's not              
our understanding . . . we were told by Ron Otte that the FBI had              
told your security person that if you guys just checked it out on              
your side that'd be good enough, but, in fact, you don't have the              
ability to check the NCIC computer yourselves . . . " MR. GUANELI              
believed they had said the audit DPS was doing on the APSIN system             
was sufficient for their purposes. CHAIRMAN TAYLOR said if the                 
federal government did an audit and reviewed this stuff they could             
cut us off. MR. GUANELI said he supposed they could but he did not             
believe there was any reason to do so nor was there any indication             
that they would.                                                               
                                                                               
CHAIRMAN TAYLOR asked MR. GUANELI if he heard MS. ZABECK's                     
testimony. MR. GUANELI said he heard a portion of it. CHAIRMAN                 
TAYLOR commented that "she got canned immediately . . . in fact,               
there  was another one back before her that got canned for the same            
thing - using this system and never even giving the information to             
anyone." MR. GUANELI said he could not comment on MS. ZABECK's case            
but did say her termination was upheld by the Supreme Court and                
suggested that if there was wrongdoing they would have reversed the            
decision. MR. GUANELI said he has no idea of the facts in this                 
case, nor her background and so is in no position to comment, but              
said the testimony before the committee leaves some questions                  
unanswered about her particular case. CHAIRMAN TAYLOR commented,               
"we know that she lost her job".                                               
                                                                               
Number 151                                                                     
                                                                               
SENATOR HALFORD asked how many terminations had occurred primarily             
due to APSIN or its predecessor during the time MR. GUANELI had                
served the Department of Law. MR. GUANELI replied there had been               
some but he did not know how many. SENATOR HALFORD said it is                  
important to know if there is a consistency of treatment.                      
                                                                               
CHAIRMAN TAYLOR asked MR. GUANELI how many members of the                      
Department of Law were inquired of regarding improper APSIN use.               
MR. GUANELI replied four or five. CHAIRMAN TAYLOR asked who                    
investigated these cases and MR. GUANELI said it had been  the                 
Department of Public Safety. CHAIRMAN TAYLOR asked again and MR.               
GUANELI specified that the Department of Law had acquired the                  
information and passed it onto the Department of Public Safety.                
CHAIRMAN TAYLOR asked again and MR. GUANELI clarified that  none of            
the people from the Department of Law were among the 22 or 23 cases            
investigated by the state troopers. CHAIRMAN TAYLOR asked if these             
people had been cleared by the Department of Law. MR. GUANELI                  
replied, "The Department of Public Safety cleared them."  CHAIRMAN             
TAYLOR argued, "You investigated yourselves on that one."                      
                                                                               
CHAIRMAN TAYLOR asked who cleared DPS people, for example Trooper              
Savage. MR. GUANELI replied that the information indicated that                
Trooper Savage made a proper inquiry and he assumed Public Safety              
made that determination. MR. GUANELI said the employing agency has             
the initial responsibility to review an employee's performance.                
CHAIRMAN TAYLOR asked MR. GUANELI if he believed he or his                     
department, or any other department head, has a conflict of                    
interest when it comes to clearing their own personnel of these                
allegations. MR. GUANELI replied, "No, I believe it is incumbent               
upon the employing agency . . . to review the conduct of its                   
employees, and that's all that's happened." MR. GUANELI indicated              
the same thing happens in the legislative, judicial, and executive             
branches, as well as in the private sector. "That's the way the                
employer/employee relationship works," said MR. GUANELI.                       
                                                                               
Number 065                                                                     
                                                                               
MR. GUANELI commented that the questionable accesses to APSIN were             
investigated by the state troopers, experienced investigators who              
were instructed to look the people in the eye and make a                       
determination if the person was being truthful. MR. GUANELI noted              
there were about 15 cases of access due to curiosity around the                
time of the election when you'd expect articles about candidates in            
the paper. MR. GUANELI suggested that the state troopers, and not              
MR. NORSWORTHY, were in a position to judge the suspects demeanor              
and assess their credibility.  CHAIRMAN TAYLOR interjected, "A                 
state trooper checking on another state trooper . . . you don't see            
any conflict of interest there?" MR. GUANELI replied that was                  
correct. CHAIRMAN TAYLOR declared, "You are more naive than I am,              
sir."  MR. GUANELI asserted that over the years the state troopers             
have investigated members of their own organization. CHAIRMAN                  
TAYLOR interjected, "They have an internal affairs group . . . they            
use a lie detector, don't they? ...tell me why not one of your                 
troopers at any time used a lie detector on any of these state                 
employees?".                                                                   
                                                                               
TAPE 98-39, Side A                                                             
Number 001                                                                     
                                                                               
MR. GUANELI replied that a lie detector is rarely used in criminal             
investigations and is often unreliable. He said the troopers were              
able to judge the demeanor of the people they interviewed and did              
not find it necessary to undertake that extra step. MR. GUANELI                
read a quotation from someone who talked to the state troopers                 
about the investigation and said, "Really it boils down to  . . .              
spending a lot of state time and money and effort . . . you could              
be out catching real criminals, not people who surf the Internet or            
whatever it is they do there. And the reality is, to me, these                 
people are not going to lie and jeopardize their freedom and their             
career in the government for some political favor they were doing              
. . . that's the frustrating part for me . . .  I know most of                 
these people . . . they are ordinary honest citizens, they are not             
going to lie, when it comes down to talking to a trooper, I mean,              
you don't do that." CHAIRMAN TAYLOR asked who said that and MR.                
GUANELI identified SENATOR WARD as the person who said this to the             
lead state trooper investigator. SENATOR WARD interjected that he              
had requested Mr. Cassanovas to interview him and SENATOR WARD had             
asked Mr. Cassanovas how long it would take him to ask questions               
regarding this matter. SENATOR WARD said MR. Cassanovas replied he             
could probably do ten (people) a day, but said he was only able to             
do the fifteen or twenty assigned to him and he couldn't look at               
the other sixty. SENATOR WARD opined that MR. GUANELI had been                 
stonewalling this for a year, and asked how long it would take to              
ask 80 people five simple questions. CHAIRMAN TAYLOR commented that            
SENATOR WARD had cut off MR. GUANELI twice and he was attempting to            
allow him an opportunity to speak.                                             
                                                                               
SENATOR PEARCE asked what would be a proper reason for a Department            
of Law person to access APSIN. MR. GUANELI replied that he believed            
all the instances involving access by DOL personnel were in                    
preparation for a jury trial. It is standard procedure to review               
alist of  prospective jurors and check their background. MR.                   
GUANELI said it may surprise the legislators to know that people               
don't always recognize their names. SENATOR PEARCE asked if this               
was the reason for every access by employees of the Department of              
Law. MR. GUANELI replied that was his recollection.  He said they              
were able to determine in most of these instances that the name of             
the legislator appeared on a jury list.                                        
                                                                               
MR. GUANELI said MR. NORSWORTHY, at the end of his report,                     
concluded that he was unable to determine to a criminal or civil               
standard of proof whether or not any of the questioned accesses                
were part of a planned scheme on the part of a political                       
organization, union or other political action group. MR. GUANELI               
said this means there is no proof beyond a reasonable doubt, nor is            
there a preponderance of the evidence. Essentially, MR. NORSWORTHY             
is saying there are no reasonable grounds to believe that there was            
any planned scheme on the part of any political organization or                
union, according to MR. GUANELI. CHAIRMAN TAYLOR interjected that              
MR. GUANELI couldn't turn around and say that when his organization            
precluded people from ever asking any questions about politics or              
unions. CHAIRMAN TAYLOR stated that MR. NORSWORTHY had never seen              
any information from the administrative review, as MR. GUANELI had             
said that was confidential and had not conveyed it. MR. GUANELI                
interrupted to say that was not correct. CHAIRMAN TAYLOR continued,            
saying that Commissioner Otte and MR. GUANELI had assured the                  
committee they'd leave no stone unturned and his notes, discovered             
in the boxes of information conveyed to MR. NORSWORTHY, directly               
contradicted this. MR. GUANELI said he told CHAIRMAN TAYLOR last               
May the approach he thought was reasonable, that there had to be               
some reasonable grounds in order for the troopers "to go down that             
road"  and advised the troopers accordingly. CHAIRMAN TAYLOR argued            
that MR. GUANELI specifically redacted questions generated by the              
troopers and made them follow a specific protocol of questions. MR.            
NORSWORTHY asked CHAIRMAN TAYLOR to ask MR. GUANELI if he was                  
directed to remove these questions regarding politics or if he did             
so on his own. MR. GUANELI replied no, neither before nor after his            
testimony in May did anyone direct  him to do so. He said he felt,             
and still feels, this was appropriate advice. DEAN GUANELI said MR.            
NORSWORTHY was in fact, given information on the administrative                
inquiries. MR. NORSWORTHY chimed in to say that was true. CHAIRMAN             
TAYLOR said the committee did not have it as he had deemed it                  
confidential and not to be shared.                                             
                                                                               
Number 216                                                                     
                                                                               
SENATOR WARD asked MR. GUANELI if he had any meetings prior to May             
19th to discuss what would be asked by the troopers. MR. GUANELI               
replied that he had one conversation with Commissioner Otte on the             
telephone. SENATOR WARD asked if they discussed the exclusion of               
questions regarding political and union involvement. MR. GUANELI               
said he told Mr. Otte that he had seen the draft protocols and was             
concerned with the detailed questions regarding political                      
philosophies and, in keeping with his previous testimony, would                
advise the troopers not to ask those questions.                                
                                                                               
SENATOR ELLIS reported that he had been called by Tim Jessen, a                
Wasilla police officer involved in the APSIN case, who was very                
upset and accused the committee of forwarding his APSIN record to              
the Frontiersman newspaper in Wasilla. SENATOR ELLIS said Mr.                  
Jessen was very up-front with him and told him he had, 18 years                
ago, gotten drunk and been convicted of an assault and then later              
a DWI. Mr. Jessen also told SENATOR ELLIS he had completed alcohol             
treatment and has had no problem since and considers himself a law-            
abiding citizen. He alleged that the committee had done to him what            
they were accusing other people of doing and therefore had lost                
their credibility, according to SENATOR ELLIS. CHAIRMAN TAYLOR                 
commented that it was not Mr. Jessen's APSIN file, but a police                
report that had been reviewed by the Attorney General's office and             
was given to the committee as a document available under the                   
Freedom of Information  Act. SENATOR ELLIS said Mr. Jessen believed            
that his APSIN record was released by the committee or sent to the             
Frontiersman. SENATOR ELLIS took Mr. Jessen at his word and asked              
the Attorney General what might happen if that had occurred.                   
SENATOR ELLIS quoted the Attorney General's letter responding to               
his inquiry which stated, "the disclosure of the APSIN record and              
the disclosure of the names of the recipients of APSIN information             
clearly violates the law. While the committee may have acted with              
the advice of its special counsel, that advice was wrong. Thus                 
ironically, in the course of the investigation the committee                   
appears to have violated the very law regarding confidentiality of             
APSIN records that is the subject of it's own investigation. "                 
SENATOR ELLIS reported the Attorney General goes on to support his             
conclusion that the committee may have acted improperly. CHAIRMAN              
TAYLOR commented to SENATOR ELLIS that," we can play games with                
this Attorney General who wishes to write threatening letters to               
the committee but won't bother to do his job when it comes to                  
investigating . . . "                                                          
                                                                               
CHAIRMAN TAYLOR said the committee requested a report and never got            
one because Mr. Otte said it was still under review by the same                
assistant attorney general who was at the meeting in May when MR.              
GUANELI announced there had been no crime committed. He was then               
able to find there was no crime that had been committed. CHAIRMAN              
TAYLOR said he asked the Commissioner if the investigation had been            
completed and was told it was still under review by the Department             
of Law. He was also told a subpoena would be necessary to turn over            
other information. So, according to CHAIRMAN TAYLOR, he issued a               
subpoena at their request and then got a letter from MR. GUANELI               
saying certain documents would be confidential and, since they had             
notified the union and the union was concerned about this                      
information and might move to quash the subpoena, asked CHAIRMAN               
TAYLOR sign a letter assuring the department that no confidential              
documents would be leaked out by the committee. CHAIRMAN TAYLOR                
said his response was to ask MR. GUANELI to send only those                    
documents which he believed were available to the public. CHAIRMAN             
TAYLOR said he told them if the committee needed the confidential              
information later he would then ask for it. CHAIRMAN TAYLOR stated             
he has never asked for that additional information. CHAIRMAN TAYLOR            
asked MR. GUANELI, "did you sandbag this committee by putting                  
something in there that you now believe to be confidential? "                  
                                                                               
MR. GUANELI said he never suggested the information transmitted to             
the committee was public information. CHAIRMAN TAYLOR argued that              
he did, and he had even drafted a letter for CHAIRMAN TAYLOR on the            
treatment of confidential information and stated he would not                  
convey the confidential information until he had the letter.                   
SENATOR WARD asked if there was a copy of the letter, CHAIRMAN                 
TAYLOR replied there was and SENATOR WARD said that should clear it            
up. MR. GUANELI explained there were two classes of information,               
the first being personnel information which, by administrative                 
regulation, requires a subpoena and a written agreement of                     
confidentiality. This was the information MR. GUANELI was speaking             
of when talking about the letter of confidentiality. MR. GUANELI               
said there was also the other information from the police reports              
and the administrative audits, for which MR. GUANELI asked for  the            
subpoena  and transmitted after receiving it. At the same time MR.             
GUANELI sent MR. NORSWORTHY a letter informing him, "I should point            
out that one or more other provisions in law may make a portion of             
these records confidential and not subject to public dissemination             
or discussion. For example, some of the documents provided contain             
APSIN information made confidential by  AS 12.62.160.". MR. GUANELI            
said he specifically pointed out that some of the information in               
the boxes was confidential. CHAIRMAN TAYLOR asked how MR.                      
NORSWORTHY would know which portion of the information would know              
what was confidential; he asked if it was somehow identified or                
highlighted by MR. GUANELI. MR. GUANELI replied that he assumed MR.            
NORSWORTHY, a lawyer for 20 years hired by this committee...                   
CHAIRMAN TAYLOR interjected a question about how MR. NORSWORTHY                
would know where information had come from. MR. GUANELI replied                
that he had put MR. NORSWORTHY on notice that some of the                      
information was confidential and he did not feel he was in a                   
position to do legal work for MR. NORSWORTHY. MR. GUANELI said MR.             
NORSWORTHY could have called him at any time, but did not.                     
                                                                               
Number 360                                                                     
                                                                               
MR. NORSWORTHY agreed that MR. GUANELI had put him on notice. MR.              
NORSWORTHY said he did not release any of the subpoenaed documents             
to any member of the press; in fact, he said he never released a               
single piece of paper relating to these documents to anyone other              
than his client, CHAIRMAN TAYLOR. MR. NORSWORTHY also said he never            
advised the committee it could release specific documents.                     
                                                                               
CHAIRMAN TAYLOR then commented that the only thing released by the             
committee was MR. NORSWORTHY's report, deemed at the time to be a              
public document by MR. NORSWORTHY. CHAIRMAN TAYLOR asked SENATOR               
ELLIS if he was referring to something that was included in the                
report. SENATOR ELLIS said he just received a call from Mr. Jessen             
who had been contacted by a reporter. Mr. Jessen thought that the              
committee was doing to him what they said the Knowles                          
Administration had done to them.                                               
                                                                               
MR. NORSWORTHY said there is an attachment to the report that                  
"purports to be a printout from his (Mr. Jessen's) APSIN file that             
was located in his criminal investigation file . . . I did not                 
release a copy of my report or copies of any documents that were               
gathered from the subpoena to any member of the press or to anyone             
other than a member of the committee. What happened to it after I              
turned it over to the committee, I am totally ignorant of."                    
                                                                               
SENATOR ELLIS said he is not accusing MR. NORSWORTHY, only asking              
if the committee or staff had communicated with the media or anyone            
within the media. SENATOR WARD interjected to clarify the record,              
asking if this was the case in which a neighbor was attempting to              
take land away from Rep. Scott Ogan. MR. NORSWORTHY said that was              
an incorrect statement of the facts, but it was the same case.                 
                                                                               
SENATOR ELLIS said Mr. Jessen's point was that the committee was               
hypocritical. SENATOR WARD said this man (Mr. Jessen) was supposed             
to be a public servant and had run a name on APSIN for someone                 
without access.                                                                
                                                                               
Number 414                                                                     
                                                                               
CHAIRMAN TAYLOR said apparently now the Attorney General's office              
is going to fight to defend those people who have violated the                 
system. He said that is the tenor of the letter from the Attorney              
General, who makes serious allegations against the committee and               
"attacks the attacker." MR. GUANELI replied that the Attorney                  
General was merely responding to specific questions from SENATOR               
ELLIS and actually said he would not pursue any action.                        
                                                                               
MR. NORSWORTHY asked SENATOR ELLIS if Mr. Jessen had reported that             
any part of his APSIN file had been published in the media. SENATOR            
ELLIS said he did not know. MR. NORSWORTHY asked what evidence Mr.             
Jessen had given SENATOR ELLIS to back up this allegation.  SENATOR            
ELLIS said Mr. Jessen had told him a reporter from the Frontiersman            
had called him and said his APSIN record had been mailed to their              
paper. MR. NORSWORTHY asked if the reporter said who had mailed it.            
MR. NORSWORTHY said if there is nothing linking this information to            
the committee, there is no factual allegation of impropriety.                  
CHAIRMAN TAYLOR interjected saying, "We're not going to play that              
game any longer."                                                              
                                                                               
CHAIRMAN TAYLOR then noted that it was a reporter from that same               
paper who was the one who made the inquiry of Captain Savage to do             
a criminal background check on Mr. Chappel. MR. GUANELI said he did            
not believe that was correct, he believed that Captain Savage had              
indicated that a request had been made for a specific police                   
report. Cptain Savage did not know the number of the report, so he             
looked it up in APSIN to get the number, according to MR. GUANELI.             
CHAIRMAN TAYLOR asked why he then printed it out. MR. GUANELI                  
suggested that he printed it so he didn't have to write it down.               
CHAIRMAN TAYLOR asked who asked him to do this. MR. GUANELI said it            
was a public information request and he believed it came from                  
someone from the Frontiersman. CHAIRMAN TAYLOR asked if he could               
just call up any state trooper and ask them to look for police                 
reports on a specific subject. MR. GUANELI said CHAIRMAN TAYLOR was            
expanding on the facts; a Freedom of Information Act request was               
made for a specific police report in a specific case and the                   
trooper looked it up in the computer to save time. CHAIRMAN TAYLOR             
said he did not think that any citizen could just call up and ask              
for a police report. MR. GUANELI said the public records statutes              
in Alaska are broad and there are some circumstances in which                  
police reports in closed cases can be turned over in response for              
a specific request. MR. GUANELI said this is done from time to time            
and CHAIRMAN TAYLOR remarked yes, like MR. GUANELI did with the                
police report on Mr. Jessen to the committee. MR. GUANELI added                
that when reports are turned over to members of the public                     
confidential information is edited. MR. GUANELI said they did not              
redact the information turned over to the committee as the                     
committee had a subpoena and they honored it, adding that he had               
put MR. NORSWORTHY on notice of that at that time. MR. GUANELI                 
suggested MR. NORSWORTHY knew the Jessen report was confidential,              
MR. GUANELI thought he had given the committee that advice. MR.                
GUANELI suggested that if he had redacted all the confidential                 
information from the boxes given to the committee there would be               
all kinds of allegations about information being covered up. MR.               
GUANELI said just one word that had been redacted in one note has              
raised all sorts of problems.                                                  
                                                                               
Number 500                                                                     
SENATOR WARD asked MR. GUANELI about all the rest of the edited                
information and MR. GUANELI replied that it was confidential                   
information unrelated to APSIN. SENATOR WARD asked why it was                  
blocked out and MR. GUANELI explained that the troopers are                    
required to keep notes on everything they do during a day. He                  
restated that this information was not related to the APSIN matter.            
SENATOR WARD asked, "somewhere these notes still exist and we can              
get those right, even if we have to subpoena them or go to court or            
whatever?" SENATOR WARD asked where these notes were and MR.                   
GUANELI said the troopers have them somewhere but this material was            
not related to APSIN and therefore unresponsive to the subpoena.               
SENATOR WARD said, "in may be in the future"  and he just wanted to            
know where to get it.                                                          
                                                                               
Number 517                                                                     
                                                                               
MR. NORSWORTHY remarked that the information MR. GUANELI had just              
given the committee regarding Captain Savage and the Chappel case              
was not in the information provided to him. MR. NORSWORTHY said he             
had questioned the investigating trooper in this case (Hughes)                 
because he had concerns that there was no good explanation of Ms.              
Alsterberg's detailed memory of the incident and Captain Savage's              
recollection. MR. NORSWORTHY said Trooper Hughes had only an                   
unrecorded phone conversation with Captain Savage, not a face to               
face interview as MR. GUANELI suggested. MR. NORSWORTHY asked when             
MR. Savage had remembered that he was responding to a public                   
information request and if he had found any documentation to                   
support this. MR. GUANELI said he did not know when Captain Savage             
remembered these details, but it was before the article in the                 
Frontiersman came out. CHAIRMAN TAYLOR asked if it was after MR.               
GUANELI's report to the troopers. MR. GUANELI believed it was but              
did not know if he had found any supporting documents.                         
                                                                               
MR. NORSWORTHY suggested if there is additional information, the               
subpoena should be supplemented with those in order to dispel any              
remaining questions. CHAIRMAN TAYLOR indicated that in the joint               
hearing in May, both MR. GUANELI and Commissioner Otte assured him             
that no stone would be left unturned in this investigation and they            
understood the political overtones of these spontaneous outbreaks              
of curiosity. CHAIRMAN TAYLOR said the notes turned over later to              
the committee which said the legislators are not victims, this was             
not a crime and which instructed troopers to downplay any questions            
about unions and politics seems to be exactly the opposite of what             
MR. GUANELI assured the committee he would do and which they waited            
eight months for him to do. CHAIRMAN TAYLOR said MR. GUANELI's                 
department and DPS had extensive conversations with legislators                
about their concerns about invasions of privacy and knew full well             
what they were asking for. CHAIRMAN TAYLOR asked MR. GUANELI, "Did             
you mislead, by your comments, this Legislature last Spring?". MR.             
GUANELI replied that CHAIRMAN TAYLOR may have heard what he wanted             
to but MR. GUANELI had been clear about his concerns regarding                 
inquiries into people's political beliefs, activities and                      
philosophies. He said he has been consistent on his advice to this             
committee and to the state troopers and he stands by it.                       
                                                                               
CHAIRMAN TAYLOR asked if the Attorney General's office will, if                
this resolution passes, abide by the request of the Legislature and            
appoint a special prosecutor to do an independent investigation not            
tainted by the individual conflict of interest that seem so                    
apparent at this point. MR. GUANELI said he did not accept any                 
characterization of a conflict of interest and could not                       
specifically answer the question as it is up to the discretion of              
the Attorney General. He did say his advice would be that "there is            
no factual, no legal, no basis whatsoever to appoint a special                 
prosecutor in this case."                                                      
                                                                               
Tape 98-39, Side B                                                             
Number 001                                                                     
                                                                               
REPRESENTATIVE AL VEZEY testified, commenting that he sees a                   
serious flaw here and they should follow up this resolution with               
some legislation. He said he knows that he was investigated and                
this is a problem.                                                             
                                                                               
Number 582                                                                     
                                                                               
MR. JOHN CRAMER testified via teleconference, saying that he was               
employed by the City of Wasilla when he began to hear of                       
individuals within some law enforcement agencies looking into the              
records of certain individuals. This prompted him to ask if his                
report had been viewed and he was shocked to find that it had been             
accessed several times. When talking to his family about this his              
son asked, "Dad, what did you do wrong?" MR. CRAMER said most                  
people think to have a record with a law agency is due to some                 
wrongdoing. MR. CRAMER said he had long wanted to become a police              
officer and take the oath of "loyalty, integrity and courage." MR.             
CRAMER said as elected officials, their word is their bond. He said            
an unfortunate situation like this makes the rest of them look bad             
and this investigation was "like asking the fox to watch the                   
henhouse."  MR. CRAMER concluded, requesting the state to appoint              
a special prosecutor to conduct an unbiased investigation into                 
these cases.                                                                   
                                                                               
Number 523                                                                     
                                                                               
MR. DAVE CHAPPEL, deputy mayor and city council member of Wasilla,             
also testified via teleconference that his APSIN records had also              
been checked. MR. CHAPPEL sent a letter and spoke on the phone to              
Del Smith saying he was concerned about this and also concerned                
with Commissioner Otte's ties to the Palmer Police Department. He              
said an independent investigation was needed.                                  
                                                                               
MR. CHAPPEL was interviewed by a trooper and felt he was being                 
interviewed "simply because he had to do it." MR. CHAPPEL said the             
troopers investigated the dispatcher who pulled up his record for              
Captain Savage, who he believes was involved with the Palmer Police            
Department and the Frontiersman newspaper.                                     
                                                                               
MR. CHAPPEL said it is a scary thought that if you have a badge you            
can investigate whomever you want, whenever you want. He said our              
Constitution was violated. MR. CHAPPEL said he has much more to say            
but added "I probably need to be quiet, I think I could be a                   
target...I am worried, good luck". He concurred with the previous              
speaker about the need for a special prosecutor.                               
                                                                               
Number 469                                                                     
                                                                               
CHAIRMAN TAYLOR said MR. CHAPPEL is correct to be worried; if more             
than 80 people can have their privacy invaded without one single               
criminal sanction being brought, there is no persons life or                   
privacy that is sacred.                                                        
                                                                               
Number 464                                                                     
                                                                               
MS. SARAH PALIN, Mayor of Wasilla, said her records as well as                 
those of her husband have been accessed many times since her                   
election as Mayor 18 months ago. She said her records were accessed            
the day she was elected, three days later,  and again 20 days after            
that. MS. PALIN indicated her records were also accessed again on              
Oct. 24, the same day she asked department heads, appointed by the             
previous administration, to re-apply for their positions with the              
city. MS. PALIN said her records were also accessed during the time            
she was  interviewing a new Police Chief for Wasilla. MS. PALIN                
said her husband's records, and those of members of her staff who              
previously testified, have also been accessed numerous times for               
"curiosity". MS. PALIN  indicated that one of these accesses (to               
MR. CHAPPEL's record) was by Captain Savage at the request of Mr.              
Paul Stewart, a reporter for the Frontiersman. MS. PALIN claimed               
there was also a case number relating to DAVE CHAPPEL's family                 
noted in Captain Savage's notebook on that day. MS. PALIN asked why            
this was not investigated more fully, when "it is no secret that               
the Frontiersman, at that time, was printing anything that could be            
spun or construed as negative against the new administration".                 
                                                                               
MS. PALIN said she is frustrated that those who accessed the                   
records were given such a generous time frame to come up with                  
reasons and excuses to give to DPS. She said it is questionable if             
anyone cares about the integrity of this system, and a few                     
blatantly political uses of this system cast this all in a really              
bad light.                                                                     
                                                                               
MS. PALIN remarked that as an elected official she would work to               
protect every individual's rights. She supported the request for an            
independent investigation and wanted to be able to assure citizens             
that they are free to run for office without fear of unwarranted               
and illegal searches.                                                          
                                                                               
CHAIRMAN TAYLOR asked MS. PALIN who it was she took her complaint              
to. MS. PALIN replied originally she wrote to Kathy Mather of the              
Department of Public Safety. She said two months later, she heard              
back from Ms. Mather who told her the dates when her records and               
those of her husband had been accessed. CHAIRMAN TAYLOR stated that            
she was not provided with the names of the people that accessed her            
because they didn't want her to know who it was. If she did, she               
might be able to provide police with a motive for why these people             
accessed her. MS. PALIN agreed, saying it seemed that DPS wanted to            
protect their employees.                                                       
                                                                               
Number 369                                                                     
                                                                               
CHAIRMAN TAYLOR asked if she had requested assistance from the                 
Department of Public Safety or the state troopers. MS. PALIN said              
Ms. Mather's letter was also sent to Del Smith, who she later                  
contacted. Mr. Smith said he was looking into the matter and came              
by her office a few months ago saying things had been completed and            
everything "seemed pretty much on the up and up."                              
                                                                               
Number 350                                                                     
                                                                               
CHAIRMAN TAYLOR asked MS. PALIN if she turned this matter over to              
any other state or federal agency. MS. PALIN said she sent a letter            
to the FBI but received no response.                                           
                                                                               
CHAIRMAN TAYLOR suggested that after all these significant access              
to the records of MS. PALIN, her husband and her employees, "the               
whole thing, as far as you can tell, has been whitewashed by the               
Department of Public Safety and the Department of Law."  MS. PALIN             
said she was left with the impression the department would get back            
to her, but they did not.                                                      
                                                                               
CHAIRMAN TAYLOR asked MS. PALIN if she, her husband, MR. CRAMER or             
MR. CHAPPEL had been interviewed by anyone from the Department of              
Public Safety. MS. PALIN replied Investigator Hughes had called and            
asked them each about 15 yes or no questions. CHAIRMAN TAYLOR asked            
if she was told who accessed her records and she said no, she was              
told all along that was confidential. She did not find out who was             
involved until she read MR. NORSWORTHY's report.                               
                                                                               
Number 325                                                                     
                                                                               
SENATOR WARD said after the joint hearing last May, he thought that            
those 80 people would be questioned in about a week. He asked MS.              
PALIN if this matter has incurred a cost to the City of Wasilla.               
MS. PALIN replied that there has been a tremendous cost both                   
financially and otherwise. She said a lawsuit has been filed                   
against her as Mayor partially due to this matter.                             
                                                                               
SENATOR WARD asked if she beleieved that polygraph tests could have            
been used to avoid this whole thing. MS. PALIN said she wished it              
had been done.                                                                 
                                                                               
Number 290                                                                     
                                                                               
MR. CHAPPEL added to his testimony, saying he sent a certified                 
letter to Del Smith requesting assistance in this matter. He later             
talked with Mr. Smith, but only found out who had accessed his                 
records when the committee released itsreport.                                 
                                                                               
SENATOR ELLIS asked if CHAIRMAN TAYLOR's point is that it would                
have been appropriate for the state troopers to disclose the names             
of the accessors to the people who felt victimized. CHAIRMAN TAYLOR            
said it is impossible to do an investigation that reaches to motive            
without informing the victim who the alleged perpetrator was.                  
SENATOR ELLIS understood this point, but asked if current state law            
precluded this. CHAIRMAN TAYLOR said police officers have no                   
confidentiality during an internal investigation. He said this                 
information might not be used for a criminal investigation but,                
CHAIRMAN TAYLOR said, "You don't tell them the truth, you're not a             
cop the next day." CHAIRMAN TAYLOR said this is what happened to               
MS. ZABECK, who was fired for her curiosity. He said all the people            
in these cases have the same fact pattern yet not one of them had              
anywhere near the discipline she had. SENATOR ELLIS asked if it                
would have been improper to disclose those names. CHAIRMAN TAYLOR              
replied that civil rights relative to the disclosure of this                   
information doesn't protect a person from criminal activity.                   
SENATOR ELLIS asked if CHAIRMAN TAYLOR made a distinction that                 
disclosure should have occurred in some of these cases or if he                
thought it should have happened in all cases. CHAIRMAN TAYLOR said             
it should have occurred in all the cases in order for the trooper              
to be able to develop a motive. CHAIRMAN TAYLOR used the case of               
Adam Berg as an example, saying Representative Hodgins could have              
provided troopers with a lot of information had he known who had               
run his name.                                                                  
                                                                               
SENATOR ELLIS asked if this disclosure had occurred, if the                    
committee wouldn't be accusing the departments involved of                     
violating people's privacy rights. CHAIRMAN TAYLOR replied there               
might have been civil suits brought against those people in the                
department, though this was not successful for MS. ZABECK.                     
                                                                               
Number 210                                                                     
                                                                               
SENATOR ELLIS asked what the plan was and CHAIRMAN TAYLOR said they            
had several more witnesses but had run out of time. MR. NORSWORTHY             
chimed in and asked for a chance to respond to the criticisms made             
of his report. CHAIRMAN TAYLOR said MR. GUANELI's comments about               
MR. NORSWORTHY's report were not facts, but merely his allegations.            
                                                                               
MR. NORSWORTHY assured CHAIRMAN TAYLOR he would be brief. CHAIRMAN             
TAYLOR said he intended to hold another hearing on Monday, but gave            
MR. NORSWORTHY a few minutes to comment.                                       
                                                                               
Number 195                                                                     
                                                                               
MR. NORSWORTHY said MR. GUANELI's criticism of his legal research              
was specious. He said MR. GUANELI knows there is no legal precedent            
relative to the three statutes involved. CHAIRMAN TAYLOR                       
interjected that we all know that and that is why DEAN GUANELI did             
not cite a single statute or case behind his conclusions.                      
                                                                               
MR. NORSWORTHY argued that MR. GUANELI had used the same types of              
phrases including "argueably" that he had criticized MR. NORSWORTHY            
for. MR. NORSWORTHY said MR. GUANELI has also criticized him in the            
press because he has never been a "career prosecutor". MR.                     
NORSWORTHY reported that he was a military prosecutor for two                  
years, he has been a criminal defense attorney and has a sub-                  
emphasis in his practice of dealing with police abuse issues.                  
                                                                               
Number 134                                                                     
                                                                               
MR. NORSWORTHY said typically, new criminal statutes must be tested            
in court. He suggested that when prosecutors have a case like this,            
they do not sit around and argue it amongst themselves, they take              
it to court.                                                                   
                                                                               
MR. NORSWORTHY advised that a special prosecutor would need to look            
at why none of the cases from the Anchorage Police Department and              
the Department of Law were referred for trooper investigations. MR.            
NORSWORTHY said DEAN GUANELI suggested that all these accesses were            
relating to jury duty, but, when he was doing some follow up work              
for the committee, he found a case in which a man named Casey                  
Sullivan had his file accessed at a time when he was not eligible              
for jury duty and he had just filed as a candidate for office. MR.             
NORSWORTHY said the cases from the APD and the District Attorney's             
office have no explanation of requests, only a note from someone               
saying  they believed the access was legitimate. MR. NORSWORTHY                
said the same types of cases emanating from other departments were             
referred for criminal investigation. He said a special prosecutor              
should not only look at the original APSIN accesses, but should                
investigate if there was official misconduct or obstruction of                 
justice in the way the Departmnet of Law and the Department of                 
Public Safety handled the entire investigation.                                
                                                                               
Number 28                                                                      
                                                                               
CHAIRMAN TAYLOR thanked MR. NORSWORTHY for his testimony and                   
predicted that  the committee will pass the resolution out of the              
Senate and ask the Governor to appoint a special prosecutor, which             
the Governor will not do "because to do so will reveal some real               
slime within his own Administration", according to CHAIRMAN TAYLOR,            
who said the Legislature does not have the time, the resources or              
the investigators to do this on their own.                                     
                                                                               
TAPE 98-41, Side A                                                             
Number 001                                                                     
                                                                               
MR. NORSWORTHY said MR. GUANELI had never before today said he was             
concerned with violating the privacy of the individuals invloved.              
MR. NORSWORTHY referred to a draft memo prepared after a meeting               
around May 14th which laid out an investigative protocol that                  
included detailed questions about union and political involvement              
but did not lead to the types of questions about political                     
philosophy suggested by MR. GUANELI. CHAIRMAN TAYLOR commented that            
MR. GUANELI's statement was a red herring meant to distract the                
press.                                                                         
                                                                               
Number 25                                                                      
                                                                               
MR. NORSWORTHY continued, asking what happenned between May 14,                
1997 and May 19, 1997 to effect this dramatic change. He asked also            
why the notes taken in that meeting did not reflect MR. GUANELI's              
concern about invading people's privacy of political philosophy.               
                                                                               
MR. NORSWORTHY said in the May meeting with the committee,                     
Commissioner Otte assurred the committee that "Dennis Cassanovas is            
a bull-dog" and they would get the answers to their questions.                 
                                                                               
MR. NORSWORTHY said the committee would never have found any of                
this out without issuing a subpoena and having someone review those            
records. He found the letter to him by the Attorney Genral,                    
implying this investigation is a waste of time and money, shocking.            
                                                                               
CHAIRMAN TAYLOR concluded that every Alaskan must be in fear of                
their right to privacy. He said, "I can guarantee you there were at            
least 80 people who had their privacy invaded by state employees in            
an unauthorized, inappropriate and maybe illegal fashion, none of              
whom are risking any sort of sanction or prosecution and this                  
Administration intends to whitewash the entire thing. That's the               
reason we were here today."                                                    
                                                                               
CHAIRMAN TAYLOR thanked all the witness as well as the committee               
members, announced this matter would be continued on Monday and                
adjourned the Judiciary Committee at 5:15 p.m.                                 

Document Name Date/Time Subjects