JOINT SENATE-HOUSE JUDICIARY COMMITTEE May 7, 1997 1:40 p.m. SENATE MEMBERS PRESENT Senator Robin Taylor, Chair Senator Drue Pearce, Vice Chair Senator Mike Miller Senator Sean Parnell Senator Johnny Ellis HOUSE MEMBERS PRESENT Representative Joe Green, Chair Representative Con Bunde, Vice Chair Representative Jeanette James Representative Brian Porter Representative Eric Croft Representative Norm Rokeberg Representative Ethan Berkowitz COMMITTEE MEMBERS ABSENT All members present COMMITTEE CALENDAR Hearing on the Alaska Public Safety Information Network (APSIN) WITNESS REGISTER Commissioner Ron Otte Department of Public Safety P.O. Box 111200 Juneau, AK 99811-1200 Commissioner Margaret Pugh Department of Corrections 240 Main St. Suite 700 Juneau, AK 99801 Deputy Commissioner Del Smith Department of Public Safety P.O. Box 111200 Juneau, AK 99801 Diane Schenker, Criminal Justice Planner Department of Public Safety 5700 E. Tudor Rd. Anchorage, AK 99507-1225 ACTION NARRATIVE TAPE 97-35, SIDE A (THE FOLLOWING IS A VERBATIM TRANSCRIPT.) CO-CHAIR GREEN: ...together the Joint House-Senate Judiciary Committee meeting this afternoon, at 1:40. We're scheduled to go to 3:30. I hope we'll have our business finished by then. We have present from the House Representatives Porter, Berkowitz, Croft, James and myself - we do have a quorum from the House and I'll ask Senator Taylor -- and Rokeberg ... CO-CHAIR TAYLOR: Yes, thank you, Representative Green. I'll call to order the Senate Judiciary Committee and declare there is a quorum present, that being Senators Ellis, Miller, Parnell, Pearce and Chair Taylor - the entire committee. The purpose of the hearing today is to ask questions and to inquire further of the Departments of Public Safety and Corrections concerning violations of what is called the APSIN system which is the Alaska Public Safety Information Network. This system was created in the early 70s and developed by the Alaska Justice Information System to become a computerized data base of information on the criminal history of individuals. Fearful that such a system was the precursor of a big brother government information bureaucracy, legislators responded with a constitutional amendment which was handily ratified by all of the voters. The concern has continued and we have had various changes and modifications to that law, the latest being only about three years ago, when, as the result of an Ombudsman's investigation and sanctions that eventually resulted in the termination of an employee. Additional modifications were made at that time by the Legislature, which modifications were basically drafted by the Department of Law and the Department of Public Safety and the Governor's Office - with the Legislature - to make certain that violations of that type would not be occurring in the future. It is with that background that we entered an era during the last year when it was revealed because of inquiries made about strange and rumored behavior. I should say, I guess, that inquiries or abuses, violations, whatever the proper term is, of the APSIN system may very well have occurred during the last election cycle. It was then the Department of Public Safety responded and returned back a summary report of their findings. That summary report then generated a letter from the leadership back to the Department of Public Safety making inquiries about matters found within the report. The response to that letter of inquiry is the purpose of today's hearing so that the department may have - the department was afforded some time - although we must all admit it was very brief - to review and look further into this matter. And, I have asked both Commissioner Ron Otte and Commissioner Margaret Pugh to be with us today to respond to the questions that the Joint Committee members may have concerning this matter. I want all members of both the House and Senate to understand that I consider this, and I believe we all do, a very serious matter and we're all hoping that it is not serious. It will be a serious matter if, in fact, people's privacy has been invaded, and if, in fact, these matters, or these things, were done in a fashion that violates rules, regulations, or statute laws of the State. And, probably hanging over all of us is the concern that if this is done to members of the Legislature, to elected officials, what protection then does the general public have from the same types of abuses? And, I think with that very serious concern, we call ourselves together today and look forward to Commissioner Otte and Commissioner Pugh in helping us find our way through this scenario that has developed over this time. Commissioner Otte, you said to me before the meeting you had brought other members from both the Department of Law, Corrections, and your own department, and you'd mentioned if you could that we could assemble them at the end of the table. If that's how you'd like to proceed that would be fine. CO-CHAIR GREEN: While Commissioner Otte is coming forward I want to remind the body that while this is very serious, that we do intend to try to get to the bottom of what happened and perhaps go to the point of what we can do to prevent it. I don't want this to turn into a witch hunt, and that is not the intention. This is not an accusatory review. This is just an explanation and perhaps a way to cure. So, with that in mind I will want to curtail activity or questions that go askew and become accusatory. We really are looking for the answer rather than any particular thing. Representative Otte? CO-CHAIR TAYLOR: Well, before you begin, considering the serious nature of the known APSIN abuses and the potential broad scope of additional potential abuses, it is critical that the Legislature conduct these hearings under oath to prevent the potential compromise of any future prosecution, should one develop. Therefore, pursuant to Alaska Statute 25.06, I would ask the witnesses to please stand and raise your right hands and I would administer the oath. REPRESENTATIVE BERKOWITZ: Mr. Chair, before we begin ... CO-CHAIR GREEN: Representative Berkowitz? REPRESENTATIVE BERKOWITZ: I have never been in a proceeding where we've sworn witnesses. I don't see any particular reason to do so at this time. I'm concerned that if this proceeding focuses on events that are currently under criminal investigation, it will interfere with the integrity of those investigations. I'd ask members who are present here to be aware of that possibility. CO-CHAIR GREEN: I appreciate that Representative Berkowitz. CO-CHAIR TAYLOR: Thank you Representative Berkowitz, we all understand that. In fact we have often, in the past, sworn witnesses during testimony on the Senate side over the last couple years. We have had occasion where we did swear witnesses. It's an authority that the Legislature has always had and possesses. It's because of the gravity of these concerns that I think all parties would feel more comfortable if, in fact, we were in that position today. If you'll all please raise your right hand. Give me your name. Do you solemnly swear or affirm that the testimony you're about to give in this matter will be the truth, the whole truth, and nothing but the truth? Thank you. You may proceed. CO-CHAIR GREEN: Representative Otte? COMMISSIONER OTTE, DEPARTMENT OF PUBLIC SAFETY: Thank you Mr. Chairman... CO-CHAIR GREEN: Excuse me - pardon me, not Representative, Commissioner. COMMISSIONER OTTE: Thank you Mr. Chairman. For those of you here who don't know me well, please be assured that I do have the greatest respect for this body and for the process of government and I hope you all know me well enough that I certainly would always provide you with the most accurate and detailed information that I possibly could. I'd like to restate a couple of the opening remarks made by Senator Taylor because I certainly concur with what he had to say, and that is that I too, consider this a very serious matter and I also hope that it is not serious. Mr. Chairman ... C0-CHAIR GREEN: Thank you. Do you have your people here to answer questions? Do you have them with prepared statements? COMMISSIONER OTTE: Mr. Chairman, I don't think anyone here has a prepared statement necessarily, but it probably would be helpful for me, and maybe for the committee, if I started at least at the beginning and walked through to where we are today and possibly that will generate some additional questions or comments. CO-CHAIR TAYLOR: Go right ahead and thank you. COMMISSIONER OTTE: Back in probably the third week or so in January of this year the Attorney General contacted me and asked if it was possible to determine who might have made an inquiry concerning a member of this body. I assured him that my recollection was that there was an audit procedure that would identify the name of the operator, agency, and time that any inquiry was made concerning anyone. I was specifically asked if I could check to determine if there had been an inquiry made against Senator Ward prior to a September 26th or 27th newspaper article in the Anchorage Daily News. I did have the Deputy Commissioner initiate that request with the security person for APSIN and was informed that no, there had been no inquiry concerning Senator Ward prior to the September 27, 1996 newspaper article. I was also informed that this was the second time that that request had come to them as Senator Ward had personally contacted the Department of Public Safety's security person for APSIN in October of '96 and they had run that same inquiry at that time. I did report this back to the Attorney General, however the Deputy Commissioner and myself, after reporting that information, thought it appropriate to expand the initial request, and did conduct an audit after the newspaper article to see if anyone had accessed the record of Senator Ward and we found that there had been four inquiries concerning his name after the article. That concerned me a great deal in as much as these were made by Department of Corrections' personnel and I could think of no legitimate reason at that time for that to have occurred. I did provide this information to the Attorney General and told him that I was going to continue to pursue that information in the normal fashion that we would conduct an audit. We also expanded that to run an audit on a couple of other people that we thought were involved in high profile political races in the Anchorage area. And, at least in one of those instances, information came back that there had also been, what we considered to be at that time, a query concerning the name that was not appropriate. Around February 2, and with that information, the Deputy Commissioner and myself sat down with Speaker Phillips and Senate President Miller and provided them with this information we had found in the audit. We followed that up with a meeting with Senator Ward and the other individual who had been accessed inappropriately. We advised Representative Phillips and Senator Miller that we were going to continue our audit process and probably would expand to other individuals and that I wanted them to be aware of this information because it was apparent from just the rumors that had gone around that there were other people within the Legislature that were aware of some portion of this information. As we continued to expand the audit, we found either responses where an agency was unable to determine exactly why they accessed a record, or we found instances where clearly we did not feel, and the agency did not feel, that there were appropriate reasons to access the records. After a number of those had come to my attention, and the Deputy Commissioner's, we elected to simply do an audit on every member of this body to determine if anyone had accessed records inappropriately. We also included additional people involved in political races during the last campaign. I believe we conducted an audit on a total of 87 names. I would like to stress that we did not, at any time, access any other information about any member of this body or anywhere else except to determine if someone had inquired against your respective names. We continue to keep Representative Phillips and Senator Miller advised. I also did receive around the first or second week of March a request in writing from Senator Miller and Representative Phillips to in fact run all of the members of the Legislature and include them in our audit process. I received a number of individual requests from various members of both the House and Senate who had heard, I'm sure, the rumors and they also made specific requests that they be included in any audit. I assured all of those people that contacted me that they would be queried and that we were doing all members of the Legislature. In discussing this with Representative Phillips and Senator Miller I asked that we be allowed to at least complete our entire review which I explained to them would take some time, and that we not discuss this outside of the four of us until we had a chance to complete that review. There was, I think certainly, significant agreement and understanding by both Represenatative Phillips and Senator Miller that that would be, and assure, the best review and the most thorough review. Unfortunately, sometimes the best laid plans go awry and it did become publically discussed and there were inquiries from the press and certainly from a variety of legislators themselves. So, at that time we did stop and provide a snapshot of where we were in time, and I can tell you that when the briefing was provided to the Republican leadership of both the House and the Senate, and when we responded to the press, that we were approximately 30 percent complete with our review and investigation. And that's just an estimate, that's certainly not scientific, but we recognized that we were fairly early on in the process. As I said from the start, I certainly share Senator Taylor's concern. Were I not concerned and did I not think this a serious matter, we would not have very aggressively expanded the audit through our own initiative. I think anytime employees of my departments, another state department, or any municipal department, have the public trust, there is an expectation that they act accordingly and I certainly am one who intends to hold people to that standard. We are not through with our audit or investigation, however you would like to describe it, but we continue to work on it. We do have 17 inquiries presently assigned to the Alaska State Troopers for conducting additional follow-up. We have 27 inquiries that we've yet to receive satisfactory explanations from the various agencies around the State. And we have sent them a follow- up letter that says basically, provide us with documentation supporting why an employee of your department might have accessed a particular record or we will ask the Alaska State Troopers to conduct a review. We have given them until May 23rd to complete their research and response to us and I'm hopeful that most agencies will be able to produce the timed documentation that satisfies our APSIN security people that there was in fact a legitimate reason to query a record. If not, we will include those in the State Trooper follow-up. Mr. Chairman, I -- in terms of the process generally, where we started, how we got to where we are, I realize it's fairly concise but that is an explanation of where we are today. CO-CHAIR TAYLOR: I really appreciate that Ron. I want you all to realize something. I have known Commissioner Otte for some number of years and have the highest of faith in your personal integrity, sir, and I hope you're not taking any of this in any personal fashion because it certainly not intended by the Chair in this fashion and I know that other members feel as I do. We have the highest respect and regard for you. Did you have an opportunity in the last few days to review and assess some of the questions that were posed by the letter I think that was signed by President Miller and Speaker Phillips. COMMISSIONER OTTE: Mr. Chairman, yes, I've looked at the letter. I don't have a completed response yet for Senator Miller or Representative Phillips. I hope to have that to them by the close of business tomorrow and also to the Chairs of the two Judiciary Committees but I have read the questions, I have tried to couch [ph] the information that we've asked back from staff in a manner that would help answer those for you and I may not be able to answer each one to an absolute conclusion but I'll certainly do the best I can in doing that. CO-CHAIR TAYLOR: Maybe -- I'm sorry Joe, did you have questions that you wish to make? CO-CHAIR GREEN: Just the fact that you have indicated that it's going to take some time. How far along have you been able to get since this joint letter was sent to you as far as -- and I understand that there were certain numbers that were earmarked as perhaps unauthorized. Where do we stand on those? Seventeen, I believe. COMMISSIONER OTTE: Mr. Chairman, we did an audit on 87 names that include all 60 members of the Legislature. Out of the 87 names we conducted an audit concerning access. We found that there were 40 individuals where there had been some query by some agency within the State of Alaska. The first information was provided back to our querying these agencies show that in 37 cases, 37 of the accesses, there really wasn't any question that they were authorized and they were for legitimate reasons. It certainly did not indicate that anybody was the subject of a criminal investigation but they were legitimate inquiries. In now 20 cases, it was clear from the agency's response that they were absolutely unauthorized. No question about that. Some of those have been assigned to Alaska State Troopers to conduct some additional follow-up and review. There were 27 responses where the agencies told us we think these are okay, but it's going to take us an awful lot of time to do this research, could you just take our word for it basically. And we've sent back a letter saying no, don't think so, we do want you to take the time to do the research, and we do want to see what it is that caused your employee to make this inquiry. Absent that feedback we will do it ourselves with one of our Troopers. So, the end part of that process, and the 17 that we've assigned for review by the Troopers is ongoing at this time. CO-CHAIR GREEN: If that's in process do you have some feel as to how much time this might take? Initially we were talking back in January, and most recently last month -- I was just wondering if you have some idea of how long the investigation might take. One of the concerns I have, frankly, is that we will be disbanding for the summer or the interim soon and one of the concerns we have is that we don't want this kind of an issue to just kind of melt away. We do hold it quite seriously. COMMISSIONER OTTE: Mr. Chairman, I can assure you that this will not melt away as long as I've got the issue in front of me. We are going to work it through to an absolute answer for each and every member certainly of the Legislature, and the other people that, frankly, that we've audited. I intend to make sure that every member of the Legislature has a satisfactory answer before we are done. In terms of timing, the review by the Troopers I'm hopeful will not take a great length of time but we have given the agencies statewide until May 23rd to provide us with their documentation. I'm hopeful that the vast majority of the 27 where we do not have any kind of a satisfactory explanation will be taken care of and that we will not have to assign too many of that number for State Trooper follow-up. If that's the case, I'm hopeful by the end of May, or very early June, to be able to provide each one of you, and each member of this body, with an answer. CO-CHAIR TAYLOR: Commissioner, thank you very much. We'll turn it open now to questions from the panel. Representative Croft, you were first, then we'll turn to Representative Porter who started to put his hand up, I think. REPRESENTATIVE CROFT: Mr. Chairman, I just wanted to get the numbers read. You said that you looked not into the records but whether there had been inquiries into 87 people? COMMISSIONER OTTE: Yes sir. Mr. Chairman, Representative Croft, yes that is correct. REPRESENTATIVE CROFT: May I continue? CO-CHAIR TAYLOR: Sure, go right ahead, follow-up. REPRESENTATIVE CROFT: The 60 legislators, the Governor, and the 16 other candidates, is that correct? COMMISSIONER OTTE: Whatever number gets us to 87, yes sir. REPRESENTATIVE CROFT: And how many of those had inquiries made then [indisc.]. COMMISSIONER OTTE: Forty. REPRESENTATIVE CROFT: And then you looked at those inquiries the 40 people had, I assume that some had more than one? COMMISSIONER OTTE: Yes sir. REPRESENTATIVE CROFT: So that came to a total of? COMMISSIONER OTTE: Eighty four. REPRESENTATIVE CROFT: And then after your preliminary investigation you found how many to be verifiably unauthorized? COMMISSIONER OTTE: Initially, 20. REPRESENTATIVE CROFT: Because there was originally a concern that there was a political motivation, can you tell me without naming any names how many of those 20 inquiries were directed against Republicans, and how many against Democrats? COMMISSIONER OTTE: Representative Croft, I can give you a snapshot of what I know right now. I hope the committee appreciates that these numbers may change as more information comes in. Of the unauthorized inquiries to date, 11 of those inquiries are against either Republican members of the Legislature or Republican candidates. I haven't broken them out at this point. Nine of those inquiries have been against either Democrat members of the Legislature, or candidates or the Governor, who was included in that. Of the 27 pending inquiries where we still have significant concern, there are eight Republicans, ten Democrats, and I don't know how many actual number of inquiries to each one but in either present members or members of legislative races. For the small sampling of people that we did, it is a very disturbing number of unauthorized inquiries, very disturbing to me. But those are the numbers. CO-CHAIR GREEN: As a follow-up to that question, have you found -- have you had enough time to determine whether there is any kind of a thread of where the inquiries come from, either from the total or from either party? Is this completely random or ... COMMISSIONER OTTE: Mr. Chairman I know that there has been concern because I've certainly read the newspaper and I've had individual discussions with members of both the House and the Senate and I know that there is concern that some of these inquiries were politically motivated. I certainly can't sit here and look you in the eye and tell you that I know what was in the heart of the people that ran these inquiries because I don't know. But if you're asking me, based on my review of it, the Deputy Commissioner's, the Commander of our Criminal Investigation Bureau, and the Director of the Troopers, as we have discussed this, do we see some pattern that would somehow put it into that arena? Not yet. There maybe something that comes out of the interviews by the CIB unit that would change that. There may be individuals where that's the case. I don't know. But, in terms of a broad conspiracy, frankly there's nothing that I've found that supports that at this point. CO-CHAIR GREEN: A follow-up to that then. Have you found whether the inquiries of a particular person has gone to more than one of the candidates or sitting legislators? In other words, has Johnson asked several questions or are they pretty much one-on-one? COMMISSIONER OTTE: Mr. Chairman, I'm sorry. I didn't follow you on that question. CO-CHAIR GREEN: Well, the question has to do with if we haven't found a group or any political affiliation. So far, have you been able to determine that of these 27, that several of them come from one party, or at least one organization, to several different candidates or sitting legislators? COMMISSIONER OTTE: If I do understand the question correctly, and please Mr. Chairman cut me off if I didn't, and I guess if one thing that jumped out at you as you looked at this, and I certainly don't mean to pick on the Commissioner, is that there is an explicitly large number of Department of Corrections people within this mix. And I've looked at that from a variety of different views to determine why that is. Maybe when Godfrey's people get done they can give me a better explanation but there's nothing that would suggest to me that there is some conspiracy to provide this information to the public. I guess that's what has frustrated me to this point is that other than Senator Ward who made a very specific allegation based on a concern that he had, and correctly so, there has been no other information come forward where someone has shared with me that information about them has been released to the public or to another person, or used in anyway against them. So we're sort of working backwards on this but I haven't had that input from any member of the Legislature or outside of the Legislature at this point, to suggest that. If there was a conspiracy it was an incredibly poor one because I find, as an example, within Corrections, four different individuals accessing the record of Senator Ward and I would hope that if there was a conspiracy the group would be smart enough to access Senator Ward once rather than four times. So, we've discussed this, believe me, from the police perspective as many times as we can and it is speculation at this point. Mr. Chairman, I answered that as best I can given the information I've got. CO-CHAIR TAYLOR: If I could - I have three people who are signed up: Senator Parnell, Porter and then James. I had a couple questions along that line that may set a better groundwork here. Has the Department of Public Safety sent anyone to personally interview violators to determine if unauthorized accesses were requested, encouraged, or if confidential information was disclosed? COMMISSIONER OTTE: In 17 cases we have, yes Senator. CO-CHAIR TAYLOR: And I think you talked about a unit you called CID. What does that mean? COMMISSIONER OTTE: Our Criminal Investigation Bureau in Anchorage. CO-CHAIR TAYLOR: Are they now going out and doing these interviews with these people? COMMISSIONER OTTE: Yes sir. CO-CHAIR TAYLOR: And are these people that may have violated this provision, at least regulation if nothing else, are they being placed under oath to determine if these activities occurred and whether or not there is some sanction? COMMISSIONER OTTE: Mr. Chairman, no. I don't believe that a police officer, from my experience, has ever placed anybody under oath or even has the ability to do that in conducting a criminal investigation. CO-CHAIR TAYLOR: Have you checked phone logs or phone records? COMMISSIONER OTTE: Mr. Chairman, the Alaska State Troopers have some of the most talented investigators that I've ever been associated with and I know that the Captain and the Colonel have sat down and tailored each individual inquiry to what would be the most appropriate course of action to take in terms of questions, documents, and other information. But, in terms of do I know exactly what that is, frankly, no, I haven't wanted to know at this point. If I did I would probably be very reluctant to discuss it publically because we're probably going to thwart them in their tracks if there is a complete public disclosure of exactly what and how they're going to go about their investigation. CO-CHAIR TAYLOR: The only reason, Commissioner, for those questions, is that we had understood from previous discussions with you that there had not been personal interviews done and actually the process had been one of a paper audit. I think, in fact, the word "audit" was one you had used. We have now been moved from that audit stage? COMMISSIONER OTTE: In all of my discussions with Senator Miller and Representative Phillips we have shared with them that we would start this process as we would any other audit inquiry. We require the agencies to do their internal research and to provide us with the documented information that would support that this was a legitimate inquiry. If they could not do that, or if they got some admission, we would evaluate that and take whatever action we felt was appropriate from that point on. I didn't elaborate a great deal with either Senator Miller or Representative Phillips. Beyond that, I simply asked them to give us an opportunity to work this as we would normally and that we would provide them with a complete accounting once we were done. Absent some probable cause showing that a crime has been committed out there, and we have none of that in any of these cases, the investigators are proceeding into these inquiries in a slightly different manner than they would if somebody had committed a crime. The more public discussion we have, frankly, the more difficult in some of those cases it's going to be for the investigators to conduct interviews and get the kinds of either admissions or statements that might help support or, in some cases, sustain the current finding or support a criminal charge. CO-CHAIR TAYLOR: I wanted to get to my other members here and I just -- that preliminary background was very important and I appreciate that but also I believe Del, you brought with you today some forms that are used in the process of training and examining APSIN users? COMMISSIONER OTTE: No sir, I did not. I have received your letter and that will be part of our package perhaps, but there also is some concern with those forms being what was responded from the field. Disclosing those at this time may, in fact, also create problems in what those people originally said if they were to become public documents. CO-CHAIR TAYLOR: Well, I don't know that there is necessarily a need to have their name reflected. I think we were just looking for the format that was used for the original audit, the paper audit, where forms were sent out and people were asked if they had done various things. We wanted to see what that document actually said. COMMISSIONER OTTE: Mr. Chairman, if I could, certainly there is no intent to keep that information from the committee but again I think what you want is a complete answer to the ones that there's even the slightest question about and having that information on those forms become publically discussed and viewed is going to hamper the State Trooper's ability to conduct those follow-up queries. We would like to complete those investigations and interviews before those documents are provided unless, Mr. Chairman, were you looking for the blank ones or the ones that were completed? CO-CHAIR TAYLOR: I just wanted to see one of the blank ones really so that we might be able to see what the question was that was asked. I assume that the answers may very well be confidential or might lead to disclosure of someone and that you would have a duty under law to keep that confidential. I was looking for a blank form. I realize it says now completed by employees and we would like to have that also but, if you feel that would somehow compromise your investigation at this point, just having a copy of the blank form I think would be of information benefit to all of the committee members. Let's turn to Senator Parnell. SENATOR PARNELL: Mr. Chairman, when did you first become aware that agency officials may have accessed the criminal justice information system in the broadest sense, the computerized records, on legislators or candidates during your tenure as Commissioner? COMMISSIONER OTTE: Mr. Chairman, Senator Parnell, probably January of this year when we expanded the initial request made by Senator Ward and did, in fact, look at who might have accessed information about him after the newspaper article. SENATOR PARNELL: So, prior to January you did not know of any other employee who accessed, in an inappropriate fashion, computer records of legislators or candidates? COMMISSIONER OTTE: Not that I recall, no sir. SENATOR PARNELL: In your tenure as Commissioner has anybody ever been disciplined in your department for inappropriately accessing computer records? COMMISSIONER OTTE: I can tell you that the State Troopers have just recently completed a criminal investigation of a member of Public Safety who is in a civilian staff position concerning unauthorized access to computer information. That case has been submitted to the District Attorney's Office. I'm not certain if there's been any final determination on that case at this time. I know just from general discussions with the Colonel that over the years there have been incidents that have come to the attention of the Department where other employees have made an inappropriate access and have been disciplined, yes sir. SENATOR PARNELL: And then you said that -- I believe you said and correct me if I'm wrong, that in January you talked with the Attorney General about this problem that you've discussed. Was that your first meeting that you had on the issue? COMMISSIONER OTTE: Mr. Chairman, Senator Parnell, yes it is. SENATOR PARNELL: And what were you directed to do or what did you do following that meeting with respect to investigating the potential problem here? COMMISSIONER OTTE: Contacted the Deputy Commissioner and asked him if he would initiate an inquiry, an audit inquiry, to see if Senator Ward's name had been accessed by anyone prior to a news article of September 27, 1996. As I recall it was, I believe, the first course of action. SENATOR PARNELL: And then what happened after that that lead to the audit form being drafted by your Department? COMMISSIONER OTTE: The information that we initially examined showed no access. SENATOR PARNELL: Following that date that you'd put on it, you mean? COMMISSIONER OTTE: Right. The Deputy Commissioner and I both felt like it would be appropriate to see if anyone had accessed information after the article. We determined that they had. If your question is at what point did we expand the form to include the follow-up questions ... SENATOR PARNELL: I'm just trying to get a sense for the chronology of your investigation because you've basically been informed by the Attorney General that there could be a problem here. You contacted Deputy Commissioner Smith about it. At some point you put together a form to audit an agency. I presume that's whatever agency you found to have accessed -- you know, their employees to have accessed records. I want to get to that place in the story where you have turned the audit form over to a particular department. How did you get from A to B? CO-CHAIR TAYLOR: If I may interrupt, Senator Parnell. It is difficult for those of us -- I know you've had a longer involvement with this situation than some of us have because you were also accessed, but ... [Tape 97-35, Side A ends midspeech] TAPE 97-35, SIDE B CO-CHAIR TAYLOR: [Tape 97-35, Side B begins midspeech] ... date or a time on it so that it -- I mean had a conversation or did something approximately when -- when did this start, when did it -- that's the chronology I think you're looking for. Without some kind of time frame it's tough for us to tell what we're talking about. SENATOR PARNELL: He's indicated he's talked to the Attorney General in January and at some point they drafted an audit form so I'm trying to get you to give us a chronology of when did you first contact Commissioner Pugh? What happened -- I mean tell us the scope. What happened with the investigation down the trail -- what shape it took. COMMISSIONER OTTE: Mr. Chairman, Senator Parnell, so that you know, I'm not the one in Public Safety that conducts the audit and I requested that the wheels be put in motion. In terms of how those were put in motion and when and how did the forms go out, I'll certainly let the Deputy Commissioner answer that because he spoke directly with our security person in Anchorage. CO-CHAIR TAYLOR: Go ahead Del. DEPUTY COMMISSIONER SMITH, DEPARTMENT OF PUBLIC SAFETY: Thank you Mr. Chairman. Senator Parnell we did not create the initial form. There is one form that is a standard inquiry from the Control Terminal Officer, the APSIN control person, security officer, to the agencies. We do those on a fairly regular basis. Why did you run this person? Please provide an explanation. It goes on to say if it is for an authorized purpose - fine - and you can justify that and if it's an unauthorized purpose, you know, the employee could be cutoff, the agency could be cutoff. That form existed all along as part of the APSIN audit process. The additional form that asks, I think, about seven specific questions -- I can't remember the exact date, but there was some concern that was the person -- anybody present in the room? Did they give it to anybody else? Those specific questions should be asked. We sent those back out to the agencies and wanted those asked, and signed, for utilization downstream at any follow-up investigation, which there will be. SENATOR PARNELL: So you turned the form over to the agency itself? You didn't go sit down with the person and ask the questions on the audit form? DEPUTY COMMISSIONER SMITH: Exactly. It's part of the audit process. Now that we have these audits coming back in, and when they cannot justify, if they cannot, on the 27 that the Commissioner was discussing and the 17 that have been sent out for criminal investigation, we will send a Trooper in the 17, and perhaps some of the 27, to say I want to ask you these questions again. You signed here and you answered yes or no. Is that still your answer, yes or no, because you've not been able to come up with any justification for what you did. So, that was part of an audit process. As the Commissioner mentioned earlier, we're backing into this sort of, because we do not have, except for Senator Ward's initial allegation, any allegation that a crime has been committed. We conducted the audits and now we're working backwards to establish if a crime was committed. Our initial conversation with the Commissioner regarding Senator Ward occurred the last week or so of January and as I think he indicated in his testimony we were speaking to the Speaker and the President of the Senate about the 3rd or so of February. In between that I was in touch with the CTO and conducted -- initiated those audits and had her reporting to me. Thank you sir. SENATOR PARNELL: Two or three more questions and I'll turn it over quickly. Senator Taylor asked a question which you said that you've asked the Troopers to begin with field interviews on, I believe, the 20 unauthorized accesses. Is that correct or is it on the other batch? DEPUTY COMMISSIONER SMITH: Some of the other batch, but some of the 20 and -- some of both. SENATOR PARNELL: And when did you order that to be done or when did you start? When did you issue the order to go out and do this in the field? DEPUTY COMMISSIONER SMITH: Through the Chair, Senator Parnell, the discussions with the Colonel and the Captain occurred late last week and the documents have been -- all of our material to provide them with the backup they needed to start conducting investigations was sent up to them early this week. SENATOR PARNELL: And to follow-up on a question after Representative Croft -- of the 20 unauthorized accesses, I believe those were not 20 individuals who were accessed, but they were unauthorized accesses on a smaller pool of individuals. Is that correct? DEPUTY COMMISSIONER SMITH: That is correct, yes sir. SENATOR PARNELL: How big is that pool of individuals? COMMISSIONER OTTE: A total of nine individuals, Senator Parnell. SENATOR PARNELL: Of those nine, how many are Republicans and how many are Democrats? COMMISSIONER OTTE: Six Republicans, three Democrats. SENATOR PARNELL: Thank you. CO-CHAIR TAYLOR: Go right ahead. Representative Porter... REPRESENTATIVE PORTER: Thank you Mr. Chairman. First, Mr. Chairman, let me say I appreciate your putting on the record your confidence in the integrity of the Commissioner. I share that position and I guess I should put on the record that both the Commissioner and the Deputy Commissioner and I worked together at the Anchorage Police Department for over 20 years and, as a matter of fact, the person sitting to the left, Diane Schenker, worked in my office. So, I have a relationship, but I've known the other Commissioner for quite awhile too, so I guess I have a personal involvement with all of them. The thing I think that should be recognized in terms of putting this inquiry in perspective is -- well, I won't go into detail on the development of the privacy amendment and these regulations but it's an interesting story, if anyone's interested afterwards. The information that was inquired upon in all of these cases was the criminal history background of individual members of the Legislature, or candidates to the Legislature. That is improper without some authorized reason because of the regulations of the APSIN system. The information, the criminal history information about us, is not private. It is available to anyone who wishes to inquire at a courthouse. I think it should not go unrecognized that we are sitting here today making this inquiry because Commissioner Otte told us that improper inquiries had been made. The system itself has got some really good points and one that will present itself as a problem to these inquiries. The good points, obviously, are that every inquiry is recorded and we will be able to know every time an individual was accessed for whatever reason. The problem in going back on a year -- two, three year old inquiries is that oftentimes a particular terminal operator will not remember why they got a response on a particular name. There's also a situation where an individual, one of us, would not think that an inquiry was made legitimately but it could have been. If one of our names appeared on someone's Board list, that for example, the Board wanted to apply for a gaming permit, our names might have been submitted along with the other officials or board members or whatever of this non-profit or whatever it was. We wouldn't have known that our name was submitted but that name would have been checked because that is a requirement of getting a gaming permit. Oftentimes officers in the field are required to try to find witnesses or suspects, as you might expect, and they don't have complete information so they will make an inquiry into the system on an individual name. Bill Smith - that's all this person knows, but they do know that he's from Palmer and he's 19 years old and he's Caucasian. So they run Bill Smith's and they find a 54 year old Bill Smith from Sitka. They don't know that that's a legislator, but they know that it's not the one they're looking for because they're looking for a 19 year old person. That could have been the access that has come up and they're trying to now trace down to figure out why was this accessed. I just -- total perspective of what we can do and what we can't do and I thought that was appropriate to put out. CO-CHAIR TAYLOR: Representative Porter thank you. I think you've raised some other questions but I turned back when you made the comment -- I turned back to some materials that we'd been -- I had here about the question of whether or not this is public information. I mean we've heard that statement made both in the press and around the halls that well, this is public information. Anybody that goes to the right courthouse can check it out. So I guess I need to inquire of the Commissioner -- I'm informed, Commissioner, that within APSIN, are details about suspects and witnesses in ongoing police investigations. Unauthorized access could therefore compromise ongoing police investigations and put Public Safety officers' lives at risk. Details about a person's driving record - - how many points a person has on his or her driving record -- prior interactions of a person with police: example whether someone is prone to violence or displayed aggression -- juvenile information, suspect priors, and concealed carry information and whether someone has to get an SR 22 on their insurance policy. None of that is public information and it is my understanding that information or types -- information of that type is carried on APSIN. Is that correct? COMMISSIONER OTTE: Mr. Chairman, all of that is correct. CO-CHAIR TAYLOR: That's certainly not public information, is it? COMMISSIONER OTTE: I never suggested it was ... REPRESENTATIVE PORTER: Mr. Chairman if I may -- I mentioned criminal history information not all of this other stuff. CO-CHAIR TAYLOR: But you see criminal history investigation is not available at a courthouse. If some police officer's been investigating a case and checking somebody out, that's not available at any courthouse but it is available in APSIN. I think that's why there is a concern about the invasion of privacy. If we were just talking about criminal records that somebody could go to a courthouse and pick up -- of course, you'd have to go to every courthouse in the State, wouldn't you? And you'd have to research an awful lot of paper and that's why God invented computers. We can zip through things now quicker. I just wanted to make that point. I think there is a subtle difference. Is, in fact, there different levels of access allowed to different employees? As an example, can some people, say at the Department of Public Safety, who have been working drivers' licenses, can they only get into driving records stuff and then other folks that are doing criminal investigations maybe could get into like a gun permit background information that might even require you to go not only through APSIN but to use APSIN as a window and to go into some of the federal computers, like NCIC or some of those? Are there different levels like that? COMMISSIONER OTTE: Mr. Chairman,there are and you're sort of bordering on the breaking point of my technical knowledge of APSIN but I do have Diane Schenker who can speak very well to that, but essentially you are correct, yes sir. CO-CHAIR TAYLOR: I don't want to suggest that Representative Porter is not also correct about the details of a, say a, criminal conviction. If you call that up, you get it on APSIN but you could also go to the courthouse and get that one. I believe that's the point that Representative Porter was trying to make. I wasn't trying to demean that issue. REPRESENTATIVE PORTER: That was the original impetus for the inquiry was a criminal history background. CO-CHAIR TAYLOR: Right. Did you have further comments? COMMISSIONER OTTE: No, Mr. Chairman, but if you'd like ... CO-CHAIR TAYLOR: Yes, Diane, go right ahead. MS. DIANE SCHENKER, CRIMINAL JUSTICE PLANNER, DEPARTMENT OF PUBLIC SAFETY: Mr. Chairman, yes, people are assigned different levels of access in APSIN, depending on their job duties. They may be restricted to just DMV records or -- and do not have any access to criminal history records. Criminal investigation records would be for police investigators, not for a clerical position that didn't have any investigatory job duties. CO-CHAIR TAYLOR: As an example we heard that the Governor had also been investigated, so to speak. Do you know at what level the person had authorization on those because it was my understanding that someone had done that for training purposes and that they were doing it with a person that only had authorization to go to a certain level, and to mix those two apples and oranges seemed a bit strange. COMMISSIONER OTTE: Mr. Chairman, I think most of the people, although I don't know any of them by name, but I believe most of the people were generally classified employees within a variety of departments and agencies, both local and state, and at least one federal and I think they were all making basically the same kinds of inquiries, whether it was the Governor or members of the Legislature or political candidates that might be running for office. Certainly there were one or two exceptions to that but for the most part it was a fairly broad sweep. You did mention sort of case management information and maybe I could ask Diane Schenker to expand a little bit on that. It might be helpful for the committee to have an understanding of that. CO-CHAIR TAYLOR: Go right ahead. MS. SCHENKER: You want to know about the -- the criminal case investigations? Access to that part of APSIN or ... COMMISSIONER OTTE: State Trooper cases and reports, and that kind of stuff. MS. SCHENKER: Yes, access to that part of APSIN isn't as broad as access to basic person and access to criminal history isn't as broad as basic person and driving records but I believe most of the checks involve criminal history records, not investigative -- not criminal investigation records and there's much less access to that type of record. When a person is cleared to have APSIN access they have to fill out a security clearance form and that's where we do the background checks on them, fingerprinting. They have to agree to sign an agreement to abide by the APSIN rules. At that time, as part of submitting that form, their supervisor or their person in their agency that is responsible for APSIN security has to recommend on a very specific list every single individual function that they would need to have access to in APSIN based on their job duties and that's in our files and that's how we, through automated programs, control where they can go in APSIN. CO-CHAIR TAYLOR: In fact, Diane, don't they kind of start off at sort of a low level as far as authority is concerned, depending on what they need for their job and then they kind of move up through steps of security clearance, so to speak, to get to different levels of computer access. As an example, the federal system -- don't you have to type in something when you access that system, either a case number or something that indicates what your justification is for entry into that federal system? I don't know how these computers work so... MS. SCHENKER: There's a purpose code when you make inquiries into the [indisc.- coughing] information system. It's a very broad code, a criminal justice purpose would be an example of a purpose. CO-CHAIR TAYLOR: Curiousity wouldn't be? MS. SCHENKER: No. Criminal justice purpose as contrasted to say to firearm checks, the broad categories but as far as the individual APSIN user goes, they might be -- their application might be to authorize them for what you described as a higher level of accessing, including NCIC or more records, even early on if that's what their job duties involve. They don't normally work their way up to higher levels of access just because they've been using it for awhile. They have to take the test and training in what they need and get access to that, and it should only change normally if their job duties change and they would have to submit a new clearance form. Their agency would have to submit it explaining why they need access to more or less than they did in their other position. CO-CHAIR GREEN: Given the fact that there is this progressive degree of clearance and accessibility, do you know, of the ones that were improper, how many of those were beyond that information that is public knowledge and into this area that maybe certainly requires an additional degree of screening and confidentiality? Any of you? COMMISSIONER OTTE: Mr. Chairman, what we're talking about here is criminal history accesses, for the most part on all of the 87 people that we're looking at -- when they were accessed. The employees who did that, or persons who did that, had a clearance to go to criminal histories. They were not exceeding their authority to do so because they had a user ID which allowed access to that particular portion of APSIN to deal with criminal history convictions, or criminal histories pending a conviction if it's a fairly new arrest. And I don't know that I've totally answered your question but I believe I have sir. CO-CHAIR GREEN: Well, the concern I have is that we found that there are some -- there's an access level that you can get information conveniently that's open information. Now there's another level of information that requires additional security clearance, as I understand it, and how many of the ones we're talking about are this higher level? Are they all that level? COMMISSIONER OTTE: Let me take at least a stab based on personal experience over the years. A police dispatcher, as an example, would have access to any and all information because she or he would be providing that as support to officers in the field for investigators in follow-up in criminal investigations. A police officer in the field, on the other hand, probably would not have access to certainly any NCIC information but would have access to the criminal history information within the State of Alaska. It has more to do with what your responsibilities are, not necessarily how much you're paid or how long you've been there and I don't know whether that gets you to what you're talking about or not. CO-CHAIR GREEN: Well, I hope it does because if my wife were to call in and ask for some information can she go through an operator who has a high degree of clearance and get information that's improper? Is there a screen or a prevention mechanism that prevents the off-the- street guy from coming in for whatever reason? COMMISSIONER OTTE: Well I -- Mr. Chairman, I think that's really at the heart of what we're talking about here and if I understand your question, all the security clearances, all of the signed agreements, all of the change that Senator Taylor was talking to in terms of 12.62 law, the rewrite of the regulations, those are not going to prevent an employee who decides to heck with the rules. All of these employees are working for criminal justice agencies, they do have a public trust, they have signed an agreement, they have taken a test, they have passed a background examination, but there is still the human element within all of that. Heretofore, Public Safety has looked to the agencies out there to decide what should be done and I guess to some degree that's still going to be the case except that I'm prepared to let an agency deal the first time with their employee although I intend to take some action myself. The second time that employee violates their agreement with us, they're out of our system -- period. I don't care what the agency does to them but they're out of our system. So, Mr. Chairman, if that gets back to your question ... CO-CHAIR TAYLOR: ... apparently because of time constraints Commissioner Pugh has other obligations and she has volunteered to stick around for just a moment if we can interrupt you there, at that point there Commissioner. Thank you very much and stay right by. Joe, you had a question? CO-CHAIR GREEN: Yes. Margaret, we have heard in the prior testimony that the majority of these 17 or 20 were actually in the Department of Corrections rather than Safety. Were you made aware of who, from your department, made the inquiries? COMMISSIONER MARGARET PUGH, DEPARTMENT OF CORRECTIONS: Mr. Chairman, yes. Senator - I've just promoted him to Senator. Commissioner Otte did indeed share with me that there had been breaches. I do not believe that he shared by name and I think that I turned that over to someone within my department to work with the Deputy Commissioner, as Commissioner Otte indicated that he had turned his over to the Deputy Commissioner, so I don't believe I got the names initially. CO-CHAIR GREEN: Did you by chance get the fact that maybe one or more of your employees asked about more than one or several of -- and in fact was that the case or were they independent one-on-one questions to some particular legislator or candidate or did say, perhaps, did some of your people ask about several candidates? Do you know that? COMMISSIONER PUGH: I believe it's the latter, sir, that several of the folks accessed more than one name. CO-CHAIR GREEN: Okay, thank you. CO-CHAIR TAYLOR: What steps, Commissioner, did you take to investigate when you were alerted by Commissioner Otte, and if you could tell us approximately when that was? COMMISSIONER PUGH: I'm sorry but I do not know when it was but having heard Commissioner Otte's testimony I would imagine that it was fairly immediately upon learning that there were personnel from the Department of Corrections involved in his audit. CO-CHAIR TAYLOR: This would have been last fall or -- just ball park is all I'm looking for. COMMISSIONER PUGH: Oh no, this would have been in January. CO-CHAIR TAYLOR: Oh, in January, okay, I just wanted to put a time frame on it. Go right ahead. And what did you do to then investigate because you were the one who -- the investigation of your corrections personnel? COMMISSIONER PUGH: I asked the Department, the Division of Institutions Director Frank Sauser and Deputy Director Allen Cooper, to cooperate fully with Deputy Commissioner Del Smith in any and all investigations and to keep me informed in taking appropriate actions and I believe that that is what occurred. There was contact between the two agencies. We cooperated fully throughout and as the names were received the individuals were contacted and went through the audit process, filling out the audit forms, returning those to the Department of Public Safety. We have subsequently completed our inquiries into each of the individual cases and have, in fact, taken action in each one of those cases. We have also since, verbally and in writing, [indisc.] to remind them of the obligations to adhere to the security of the APSIN system regulations. We have informed our training academy which is taking place right this minute that they are to stress, more than may have been done, so it is covered in every academy. We have asked them to stress with this beginning academy and we stand ready to cooperate with the Department of Public Safety in any manner because although I do have to leave, I do appreciate the opportunity to share with this committee that I concur with Commissioner Otte's sentiment. I believe this is a very serious matter and I, too, hope that there is nothing beyond that. CO-CHAIR TAYLOR: Commissioner, I want to thank you very much. I do have concerns -- I know many other questions are coming up on the table -- that we do have an opportunity to speak with you again about this and I hope to do so before we leave Juneau but if that's not possible then maybe during the interim. I think part of the concern is what actions have been taken and as the Commissioner's investigation continues on, if indeed additional action needs to be taken, I think that one of the concerns that was raised to me by a member -- I'm just going ahead rather than pulling on people, is that without knowing the depth of investigation that we're now into, without having that background or that information, were you able to conclude at some point in time that no laws or regulations had been violated because we were informed, I think, -- Senator Ward was from a letter by Commissioner Otte, that no law had been broken, or at least no criminal law was being investigated at that point in time and I was surprised at that because it appeared as though the investigation was far from over. I don't know that. Maybe it was over, you see? COMMISSIONER PUGH: Senator Taylor, I understand -- if I understand your question, let me just say that I believe that there was enough evidence that the entries into the system were unauthorized to allow us to take action under the personnel system collective bargaining unit agreement. If, in fact, any Department employees are involved in an ongoing criminal investigation I don't believe any action that we've taken will interfere with that. CO-CHAIR TAYLOR: I guess that's what I was getting at. Maybe what we need to do is maybe to talk to the people who actually "conducted the investigation." Did they conduct an investigation utilizing this form that Del was telling us about -- by sending a form to the employees? COMMISSIONER PUGH: Yes they did, sir. CO-CHAIR TAYLOR: So they never went and personally interviewed them? COMMISSIONER PUGH: Pardon me? CO-CHAIR TAYLOR: Your people never went and personally interviewed your ...? COMMISSIONER PUGH: I'm sorry, sir. Thank you for clarifying that because no, certainly the people were personally interviewed but forms were completed as required by the Department of Public Safety and certainly no personnel action would ever be taken without interviewing the person in question. CO-CHAIR TAYLOR: Could you just tell us is that, how it happened? Did you send the folks in to personally interview or did you send them the audit form and then when the audit forms came back go personally interview the ones that didn't maybe fill it out quite right? COMMISSIONER PUGH: I'm sorry. I wasn't the one conducting ... CO-CHAIR TAYLOR: ... I realize that ... COMMISSIONER PUGH: ... either the paper or the personal interviews. I would guess that they were done simultaneously. CO-CHAIR GREEN: You indicated there has been corrective measures taken. Are those corrective measures a broad brush or do you know the names of the people and have taken corrective measures to those individuals? COMMISSIONER PUGH: At this point, sir, Mr. Chairman, I do know the names of the individuals. CO-CHAIR TAYLOR: Senator Parnell, real quick, she's got to go. SENATOR PARNELL: By taking action I presume you mean some kind of disciplinary measure? COMMISSIONER PUGH: Yes sir. SENATOR PARNELL: Have any of those individuals that you're aware of been promoted or received salary increases in their positions in the last month or so? COMMISSIONER PUGH: I was indeed made aware, Senator Parnell -- and I am going to have to leave now but ... SENATOR PARNELL: I hope you can come back and talk to us about ... COMMISSIONER PUGH: I will come back and appreciate the opportunity to discuss that with the committee. CO-CHAIR TAYLOR: The answer to his question was? COMMISSIONER PUGH: I am aware that one person has, in fact, been -- received a promotion. CO-CHAIR TAYLOR: One of these people that we were talking about? COMMISSIONER PUGH: Yes sir. CO-CHAIR TAYLOR: Okay. I'm sorry. Commissioner I really appreciate your sticking around for as long as you did and I want to thank you very much for your candor and I appreciate your patience with this committee. COMMISSIONER PUGH: [Indisc.] and Ms. Schenker knows more than us. I probably can [indisc.] into any investigatory file. I don't think they do and none of the audit findings were violations involving anything but criminal history records. CO-CHAIR TAYLOR: [Indisc.] Joe you go ahead but we've got to get to Representative ... CO-CHAIR GREEN: ...but it's on that point that you said they don't, but what they have by not having access themselves because of the nature of their occupation would they be able to get a higher clearance through Safety? COMMISSIONER OTTE: Mr. Chairman, I don't know that I'm the best person to answer that but based on my discussions with the security technical people involved in this, security clearances are based on your job duties and if they don't have access now then I think it's because they're not entitled to that access. CO-CHAIR TAYLOR: Next person up was Representative James, then Rokeberg and Croft and Parnell. REPRESENTATIVE JEANETTE JAMES: Thank you, Mr. Chairman. Commissioner Otte, my concern on this whole issue was more systemic than specific. I wasn't one of the people who have been questioned. I might feel differently if I had been. In your telling the way this thing happened, you indicated that Senator Ward had [indisc. - coughing] into his record prior to the newspaper article in September last year and you indicated that that hadn't and then you indicated the other actions that went on and you checked another time frame and then you found something and then you decided to open up the whole picture. My question is, if Senator Ward hadn't asked that question, would we be doing what we're doing or is there any other people who are knowledgeable about this that might have triggered the same investigation? I'll tell you exactly why my question is here is when I was hearing this talking about what's available in these records and what people could find out and everyone is extremely concerned about privacy, I'm sitting here kind of scared not thinking there's anything on my record but there might be something I don't even know about and so my concern is, is there a possibility, that in the past, unbeknownst to you, that these things have been doing and [indisc.] you should check it out. COMMISSIONER OTTE: Mr. Chairman, Representative James, the answer to your question -- to the last part of your question is it certainly could very well have happened in the past and there's no way that I, or anybody else, would know about that. If Senator Ward had not made his inquiry, would I have been thinking about expanding an audit on legislative candidates? Well, I could sit here and tell you yes but in all truthfulness probably no, I would not have thought to do that. The Department is required to be more aggressive as part of the new 12.62 statutes and regulations and to provide audit results to a committee and that was, is, in the process of gearing up. Hopefully somebody would have been astute enough to include a sampling of legislators in that, people involved in high profile races or positions and I would hope that that would have been a part of the audit process so maybe it would have come to light. Certainly it will be a part of any process in the future but I can only speculate at this point. CO-CHAIR TAYLOR: Representative James, is that it? REPRESENTATIVE JAMES: That's it. CO-CHAIR TAYLOR: Thank you for your patience Representative, too. I appreciate it. Representative Rokeberg was next. REPRESENTATIVE ROKEBERG: Thank you, Mr. Chairman. My first question will be directed to Commissioner Otte. In your discussions with the investigators of the CID unit, did you look at -- and this goes back to the pattern or trend -- did you look at any geographic nexuses there because something is very peculiar. It has come to my attention that there was a candidate, not a sitting member of either body here, who lives in the Southcentral area of the State and he was hit on by the Juneau Police Department. That is a very peculiar and strange situation. Have you taken that into account? COMMISSIONER OTTE: Mr. Chairman, Representative Rokeberg, you are correct. That is a very unusual situation. There's not an acceptable answer. That is one of those cases that we've assigned to the State Troopers to do some follow-up on. That's an immediate flag to us. You are correct, yes sir. REPRESENTATIVE ROKEBERG: Chairman, if I might? Perhaps Deputy Commissioner Smith could be better able to answer this. I'm concerned about understanding the chronology of this whole situation, particularly following up on what Senator Parnell brought forward and is there anything in this voluminous amount of documentation that sets forward the exact chronology of -- apparently starting from the February point to the May 23rd date, there's approximately 109, 110 days there and I'm - - apparently when the inquiry forms went out, was that the early part of February? DEPUTY COMMISSIONER SMITH: Through the Chair, Representative Rokeberg, we started sending them out and then we kept adding people to the audit. Initially we checked Senator Ward and then we expanded it beyond that and each time, several days perhaps had gone by, we directed the CTO, the Control Terminal Officer in Anchorage, who through me that I want these run. I'm probably not a very popular person over there currently but I keep saying no we want to expand it and so they've been going out incrementally. The departments then had generally 30 days to respond to the Control Terminal Officer. They came back in. We looked at some of the responses and said these are not acceptable -- they've got to go back out again. So that's been an ongoing process since early February. Yes sir. REPRESENTATIVE ROKEBERG: So the agency investigations were triggered by those forms concurrent with those that would vary, depending on when you sent out those forms? DEPUTY COMMISSIONER SMITH: Yes sir. REPRESENTATIVE ROKEBERG: The agencies were given approximately 30 days to respond? DEPUTY COMMISSIONER SMITH: I believe the form says the standard 30 days to get back to us, to the CTO, and explain what the situation was. REPRESENTATIVE ROKEBERG: Okay, when did you come up with the short list, or around the 20 I believe it is, or the 17? DEPUTY COMMISSIONER SMITH: There are 17 that are currently assigned to the State Troopers. It's been within the past couple of weeks that we looked at some of these where they said curiousity would have been the reason. We're not satisfied that that's totally candid. REPRESENTATIVE ROKEBERG: Is that about the time that they issued a letter to the President and the Speaker and provided the hit list? I think it's dated April 21st. Is that correct? Is that around about that time? DEPUTY COMMISSIONER SMITH: I don't recall directly. I mean, we were assigning some cases. There were some that were suspicious to us as you referred to the Juneau person checking on the Southeast. There were some other patterns that sort of looked odd to me and we've targeted those for investigation. REPRESENTATIVE ROKEBERG: When did the CID start formally investigating potential criminal charges? DEPUTY COMMISSIONER SMITH: Those had been sent up, as I said earlier, the packages to them earlier this week to start -- these are the ones we want you to go on. REPRESENTATIVE ROKEBERG: So it's taken all this time to recognize that there may be potential criminal activity going on? DEPUTY COMMISSIONER SMITH: I think what's taken all the time, Representative Rokeberg, we have two people in Anchorage, a control terminal officer and her security officer who have been spending an inordinate amount of time trying to deal with this while dealing with the other responsibilities that they have: getting this back, collating the information, reporting back to me. We're trying to sort out and get these back out to the field and respond to requests so I apologize for the length of time it's taken but there's been no dilly-dallying on our part in trying to respond to these and trying to resolve them. REPRESENTATIVE ROKEBERG: Perhaps, Commissioner, a final question, the May 23rd date, where did that date come from? Is that an agreement between the legislative leadership and yourself or is it a date that you selected as a target deadline. COMMISSIONER OTTE: Mr. Chairman, Representative Rokeberg, the Deputy Commissioner did contact all of the agencies where we had responses that simply did not provide us with the documentation for us to say yes, this inquiry was fine or no it's not. Many of them said, you know, what you're asking is so voluminous and time consuming that it really is a difficult process for us. Anchorage had the bulk of these. I think the Deputy Commissioner, in consultation with some of those individuals, and with the staff in Anchorage, gave them till May 23rd to get that information back to us. CO-CHAIR TAYLOR: So this is self imposed? DEPUTY COMMISSIONER SMITH: Yes sir. REPRESENTATIVE ROKEBERG: By the CID as I take it or ...? DEPUTY COMMISSIONER SMITH: I established that date as the Commissioner indicated. I did speak to the Chief, as he pointed out. I said I need this information. They said it's time consuming, we're doing other things. I said I need the information, I will give you until the 23rd. I followed it up with a letter that says the 23rd. I arbitrarily and to some degree, capriciously, picked that date, trying to be reasonable with the people that we're dealing with but also putting a time certain on it. CO-CHAIR TAYLOR: Del, worse case scenario because I realize these time frames are arbitrary -- it's a good target and I hope you can have it resolved by then. I don't think anybody would criticize you for doing that -- worse case scenario: if in fact there is any basis, and let me preface this -- during the last campaign we saw ads running in the campaign, the most famous one I remember is the gang that couldn't shoot straight ad, which indicated a whole series of candidates and all that was really listed was criminal backgrounds under them. I've never seen that before in the 20, 30 some years I've followed politics in Alaska. I was immediately suspicious when I saw that. How in the world could somebody go around the State and check enough courtrooms, checking back 12,13, 20 years and come up with all of this? That would take a tremendous amount of leg work, unless you used a computer. That doesn't take hardly any time at all. So, if worse-case scenario does come out, that you find that there was a significant involvement between certain labor unions, private investigators which we know -- we were told publically by one of the labor unions they'd hired one to check out our backgrounds. If, in fact, you do find that that was ongoing, that people were sharing some information, now we're talking serious offenses, aren't we? COMMISSIONER OTTE: Yes sir we are. CO-CHAIR TAYLOR: And but for the status of the investigation at this point, we still don't know, do we, whether or not we're really looking at something that ominous or whether we're just looking at some banal curiousity on the part of some employee? COMMISSIONER OTTE: Mr. Chairman, as I've said a couple of times, there is no allegation that has been brought to us. One of the things that we, as you know, asked each member of this body to do when they got a letter from us, is to respond to us if there is anything about an inquiry to them, or any information they have that would be of concern or something that should be shared with us, and we have heard back from some members of this body and we are following up on specific requests. But, there is no probable cause showing that a crime is committed or an allegation that anybody has committed one. We are as aggressive as I can direct the Troopers to be in following up on questionable access but I have no information yet that a crime was committed. CO-CHAIR TAYLOR: I guess what I was inquiring about is, as you're looking at this issue from the perspective of security to the system and who may have used, or misused, the system, are you not also looking what maybe the parallel involvement of other forces out there? I mean otherwise how are you ever going to find it if all we're going to talk to are the people at the computers, and then accept their statement that oh no, they never shared it with anybody. I mean ... COMMISSIONER OTTE: Mr. Chairman... CO-CHAIR TAYLOR: ... as an example, if I knew that my -- if I knew the names, as an example, of three or four people who maybe doing some activity in my community, I might know who they're related to. I might know... [Tape 97-36, Side B ends midspeech] TAPE 97-36, SIDE A CO-CHAIR TAYLOR: [Tape 97-37, Side A begins midspeech] ...find out that these people are all part of the same union? Some of them may be closer or not closer to political activity within the union or political activity on their own. I don't know necessarily that your criminal investigation folks would know that. And if they are only going to focus on the narrow perspective of whether or not these people entered into these computers, I don't know that we will ever have the other question answered, and I think that question is the only serious concern that I think you and I have. It's serious enough if somebody messes with the computer when they are not supposed to, but if they do it just for curiosity, don't share it with it anybody, maybe it's not that big of an offense. But, if instead, they call somebody up and two days later a major newspaper smear campaign ad starts in the middle of an election, or two days later somebody sitting in this Legislature on a crucial vote gets a phone call that says "You either vote the right way or else we are going to reveal the following" those phone logs would, I think, be real important, and I would think the associations of those people who have violated would be very important to know about or we never know for sure, do we, that this stuff was communicated. COMMISSIONER OTTE: Mr. Chairman, I certainly share your concern and frustration with what could be a variety of possibilities out there. If I didn't have some of those same thoughts and concerns, we probably would not have initiated this audit in the first place... CO-CHAIR TAYLOR: I know you do, and I appreciate that. COMMISSIONER OTTE: You know, all I can tell you is that the Alaska State Troopers are an outstanding investigative organization. They've investigated issues and crimes certainly more complex and difficult than these kinds of issues, so I have all the confidence in the world that they will do a thorough and complete review for us. I don't know how many of you have ever met Dennis Casanovas, but he is the most tenacious CIB commander I've ever seen. He will not let go of this until he provides us with the answers to these questions. I guess what I would ask again is the same thing that I asked of Representative Phillips and Senator Miller initially is please give the troopers an opportunity for us to work through this. I realize it is taking more time than you or I would like; there's nothing I would have liked more than to have a complete package answer for you before you left here. I was not able to do that, but I can assure you that you will get a full accounting of whatever we determine. CO-CHAIR TAYLOR: I want to give you that opportunity, too, Commissioner, because I'm looking forward to that. I'm hoping that we're going to find out and you're going to be able to put this thing to bed for all of us, and that's why it's not our intention to adjourn this committee. We're only going to recess, where that's going to give you an opportunity to come back and present that so that we all have an opportunity in the same spotlight and specter to clear this issue one way or another. CO-CHAIR TAYLOR: Representative Porter, you had a comment? REPRESENTATIVE PORTER: The only that I would add to that, Mr. Chairman, is that each member of the Legislature who was subject of one of these inquiries has been notified of the basic where and when and those kinds of facts. If any member of the Legislature who has been inquired upon has any of the suspicions that you are offering, they most definitely should tell the commissioner what they are so that that information can be added to the investigation as to any significance in the where or the time that that inquiry was made. If they were the subject of some kind of a phone call or smear campaign and there was a relationship in that time, most certainly the commissioner should know that. CO-CHAIR TAYLOR: I didn't want to target anybody so I made reference only to that one rather generic ad. It specifically named several different people, and I can't imagine not looking at this situation and not also looking into the background of that ad -- who placed it, where it came from, who paid for it, etc. -- to find out if there is any inner connection between those people and the people doing the access violation. I guess my concern also is that there is a vague area here between what may be a personnel code violation or a regulation violation for which people get sanctioned. And then we have, because of another unfortunate circumstance very similar to this, a person was terminated, just a few years ago, from their employment, which is a very severe sanction. And it's hard for those of us not knowing what went on to gauge why are some people being suspended and other people back then were terminated, so that's confusing. And how can there be a statement that no laws were violated when the investigation hasn't been completed, so I guess that one is still holding in abeyance a bit. But Alaska Statute 56.850, official misconduct, doesn't even require that there be communication of this information, to injure or deprive another person of benefit. Well, I think the right of privacy is one of the most precious benefits that any Alaskan has, so it would seem to us that there may be some criminal activity, and if, in fact, there is, I think we need to have clarification on that. I think also the committee is very concerned about differentiations in sanctions that were imposed. We see one person in your print sheet gets a letter of reprimand, 90 days suspension, and another person gets 30 days. Yeah, and one person gets a promotion. So it's difficult to understand that, and I hope that will be part of the report. Senator Pearce is not here; she wanted me to ask one specific question. In the report that you made, you indicated that a common punishment was that these people would be suspended from using their APSIN privileges. In other words, they couldn't access the computer that they had mis-accessed, I guess, for a period of 30 days or up to 90 days. And her question was if it is part of these peoples' jobs, how did they work. I mean, were they punished by being told "Come to work and we'll pay you your full pay check, but you can't work today because of your restriction on the computer?" Could you, or maybe Diane could explain how that works. COMMISSIONER OTTE: Mr. Chairman, let me take a shot at that, and I'm not going to be able to give you a complete answer because I don't know what the Department of Corrections, or Seward, or Juneau, or any of these other employers did in terms of their own particular discipline. I can relate to you an experience I had as the chief in Palmer where I determined that an employee who worked for me had made an improper inquiry, and it had to do with a personal relationship. I brought that information to the state, did my own review, and I suspended -- and it was a fairly egregious number of inquiries -- and I suspended that individual for a significant period of time. The state told me that they were also going to suspend that individual's access to the APSIN system for an additional 30 days, and I simply tacked that on to my suspension, because without access that employee was of no benefit to me. CO-CHAIR TAYLOR: But you suspended without pay? COMMISSIONER OTTE: Correct. CO-CHAIR TAYLOR: Can you tell us, Diane, what you did with the corrections personnel, because we've been informed, as an example, we're aware, -- at least one of our members is -- of one probation officer who inappropriately inquired on APSIN and that probation officer was prevented from using her APSIN computer, or his, whatever it was, for the next 30 or 60 days. So that employee goes to work and he just turns all of his files over to his supervisor and says "I can't run the computer, you're going to have to do it." I mean, that kind of punishment is hard for us to understand. Were these people punished with being suspended without pay, or did we just take away their work for the day? COMMISSIONER OTTE: Mr. Chairman, if I could. Diane -- we stole her from corrections and she works for Public Safety now, so I doubt that she has a clue. In response to your query, I can't make any sense of that for you because I don't know all the answers. You are correct. For some employees simply suspending their APSIN access is a fairly meaningless penalty on the part of the agency. In other cases, if I were to do that, which I intend to do from this point on -- I'm not going to give an agency the option --if I find that somebody has done something that is short of a crime but a violation of their agreement with us, I am going to suspend them the first time and terminate them completely from our system the second time. I understand that in some cases that's also meaningless, but for many people and most people who need access as part of their job, it is going to result in probably their suspension without pay for that period of time, or, if it happens again, I doubt they are going to be employed. CO-CHAIR TAYLOR: Well, obviously you're not the right people to be asking this question. I'm sorry about that. It was just something that seemed rather anomalous to us and we tried to figure out how that worked. I guess the further concern is if, in fact, these people truly did what they are being sanctioned for, it appears as though that is a violation of a criminal statute. They did deprive every person that they went after of that benefit of privacy, and I'm not sure how we get around those. COMMISSIONER OTTE: Mr. Chairman, I'm not an attorney and I have to rely on the Department of Law's experience and historical perspective from these kinds of violations. If it is or was determined to be a crime, it certainly would be forwarded to the district attorney. Dean Guaneli is here, and I think that he's probably had this discussion many times with many different commissioners about this very topic. DEAN GUANELI, CHIEF ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW: Well, Mr. Chairman, I'm not prepared to discuss the facts of any particular case, but let me just say with respect to that particular statute, the official misconduct statute that you mentioned, to violate that statute requires specific intent to deprive someone of a benefit. I think... CO-CHAIR TAYLOR: But wouldn't that occur if you called up my name or yours on the computer and you intended to do so? MR. GUANELI: Well, I think that -- I'm not certain if the definition of "benefit" includes the right to privacy under the constitution, but even if it did, there is a more specific criminal statute that covers misuse of confidential information. And when there are two statutes, one that covers conduct fairly generally, and another that covers it much more specifically, the courts will look to the one that addresses it more specifically. And with respect to the misuse of confidential information statute, it r equires that the information be used in some way. That's the point, I think, of some of these further follow-up inquiries by the troopers: to determine whether information was disseminated outside of the agency, to determine whether the person actually made some use of it other than simply browsing through the system, other than simply to satisfy that person's own curiosity. And I think that's really the focus of the further inquiries at this point and if we're focusing on any particular statute, if we're focusing on the specific one that covers the conduct. CO-CHAIR TAYLOR: I realize that. We're running very short of time. Senator Parnell had a question and Co-Chairman Green had a comment. CO-CHAIR GREEN: It's on this issue and it's brief. If the intent was, as the senator mentioned, to have a political ad that talks about, certainly indicates the quality of the person, wouldn't that satisfy this intent portion that you're talking about? And the follow-up to that is anytime you're for just random knowledge wanting to talk about a specific legislator, doesn't that put it in a different frame than just saying I'm going to talk to the legislator or write him a letter? I mean, I'm going to access APSIN to find out about this guy just from general curiosity. Do you think the court would go with that saying "Oh yeah, no intent there." MR. GUANELI: Mr. Chairman, let me just say that if there's an indication that political use was made of some of this information, I would think that that would be enough to satisfy certainly the misuse of the confidential information statute. But as Commissioner Otte has said, there's really no indication yet that that's so. We really don't have any factual basis to believe that that's true. And I really think when we start seeking State Trooper investigation into a political ad, where we might be asking the State Troopers to go to a political party or go to someone who paid for a political ad and start inquiring into their motivation and that sort of thing, I think that it becomes a very delicate situation, and I think we need to approach that carefully and with some good factual basis for doing that. And so I think the troopers have to tread cautiously when we start getting into that kind of arena. But let me just say that the federal officials have had a lot of trouble prosecuting, criminally, people who have accessed federal computer systems simply for curiosity. There was recently a case that was decided by a federal court of appeals just a couple of months ago where an IRS agent actually accessed IRS records of people that he knew and people he was dealing with. It was prosecuted under federal statutes and the court of appeals threw that out basically saying, you know, "Lets not make this a federal offense. This person didn't use the information, simply accessed it for his own curiosity." So, I mean it's not an easy situation that we're dealing with and that's why the troopers are following up on these questionable cases. CO-CHAIR GREEN: My question wasn't accusatory. It was just informational. MR. GUANELI: Certainly. CO-CHAIR TAYLOR: I find your comments fascinating, Dean, when what we're looking for here is confidential information used for personal gain or in a manner not connected with the performance of official duties. I don't think you can call up on that computer, violate the official duties that give you the authority to call up on the computer and then request the information and not be in violation of this law. Now, I realize that to make a better case you want to find some use of it, but if you're going to walk timidly in asking people about campaign ads that specifically state criminal background in them, and we're looking at violations of criminal background inquiry, I hope the same attitude isn't taken when it comes to rape or something else, because we shouldn't be in a position here of having to write a letter to tell somebody what to go investigate. This should just be done automatically when you see the parallels that have been drawn here. And I think that's occurring now. I think we're now at a point where significant resources are being applied, and I think it is a serious matter, but certainly you're not suggesting that Ron in any way should modify the investigation that his people are doing solely because there may have been a political ad run, are you? MR. GUANELI: I'm suggesting that it's an area into 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 risks, and I don't think that we can simply go there based on speculation or on rumor. I think there has to be some logical connection in order for that leak to be made. But let me also point out that with respect to that statute, it does require a use of that information. There is no definition for what the use is in statute, and so the courts will look to a dictionary definition, and it's really to utilize something, to put it to some purpose, and that's the problem with that statute as applied to mere curiosity searches. As a prosecutor proving something beyond a reasonable doubt, you have to meet all those elements, and we face practical problems under that. CO-CHAIR TAYLOR: Senator Parnell. SENATOR PARNELL: Early on you said that there were 20 cases -- I think you said that there was no question that these were unauthorized accesses -- 20 unauthorized accesses involving 11 legislators; nine Republicans and three Democrats were accessed. Were any of the three Democrats who were accessed in this unauthorized fashion members of last year's or this year's Republican-led majority? COMMISSIONER OTTE: Mr. Chairman, Senator Parnell. I don't know that I have the answer to that at this time, and the total of nine includes people both in and outside of the Legislature at this point. In terms of the exact names... SENATOR PARNELL: I'm not asking for names. I just want to know if any of the three Democrats who were accessed are in or were in a Republican- led majority. COMMISSIONER OTTE: I don't have that information at this time, Senator. SENATOR PARNELL: Don't know or you just... COMMISSIONER OTTE: I don't know. SENATOR PARNELL: Okay, thank you. CO-CHAIR TAYLOR: Mr. Croft, you've been very patient. Thank you. REPRESENTATIVE CROFT: Mr. Chairman, well, I'm not a police officer, but I was concerned about all of the other types of information that might be accessed through the system. But then in looking at the APSIN security audit, all of them are "CH" or "WW", and the vast majority are "CH". That's criminal history? COMMISSIONER OTTE: Yes. REPRESENTATIVE CROFT: And that's public information? COMMISSIONER OTTE: It's not public information in our system. We consider that a confidential source. Criminal history information, arrest information about Ron Otte, is going to be available if I've been arrested at some courthouse some place. So to that degree, I can't hide my criminal past, but if you're asking so if it's public can I go to APSIN and get it, that answer is unequivocally no. REPRESENTATIVE CROFT: Can I go to some place else and get it? COMMISSIONER OTTE: Possibly. REPRESENTATIVE CROFT: What does "WW" mean? COMMISSIONER OTTE: Warrant check. REPRESENTATIVE CROFT: That's where there is a warrant out for that person? COMMISSIONER OTTE: Correct. REPRESENTATIVE CROFT: Is that publicly available? COMMISSIONER OTTE: I believe you could obtain that information at a courthouse, yes sir. CO-CHAIR TAYLOR: Let me just follow up on Mr. Croft's question. I think it's a very important one. The difficulty though, and I think the two of you may have been saying different things. Representative Croft was saying isn't this public and you were kind of saying some of it's public, and it's a way to get to the public information, yes. In fact, if you're driving down the street, Commissioner, and a State Trooper comes up behind you, seizes your car and wants to pull you over, and you're driving your own personal car, and he calls in on dispatch and says give me wants and warrants and criminal history information on the registered owner of this car. They type in the number of your license plate, that brings in your registration, they type in the name, and that's who should be driving this car. Part of the information that officer is going to get is whether or not you've had any prior contact with the police, and whether you have been prone to violence or displays of aggression. That's APSIN, isn't it? COMMISSIONER OTTE: Yes sir. CO-CHAIR TAYLOR: You don't get that at any courthouse. That doesn't come from 7-Eleven. So I think there's a tremendous amount of information within that system that may be very, very confidential stuff that only should be seen maybe by other police officers, stuff that maybe should only -- I mean, I guess my concern is I just have to wonder what would happen, and I believe we have instances -- the last time someone got terminated for this they called up APSIN to find out what was happening with a relationship that they had ongoing, and used if for their own purposes to find out apparently where the person lived, who they were associated with. A lot of personal, private information is contained in there that certainly isn't at any court-house. And it's that concern that I think that worries us as to what use it may have been put, to what use it may be put in the future, to what use might other citizens out there find themselves in the same dilemma. I know you share those concerns with me because we've discussed them, Commissioner, and that's why I'm so very pleased to hear you have CID actively involved in this because I think we all have a lot of faith in that department. REPRESENTATIVE BERKOWITZ: The information that's publicly available through the court- house would include criminal history, in which case you could go into the case file and even if you chose to, you could listen to the transcripts of any of the proceedings? COMMISSIONER OTTE: Although I've never done that, that is my understanding. REPRESENTATIVE BERKOWITZ: And in that way you could -- if someone had been through a divorce, you could learn what their assets were, you could find out if an inquiry had been made in a trial or in other proceedings -- you could find out intimate details that way as well. CO-CHAIR TAYLOR: I don't think divorce was a good example, Representative. I believe that's a closed probate file. I don't think you have public access to either probate or divorce files or juveniles. REPRESENTATIVE BERKOWITZ: Well I believe the juvenile situation has changed somewhat. CO-CHAIR GREEN: You have records of only instate activity, or do you actually have information for other states for somebody who has moved in? COMMISSIONER OTTE: Well, Mr. Chairman, APSIN compiles information submitted by Alaskan law enforcement about Alaska residents or visitors, or whoever might be within the state. Some terminal operators such as police dispatchers do have authorization, once into APSIN, to query the FBI's NCIC system. SENATOR PARNELL: Our U.S. Supreme Court makes a clear difference between records that you can get from a courthouse and records that are contained in a computerized data base, and I think Senator Taylor has expressed that. There's a case, United States v. Reporters' Committee for Freedom of the Press, in which the court said that while you can get this from other places, plainly there's a vast difference between the public records that might be found after a diligent search of courthouse files, county archives and local police stations throughout the country in a computerized summary located in a single clearing house of information. I mean, there are definite privacy interests here regardless of whether that information is available from 40 other sources, and I don't want us to minimize the privacy interests that we're discussing. CO-CHAIR TAYLOR: Representative James. REPRESENTATIVE JAMES: Senator Parnell just said exactly what I was going to say. CO-CHAIR TAYLOR: We have run very, very long this afternoon. I really thank each of you for your tremendous patience and your candid and honest responses to the questions. I think it's a great comfort to all of us to hear the sincere concern you have, and we appreciate your efforts very much, Commissioner, Deputy Commissioner, and Diane, it's very nice to have you here too, and Dean Guaneli. We're not intending to adjourn the committee, we will recess. If you will notify the two co-chairs, either one of us, it doesn't matter -- we're kind of a one-stop shop here -- as to when you would like to have the next meeting so that we can... I'm assuming it's going to be during the interim when things are going to be a little busy around here. When you feel like you're ready to report back and you feel like you've concluded your investigation, I believe we would like to have the opportunity and give you the opportunity to provide that information to the committee. COMMISSIONER OTTE: Mr. Chairman, I would be happy to do that. I will try to get you a written response to the requests that were submitted through both the House and Senate leadership and some of your specific questions to you, hopefully by the close of business tomorrow. I will notify both you and Representative Green when we are concluded with the investigation so that we can provide that information to you. CO-CHAIR TAYLOR: Thank you very much. We're there any other questions or concerns by committee members? Representative Porter. REPRESENTATIVE PORTER: The only caveat to that that I would place is that I believe each individual member of the Legislature has been advised that they are now dealing with a one-on-one with the department, and to the extent that an individual legislator would like to leave it that way, that information will not be provided to the entire committee. COMMISSIONER OTTE: I've been asked specifically by both Senator Miller and Representative Phillips to certainly keep all of the names of individuals in both the House and Senate confidential. I guess when I said provide you with information, I'm talking about summary information. CO-CHAIR TAYLOR: You've kept that information confidential to this point, and I think we all appreciate that. There are indications on the record that people might be able to determine who an individual was by geographic location and party designation, but, no, I would assume that you are going to continue in that fashion. However, if, in fact, the committee believes that they need to inquire further, then I think it would be up to the committee to make the decision about whether to go into an executive session for that purpose, and the laws do provide that opportunity also. DEPUTY COMMISSIONER SMITH: One question, Senator. You asked about the forms, and then I noticed that there were a couple of them passing around here, the blank forms that you asked about earlier. So I assume that request is ... CO-CHAIR TAYLOR: Well, that form modified from the time that you first created it. That was a question that ... DEPUTY COMMISSIONER SMITH: The audit form itself, not the one with the seven questions, the audit form itself was the basic form that was used by APSIN security personnel all along. I don't know that its been modified. It may be modified recently in light of what has happened and a change in the verbs, and not something may happen to you, it will. That kind of thing. The other forms that's created on the fly, as it were, asks those specific questions. CO-CHAIR TAYLOR: In conclusion, do you think there's ever a way we're going to be able to truly secure a system like this other than through the integrity of the individuals that we hire? COMMISSIONER OTTE: Mr. Chairman, you know, part of the problem from my perception is sort of a general complacency that has existed in terms of both within Public Safety in aggressively communicating to user agencies and also the agencies themselves about requiring periodic review with their personnel of what the protocols and limitations are to this system. It was painfully clear that there is some complacency wrapped within all of this that certainly we intend to correct. I don't know that there'll ever be a full proof system. I suspect that there's always going to be the human factor there, but I think we can do some additional things to minimize -- to encourage the human factor to stay on course. CO-CHAIR GREEN: One more brief one. On this APSIN request form where you're asking a person to self-incriminate, is there any hammer following that up? Is there anything that somebody who says "Hey, I forgot," is there any teeth in that? COMMISSIONER OTTE: Mr. Chairman, what we're looking for in the audit is simply justification for the inquiry. Absent that, we conclude that we have a problem. If somebody tells me I'm sorry, either I don't think I want to answer your questions, or they try to convince me that they've just somehow forgot, I'll turn them on, not a problem. CO-CHAIR TAYLOR: If there's nothing further, I want to thank you all again. I really appreciate your time. We are recessed. [THE MEETING RECESSED AT 3:39 P.M.]