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.