Legislature(2009 - 2010)BELTZ 105 (TSBldg)

03/23/2010 09:00 AM Senate STATE AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 282 PERMANENT FUND DIVIDEND AMOUNT FOR 2010 TELECONFERENCED
Moved SB 282 Out of Committee
*+ SB 249 PUBLIC RECORDS/ELECTRONIC TRANSMISSIONS TELECONFERENCED
Moved SB 249 Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
         SB 249-PUBLIC RECORDS/ELECTRONIC TRANSMISSIONS                                                                     
                                                                                                                                
CHAIR MENARD announced the consideration of SB 249.                                                                             
                                                                                                                                
9:34:20 AM                                                                                                                    
SENATOR  JOHNNY  ELLIS,   sponsor  of  SB  249,   said  the  bill                                                               
strengthens  and clarifies  current law  regarding access  to and                                                               
preservation  of  public  records. Current  statutes  have  three                                                               
different definitions of a public  record which causes confusion:                                                               
one is for maintenance of  records, another for access to records                                                               
and  a third  definition  relates to  criminal  statutes. SB  249                                                               
creates a consistently  broad definition of a  public record. The                                                               
definition    explicitly   includes    electronic   transmission,                                                               
clarifies the duty of state  agencies to preserve records and the                                                               
ability of the  public to access records that are  required to be                                                               
preserved. SB 249  explains that impeding the  preservation of or                                                               
access  to public  records is  a violation  of existing  criminal                                                               
law. SB  249 amends  the executive branch  Ethics Act  to require                                                               
state  employees to  use  state email  for  state business.  This                                                               
codifies,  in  statute,  the   goal  of  Commissioner  Kreitzer's                                                               
(Department  of  Administration)  current policy.  Senator  Ellis                                                               
said he supports the Parnell  Administration's current policy and                                                               
feels enshrining it in statute is important.                                                                                    
                                                                                                                                
SB 249 limits the fees the  state can charge for access to public                                                               
records to  the actual cost  of duplication, without  an inflated                                                               
cost of  labor, putting Alaska in  line with 14 other  states. He                                                               
mentioned  news reports  of "fairly  stunning"  amounts of  money                                                               
required  of citizens  or journalists  wanting  to access  public                                                               
records.  High   fees  are   a  barrier   to  access   of  public                                                               
information.                                                                                                                    
                                                                                                                                
9:37:42 AM                                                                                                                    
SENATOR  FRENCH said  he still  saw three  definitions of  public                                                               
record in  Sections 1,3 and  7 of SB 249.  He asked if  the three                                                               
definitions have substantial differences.                                                                                       
                                                                                                                                
MAX HENSLEY, staff  to Senator Ellis, replied  that the committee                                                               
packet  contains a  side-by-side  reading of  the three  existing                                                               
definitions. SB 249 proposes that all definitions are the same.                                                                 
                                                                                                                                
SENATOR MEYER commented that constituents  often feel that public                                                               
records  should  be free  and  that  a charge  prohibits  access.                                                               
However, providing the material does  cost the state. He asked if                                                               
SB 249 is a happy medium.                                                                                                       
                                                                                                                                
9:40:24 AM                                                                                                                    
SENATOR ELLIS replied that SB  249 proposes charging for the cost                                                               
of the  duplication and  not for  the staff  time or  salaries of                                                               
state employees. Every state grapples with this issue.                                                                          
                                                                                                                                
SENATOR MEYER said  Senator Ellis has found the  balance but some                                                               
would say even the duplicating costs should not be charged.                                                                     
                                                                                                                                
CHAIR MENARD  commented about frivolous lawsuits,  copies and the                                                               
need to say  "enough is enough" and consider  what is reasonable.                                                               
She asked  if "electronic transmissions"  in the title  is overly                                                               
broad.                                                                                                                          
                                                                                                                                
SENATOR ELLIS  replied that the term  is used commonly but  he is                                                               
open to more specification.                                                                                                     
                                                                                                                                
CHAIR   MENARD   asked   if    other   states   use   "electronic                                                               
transmissions".                                                                                                                 
                                                                                                                                
SENATOR ELLIS replied he believed so.                                                                                           
                                                                                                                                
MR. HENSLEY  said SB 249 uses  "electronic transmissions" because                                                               
technology  changes.  This  language  can apply  to  any  adopted                                                               
technologies.  He noted  that every  state has  a public  records                                                               
law, many  of which  do not specify  electronic records  but have                                                               
been interpreted to include electronic records.                                                                                 
                                                                                                                                
9:43:47 AM                                                                                                                    
CHAIR MENARD asked  if SB 249 would affect all  branches of state                                                               
government and state personnel.                                                                                                 
                                                                                                                                
MR. HENSLEY replied  that SB 249 would affect  different parts of                                                               
state  government slightly  differently. The  requirement to  use                                                               
official  email for  official  business is  an  amendment to  the                                                               
executive  branch Ethics  Act. Courts  and  the Legislature  have                                                               
separate  versions. The  ability to  access public  records would                                                               
apply to  all of state  government.  The definition  of personnel                                                               
that is  used is  a public  officer, which is  a person  with the                                                               
ability  to make  a decision.  For example,  the staff  secretary                                                               
would  not  get  in  trouble  for  not  properly  maintaining  or                                                               
preserving  records;  it   would  be  the  person   who  has  the                                                               
responsibility to make a decision on behalf of the state.                                                                       
                                                                                                                                
SENATOR PASKVAN  said that the  Health Insurance  Portability and                                                               
Accountability  Act  (HIPAA)  went  to  great  lengths  to  allow                                                               
patients to have  access to records because  prohibitive fees and                                                               
charges were being  imposed. He said SB 249 puts  a cap on costs,                                                               
thereby allowing access to public records.                                                                                      
                                                                                                                                
9:46:47 AM                                                                                                                    
SENATOR  ELLIS said  he  has  tried to  be  responsive to  policy                                                               
questions  and issues  and  not  to re-plow  old  ground or  drag                                                               
personalities  in. The  current  administration has  a policy  in                                                               
place that SB 249 seeks to  make permanent. A policy that changes                                                               
from administration  to administration is not  easily understood.                                                               
The  current   administration's  policy   makes  sense   and  the                                                               
Legislature should deliberate about putting it into statute.                                                                    
                                                                                                                                
CHAIR MENARD asked if SB 249 has any pushback.                                                                                  
                                                                                                                                
SENATOR ELLIS answered no.                                                                                                      
                                                                                                                                
SENATOR  FRENCH said  Section 2  [amending  AS 39.52]  of SB  249                                                               
commands that the public records  system be used to conduct state                                                               
official  business. He  asked what  happens if  a public  officer                                                               
does not do what the statute says to do.                                                                                        
                                                                                                                                
9:49:44 AM                                                                                                                    
SENATOR  ELLIS said  Section  6 on  page 4  of  SB 249  addresses                                                               
Senator French's question.                                                                                                      
                                                                                                                                
MR.  HENSLEY  said  Section  6 [which  repeals  and  reenacts  AS                                                               
40.25.125] is a  reference to existing criminal  law which refers                                                               
to  the   destruction  or  impairment   of  public   records.  By                                                               
establishing the  electronic records  are public  records, public                                                               
officers  have a  duty to  ensure that  electronic documents  are                                                               
included in  the public records system.  Noncompliance falls into                                                               
additional criminal punishments.                                                                                                
                                                                                                                                
SENATOR FRENCH  asked what  AS 11.56.815  and 11.56.820  refer to                                                               
[as mentioned on page 4, line 19 in Section 6 of SB 249].                                                                       
                                                                                                                                
SENATOR ELLIS said he does not have that information.                                                                           
                                                                                                                                
SENATOR FRENCH asked  if Senator Ellis sees  these problems being                                                               
solved by the criminal system or the Ethics Act.                                                                                
                                                                                                                                
SENATOR ELLIS replied, "a mix of the two".                                                                                      
                                                                                                                                
9:51:48 AM                                                                                                                    
SENATOR  FRENCH  said  AS  11.56.815  is  tampering  with  public                                                               
records in  the first degree, a  class C felony. AS  11.56.820 is                                                               
tampering with  public records  in the second  degree, a  class A                                                               
misdemeanor.                                                                                                                    
                                                                                                                                
9:52:25 AM                                                                                                                    
CHAIR MENARD opened public testimony.                                                                                           
                                                                                                                                
GLENN COOK, deputy director, Division  of Libraries, Archives and                                                               
Museums,  said states  that do  not charge  for access  to public                                                               
records  raise  money to  support  archives  through filing  fees                                                               
charged  every time  a document  is filed.  Alaska does  not have                                                               
that system.  Extensive record requests could  devastate Alaska's                                                               
archive programs  due to staff  time. Skelton staffs  are already                                                               
in place; fees allow for hiring assistance.                                                                                     
                                                                                                                                
MR.  COOK  read from  SB  249  [page  2,  line 21],  amending  AS                                                               
39.52.135, "a  public officer  may not send  or cause  another to                                                               
send information  by electronic  transmission within a  system of                                                               
electronic delivery unless the system  is operated and maintained                                                               
by the  state." He asked  how that  relates to cell  phones owned                                                               
personally but partially paid for by the state.                                                                                 
                                                                                                                                
9:56:04 AM                                                                                                                    
RACHAEL   PETRO,   deputy   commissioner,   Department   of   the                                                               
Administration, said she would happy to get a full answer.                                                                      
                                                                                                                                
MR.  HENSLEY said  the email  system, not  the cell  phone, would                                                               
create the record. For example, if  your state email is linked to                                                               
your  personal  cell  phone,  it still  goes  through  the  state                                                               
maintained and operated system. The  issue would arise if using a                                                               
private email or other system.                                                                                                  
                                                                                                                                
MR. COOK said text messages  are not documented through the email                                                               
system.  He  said  the  wording   about  the  use  of  electronic                                                               
transmission  is  broad  and suggested  that  the  digital  phone                                                               
system  in  the state  office  buildings  be excluded;  otherwise                                                               
documentation of all phone conversations could be required.                                                                     
                                                                                                                                
9:58:47 AM                                                                                                                    
MS. PETRO said the meaning  of electronic transmission definition                                                               
in  statute   needs  to  be   discussed  because   everything  is                                                               
increasingly digital.                                                                                                           
                                                                                                                                
SENATOR FRENCH asked if phone  records include numbers called and                                                               
received or capturing the substance of the conversation.                                                                        
                                                                                                                                
MR. COOK replied capturing of the actual voice.                                                                                 
                                                                                                                                
SENATOR FRENCH asked if the  current phone system keeps record of                                                               
conversations.                                                                                                                  
                                                                                                                                
MR. COOK said  conversations are captured for a  brief period and                                                               
then not kept  or maintained. In the future it  could be captured                                                               
and he questioned the legal implications.                                                                                       
                                                                                                                                
SENATOR  FRENCH said  it is  news to  him that  conversations are                                                               
captured on a hard drive even  momentarily and he would like more                                                               
information.                                                                                                                    
                                                                                                                                
MS. PETRO said  the voice over internet protocol  phones in place                                                               
throughout   most  of   state  government   have  the   technical                                                               
capability to record  a data transmission. Currently  the data is                                                               
not  stored or  recorded  in any  manner.  Conversations are  not                                                               
recorded and no data is stored in that regard.                                                                                  
                                                                                                                                
10:02:18 AM                                                                                                                   
SENATOR  KOOKESH asked  Mr. Cook  if he  opposed or  supported SB
249. He  said he believe  the intent of the  SB 249 is  clear and                                                               
good. He  also questioned if  Mr. Cook's opinion is  the official                                                               
stance of his department.                                                                                                       
                                                                                                                                
MR.  COOK replied  that  SB 249  has merit  as  it codifies  some                                                               
things already being  done. He is not supportive  of dropping the                                                               
fees for  "doing searches"  if the  cost cannot  be picked  up in                                                               
some other  way. He said  he is not opposed  to SB 249  and would                                                               
love to  see free, open records  for anyone but the  money has to                                                               
come from somewhere.                                                                                                            
                                                                                                                                
SENATOR  PASKVAN asked  if Mr.  Cook has  an idea  of a  fee that                                                               
would be reasonable.                                                                                                            
                                                                                                                                
MR.  COOK said  Washington and  New Jersey  charge a  $2 fee  per                                                               
license  or anything  else that  is filed  such as  a fishing  or                                                               
marriage license.  The $2 goes  to the state archives  to provide                                                               
free access to records.                                                                                                         
                                                                                                                                
SENATOR PASKVAN  asked if Mr.  Cook was suggesting that  a person                                                               
who  wants to  research  whether  or not  someone  has a  fishing                                                               
license pays a $2 flat fee and then the cost of a copy.                                                                         
                                                                                                                                
10:05:24 AM                                                                                                                   
MR. COOK replied no. He said he  is suggesting that at the time a                                                               
person purchases  a license of any  sort, a $2 fee  is paid. That                                                               
$2  supports the  state archives  programs to  help maintain  and                                                               
provide access to public records.                                                                                               
                                                                                                                                
SENATOR  KOOKESH asked  what would  work for  Mr. Cook  if actual                                                               
costs do not work.                                                                                                              
                                                                                                                                
MR. COOK replied that if fees  are waived and the ability to bill                                                               
for extensive research  is eliminated, then the  money to operate                                                               
the archives  has to come  from somewhere else.  Eliminating fees                                                               
opens the door to more  frivolous lawsuits and requests, flooding                                                               
or shutting down a department.                                                                                                  
                                                                                                                                
10:08:14 AM                                                                                                                   
CHAIR MENARD thanked  Mr. Cook for helping the  committee to look                                                               
at  things  they may  not  have  thought  of. She  closed  public                                                               
testimony.  She  said she would like  to hold SB 249  and get the                                                               
sponsor to meet with Ms. Petro and Mr. Cook.                                                                                    
                                                                                                                                
SENATOR KOOKESH said holding SB 249 is not necessary.                                                                           
                                                                                                                                
SENATOR  MEYER   agreed  with  Senator   Kookesh.  He   said  his                                                               
constituents would  like free access  to all records but  it does                                                               
cost the state. Senator Ellis has found the right solution.                                                                     
                                                                                                                                
CHAIR MENARD responded that every chairman can change her mind.                                                                 
                                                                                                                                
10:10:12 AM                                                                                                                   
SENATOR  MEYER  moved  to  report  SB  249  from  committee  with                                                               
individual  recommendations and  attached  fiscal note(s).  There                                                               
being no objection, the motion carried.                                                                                         

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