HOUSE BILL NO. 28 "An Act restricting the release of certain records of convictions; and providing for an effective date." 2:54:18 PM Co-Chair Foster asked for a brief recap of the bill. REPRESENTATIVE STANLEY WRIGHT, SPONSOR, introduced himself. ALLAN RIORDAN-RANDALL, STAFF, REPRESENTATIVE WRIGHT, briefly described the bill. The legislation aimed to reduce barriers for individuals with low level marijuana possession charges in two parts. First, the bill would remove the information from any Department of Public Safety (DPS) background checks. Second, the bill would prevent the court system from adding any information regarding such charges onto its public website. He relayed that the court system had already removed any of the charges that fell under the category and the specific section of the bill had been removed. Co-Chair Foster asked the court system to review its fiscal note. NANCY MEADE, GENERAL COUNSEL, ALASKA COURT SYSTEM, relayed that the court system already did exactly what the bill called for in Section 4. The section was not necessary because the court had taken the action of amending its own rules about what went on the public version of CourtView. She had just received the message that the cases under the specific category had been removed earlier in the day. The court system's fiscal note was zero because the bill did not require it to do anything that had not already been done. She stated it was the court's position that since the court had already done on its own volition what Section 4 sought to accomplish, the section was unnecessary. Representative Tomaszewski asked for clarity on Ms. Mead's statements about the related actions taken by the court. Ms. Mead replied that the court passed a rule amendment that it had signed about two months back to accomplish exactly what the bill called for. The court had a rule about what did and did not appear on the public version of CourtView and had many categories. She elaborated that in February the court system had amended the rule to take more and more cases off of the public version of CourtView and had signed an order with an effective date of May 1 to remove all of the old marijuana possession cases for people over 21 with no other convictions in the case. 2:58:44 PM Representative Tomaszewski asked if there was anything stopping the court system from changing the rules back. Ms. Mead noted that she believed the supreme court order that accomplished the rule change was included in members' bill packets (supreme court order (SCO) 2001). She answered that the court could theoretically reverse itself, but it had never happened. She stated there was a zero percent chance of a reversal taking place, especially because the trend was to remove cases from CourtView and never to add cases to CourtView in recognition of some of the public concerns about what appeared there. The category addressed by the legislation pertained to cases that by definition were resolved prior to legalization in 2015 (or the offense occurred prior to legalization). She reiterated there was a zero percent chance that the court would want to republicize what happened in the old cases. She relayed that the court considered the action it had taken as a cleanup. Representative Tomaszewski asked if the court had an objection to the bill. Ms. Mead answered that the action could be done via statute; however, the court believed it was unnecessary. She elaborated that the court maintained items on CourtView according to what it thought was appropriate. She explained that CourtView was the court system's own website and case management system. There was a recognition that the public used the website for things other than managing cases. For example, people used the website to find out information about people's past convictions. The court preferred to make its own rules about what appeared on its website under a general separation of powers doctrine. However, in the past, the legislature had told the court via statute to remove a category or two of cases from CourtView. The court system had done so and there had been no objection. She relayed that the court system was not opposing the bill. 3:01:36 PM Representative Josephson thought Ms. Mead had stated there were more than 12 or so infractions, charges, or convictions that already did not show up on CourtView. He asked if his understanding was correct. Ms. Mead agreed. She elaborated that the topic addressed by the bill was the 15th subsection and category of cases removed from CourtView under the court's Administrative Rule 40A. Representative Josephson asked if the court system could get rid of CourtView altogether if it chose to do so. Ms. Mead replied affirmatively. Representative Josephson asked what Ms. Mead would have said if he had asked her five years ago whether she anticipated all of the legislative hearings on CourtView. Ms. Mead replied that she did not know what she would have said, but she did not anticipate that CourtView would become such a topic in the building. Representative Josephson stated that he was likely to support the bill. He asked for verification that if someone possessed marijuana and had significant criminal charges that were dismissed, there would be no way for the public to see the information in CourtView. He stated his understanding that charges were not sufficient and a conviction would be necessary for the conviction information to remain on CourtView. 3:03:40 PM Ms. Mead clarified that the bill and the court system's rule, which were exactly the same, removed marijuana possession convictions. They were not looking at what was originally charged or at other charges. She explained that cases that were fully dismissed were a category that the legislature had told the court system to remove from CourtView. She elaborated that any criminal case whether it was murder, drugs, or assault, that ended with a full dismissal and/or acquittal, came off of CourtView because of a statute. Representative Josephson explained that he had not been talking about marijuana convictions. He clarified that he was talking about second, third, and fourth charges. He stated his understanding that cases resulting in an acquittal or dismissal were already gone from CourtView. He asked for verification that the bill would not remove or delete more charges in that respect. Ms. Mead agreed. She confirmed that a case that ended in full dismissal, full acquittal, at a plea bargain was already removed from CourtView under the legislature's statute. She stated that the bill removed convictions. Representative Hannan remarked that the court undertook the removal of convictions once state law had changed and the crimes were no longer crimes under state law. She clarified she was speaking about low level cannabis possession convictions by people over the age of 21 that were no longer crimes as of 2015. She surmised that the court system did not merely arbitrarily look at categories of crimes and remove them from CourtView. Ms. Mead confirmed that the court recognized the conduct was legal and along with the passage of time that the value of having the information on CourtView was no longer as strong as the possible consequences of having the cases on CourtView. She stated that perhaps in 2016 or 2017 it was not as true because the conduct was more recent, but by 2023, eight years after legalization, it was the supreme court's conclusion that having the cases on CourtView was no longer a strong enough public benefit in comparison to the possible consequences. She clarified that the other categories of things that did not appear on CourtView the statute said dismissed cases were cases where the value of having the public know about them was generally outweighed by the detriment to the person whose name was on the website. One of the biggest categories was domestic violence protective orders that someone filed. She explained that they would go on CourtView, but if the court denied a short-term or long-term order and there was no probable cause, the item would not go on CourtView. She summarized that all of the other categories were ones where it could be harmful to a person and having their name on the website was not beneficial. 3:07:45 PM Representative Josephson stated there were about 2,500 attorneys in Alaska and his last practice had been family law about nine years back and related to things like restraining orders. He added that he had been in court constantly. He explained that people would pay a good amount of money to represent them zealously. One of the things that he had done was to find out nearly everything about the other party. The beauty of CourtView was the ability to find easily accessible, free information that did not require deposing someone. He had been able to go to the courthouse and pull 10 to 20 files. He stated that given the bill and previous reforms, if someone was trying to zealously represent a client, it would get more and more challenging for them to know they had the complete body of evidence on an opposing party. He stated that an attorney may want to go to the troopers to see if they had additional information or get a court order. Ms. Mead answered that under the supreme court order directing the court system to remove the cases, the cases were removed from the public version of CourtView. She remarked that an attorney could go back to what existed prior to CourtView and walk into a courthouse. She added that the 15 categories under the court's administrative rule were unpublished. She explained that the information was not on the public version of CourtView, but it was not confidential. She elaborated that a person could walk into a courthouse and go to a public kiosk to view all of CourtView with the exception of truly confidential cases. She stated that if a person cared a lot they could walk into a courthouse and use the kiosk to find out more about individuals than they could from their living room. 3:10:38 PM Co-Chair Foster asked for a review of the DPS fiscal note. LISA PURINGTON, CRIMINAL RECORDS AND IDENTIFICATION BUREAU CHIEF, DEPARTMENT OF PUBLIC SAFETY, reviewed the department's fiscal impact note, OMB Component Number 3200. She relayed that based on amendments made in the House Judiciary Committee that added a fee of up to $150 for individuals requesting that records be limited from dissemination in certain background checks under AS 12.62.160(b)(8), the department revised its fiscal note to reflect the costs that would ideally be covered by program receipts generated by fees charged. She explained that because it was unknown how many individuals would come forward to request that the records be restricted from dissemination, the department had only projected a cost out for two years. The first year cost was $180,100 for programming costs of $56,000. She elaborated that DPS maintained the state's criminal history repository, which was separate from the database managed by the court system. She expounded that the database was on a mainframe system and DPS would need to contract out the costs to have programming put in place to prevent the records from being disseminated when the department received background check requests. The additional cost in year one would be for temporary funding for one full-time criminal justice technician to research the records. Ms. Purington noted that the bill applied to up to one ounce of marijuana for individuals who were over the age of 21 at the time the offense was committed. She stated that unfortunately the state criminal history repository did not always list the age of the individual, which would require DPS to conduct research to ensure the age of offense was within the scope of the legislation. Additionally, the department would have to research the dispositions that did not always have the underlying subsections, which would clearly identify the conviction was for under one ounce of marijuana. She explained that more recent convictions would be fairly easy to do, but older convictions would take a bit of time. The second-year cost was $114,700 for the full-time position. The department anticipated the costs in years one and two to be offset and funded through program receipts generated by the individuals paying the $150 fee for the requests. Representative Stapp referenced the amendment [made to the bill in the House Judiciary Committee] charging a fee of up to $150 per request. He asked if it changed the way DPS removed the convictions and meant the department would not remove convictions until requested by individuals. He asked if it would extend the payment timeframe to perpetuity instead of removing all of the records at one time. Ms. Purington responded that the change in the fee structure would result in a fee being collected by the department. She explained that the programming would have to be done regardless to prevent the records from being disseminated as requested and outlined in the bill. The department would still need to hire a full-time position if there were more than one or two requests coming in. She reiterated her earlier testimony that some of the requests would require research, while others would be easier. Representative Stapp understood the software identification costs were fixed and would not change. He thought that in theory, once identified, the department should have the ability to remove all of the convictions meeting the criteria in a given amount of time. He believed the department would be able to sunset the position after that point. However, he reasoned that under a fee for service model, the department would need to have the position on payroll in perpetuity because the department did not know the number of years in the future that people would make the requests. He asked if his assessment was fair. 3:16:32 PM Ms. Purington responded yes, but the department anticipated the bulk of the requests to be in the first two years. She agreed that subsequent years were unknown, and the department had not been comfortable projecting farther out. Representative Stapp stated he thought the position should be a long-term non-permanent position that sunset after a couple of years. He asked if the position would continue in perpetuity. Ms. Purington answered that ideally, if the position was not addressing individuals' concerns full-time, their remaining time could be spent researching the records. She agreed that programmatically, the department could look at the existing statutes that clearly identify the people convicted of possession of under one ounce of marijuana when over the age of 21 at the time of the offense. She relayed that unfortunately some of the convictions in the system only had a four-digit offense code identifying that a conviction was for marijuana; therefore, it would need to be researched. She explained that it was not possible to universally clear out the database for all of the qualifying convictions. Representative Tomaszewski thought there was some confusion about the fee. He pointed to language on page 3, lines 5 through 6 of the bill: "pays a fee established by the agency in regulation in an amount that is not less than $150." He observed that $150 was the minimum price and there was no maximum. He asked if his understanding was accurate. Ms. Purington agreed. She relayed that the fiscal note included a baseline of $150. Representative Josephson asked if the department believed it had fiscal receipt authority or that the funds would go to the general fund. Ms. Purington answered the department believed it had the receipt authority based on its existing legislative authority to take receipts for background checks in general. The department thought the receipts that would be generated under the bill fell under the same scope. Representative Coulombe asked if there would be a $150 charge for the removal of each conviction or per person. Ms. Purington answered that the department viewed the language to mean per conviction. She elaborated that the numbers added up as the department looked at convictions. There were some individuals who would have multiple convictions that fell within the scope of the bill. Representative Coulombe stated her understanding that it would be a minimum fee of $450 if someone had three convictions they wanted to clear. Ms. Purington answered that was the way the department viewed the bill language. She relayed the department would look at the numbers to see how many individuals fell withing the scope of the bill and would then determine whether it would do it on a per individual basis rather than a per conviction basis. She agreed the fee seemed excessive for individuals with multiple convictions. Representative Coulombe stated there was a difference between CourtView and what DPS did. She detailed that CourtView was a public facing website whereas DPS would be removing convictions that would show up on a background check. Ms. Purington agreed. She explained that CourtView was the court system's records management system. The state's criminal history repository [under DPS] was the state's official record and was the central registry for all criminal convictions. She elaborated that by statute individuals often had to have a particular statutory authority for a background check for certain positions or requirements. She shared that it was called an "any person report" meaning any person was entitled to the report. She expounded that the background checks authorized under AS 12.62.160(b)(8) were already somewhat limited because they did not display non-conviction information. She noted that if a person had their charges dismissed or they were found not guilty, the information would not display on the record. Additionally, arrests that were over 12 months old without a disposition were also not displayed on the record. She remarked that it was different than the background checks authorized under other statutes. For example, the information would not be redacted when dealing with children and vulnerable adults. Representative Hannan asked if there were any other crimes or former crimes that did not show up in a person's criminal background check after paying a fee. Ms. Purington replied in the negative. Representative Hannan provided a scenario where twin brothers were convicted of the same crime on the same day and both needed background checks. She elaborated that one of the brothers paid a fee to have and appeared to have not been convicted, while the other brother did not pay the fee and his background check showed the conviction, meaning he was ineligible to apply for the State Trooper Academy. Under the scenario, one brother was eligible to enter the academy, while the other brother was not. She asked if it seemed incongruent with the systems Ms. Purington generally worked with. Ms. Purington answered that it would be different than most of the background checks processes followed by the department. 3:24:29 PM Co-Chair Foster OPENED public testimony. DAVID MORGAN, GOVERNMENT AFFAIRS ASSOCIATE, REASON FOUNDATION, ATLANTA (via teleconference), stated that eight years after legalization, many Alaskans still had criminal records for low level marijuana possession. He stated that a one size fits all approach of lifelong criminal records did not make sense, especially considering that marijuana possession was no longer considered a crime in Alaska. He elaborated that nearly 90 percent of employers nationwide conducted background checks on job applicants and research suggested that applicants with criminal convictions were 50 percent less likely to receive a callback. He stated that to the extent that low level marijuana possession conviction records acted as a barrier to employment and made it harder for people to stay on the right side of the law, the relief provided under the bill would promote public safety while saving taxpayer dollars. He thanked the committee for its time and consideration. Co-Chair Foster CLOSED public testimony. Co-Chair Foster relayed amendments to the bill were due by Wednesday at 5:00 p.m. HB 28 was HEARD and HELD in committee for further consideration. Co-Chair Foster reviewed the schedule for the following morning.