ABSTRACT
In 1990 Alaska enacted a comprehensive revision of its public records law to incorporate electronic information. One notable provision of the law -- unique among states at the time -- authorized state and municipal agencies to offer "electronic services and products" for a fee that recovers a reasonable portion of the cost associated with building and maintaining a geographic information system or other public information system.
This paper first gives a brief overview of this law [Ch. 200, SLA 1990] and policy issues that have arisen during its implementation. The paper then discusses the effects on personal privacy of this and other laws governing public access to information.
The law distinguishes between "public records" and "electronic services and products."
1.1 Electronic Services and Products
Electronic services and products (ESP) are defined as "computer-related services and products provided by a public agency," including
* electronic manipulation of data contained in public records in order to tailor the data to the person's request or to develop a product that meets the person's request;
* duplicating public records in alternative formats not used by a public agency;
* providing periodic updates of an electronic file or data base;
* duplicating an electronic file or data base, or generating maps or other standard or customized products, from a geographic information system;
* providing on-line access to an electronic file or data base;
* providing information that cannot be retrieved or generated by the existing computer programs of the public agency;
* providing software developed by a public agency or developed by a private contractor for a public agency; and
* providing functional access to an agency's system, including capability to input graphic and nongraphic data and to perform analysis, query, printing and plotting functions.
1.2 Public Records
Public records are defined as "any item, regardless of format or physical characteristic, that is developed or received by a public agency, or by a private contractor for an agency, and preserved for informational value or as evidence of organization or operations of the agency."
1.3 Electronic Public Records
Electronic public records that are duplicated in the form kept by the agency -- except records in a GIS or motor vehicle registration list -- form another category for purposes of establishing a fee.
1.4 Fees
The law provides that "the fee for electronic services and products must be based on recovery of the actual incremental costs of providing the service or product," plus a "reasonable portion of the costs associated with building and maintaining the information system of the public agency." Pending regulations lay out a general methodology for setting fees for electronic services and products [6 AAC 96.460]. Specific fee levels are set by departments offering electronic services and products.
The fee for duplicating a public record in the electronic form kept by a public agency may not exceed the actual incremental costs of the public agency [AS 09.25.115(c)]. Actual costs include costs of a disk or other media, costs of duplication such as computer processing time on a mainframe, and, if the production of records for one requester in a calendar month exceeds five person-hours, the salary and benefit costs of personnel performing the work [6 AAC 96.360].
Fees may be reduced or waived for a public purpose, including public agency program support, nonprofit activities, journalism, and academic research. Fee reductions and waivers must be uniformly applied among persons similarly situated.
1.5 Other Provisions
Among other provisions, the law
* requires public agencies offering electronic products and services to include contract provisions that protect the security and integrity of the information system, and that limit the liability of the agency;
* requires distribution of an electronic version of legislative voting records; otherwise, agencies are not required to offer electronic services and products but are required to duplicate public records in electronic form, including GIS data and vehicle registration lists, upon request and payment of fees [6 AAC 96.355];
* establishes a mechanism for resolving disputes about fees and access questions;
* authorizes state agencies and municipalities to copyright software developed by or for a public agency;
* addresses privacy of personal information; and
* provides that public records involved in litigation remain public records subject to disclosure and copying, "except that with respect to a person involved in litigation, the records sought shall be disclosed in accordance with applicable court rules."
2. IMPLEMENTING THE LAW
Attempts to adopt regulations implementing the law resulted in a prolonged debate on how to treat GIS databases, how to set fees for electronic services and products, and how to classify motor vehicle registration lists and data.
2.1 Regulations
New regulations to implement the law were adopted by the Telecommunications Information Council (TIC) in August, 1994 [6 AAC Chapter 96]; they took effect Nov. 6, 1994.
In presenting the final draft of regulations to the TIC for approval, then Commissioner of Administration Robert W. Libbey said ambiguities in the law resulted in varying interpretations of the legislature's intent regarding recovery of costs for electronic services and products, the form an agency is required to provide a public record in, the distinction between duplicating public records versus providing an electronic service or product, and treatment of vehicle registration lists.
"We encourage and support clarification of statute in these areas," Libbey said.
The regulations, which cover public agencies in the executive branch of state government, resolve many of the ambiguities Libbey noted.
Another issue addressed by the regulations is masking of confidential and personal information. Some agencies contended they ought to be able to charge at the higher ESP rate if they had to manipulate data to keep confidential or personal information from being disclosed. The pending regulations clarify that masking or deleting nondisclosable information within a public record does not constitute providing an electronic service or product [6 AAC 96.330].
The judicial and legislative branches are supposed to establish their fees separately, but so far neither branch has done so. The Legislative Affairs Agency staff plans to make a proposal setting fees for electronic services and products in January, 1995, to the incoming 19th Alaska Legislature. The Alaska Court System has appointed a committee to oversee a statewide computerization effort; the committee has not yet considered pricing issues.
Local government agencies are covered by the statute but not by the regulations.
2.2 Effects of Law
What have been the effects of the 1990 law?
Bob Motznik of Motznik Computer Services Inc., the largest private data vendor based in Alaska, says that as a result of the law he was able to obtain access to several digital databases that agencies previously refused to release, including data kept by the Commercial Fisheries Entry Commission and the Permanent Fund Dividend Division. The law also may have had an effect in opening up access to data about sport fishing and hunting licenses, he said.
Although many state agencies are not yet offering electronic services and products, and have not established fees, several agencies with commercially useful data have proceeded to offer electronic services and products under the new law.
2.2.1 Alaska Public Offices Commission
The Alaska Public Offices Commission, which administers the campaign financing law and regulates lobbyists, performs custom searches of its database to meet specific data requests. The fee is based on disk size and personnel costs. The volume of requests is small and fees generated have been minimal.
2.2.2 Commercial Fisheries Entry Commission
The Commercial Fisheries Entry Commission offers a variety of electronic services and products, including custom-made CDs, from data related to commercial fishing permits, vessels and catches. Data sales usually generate between $40,000 and $60,000 a year, a spokesman said. Fees are set to recover the approximate actual cost of providing services. The agency's data is also available free of charge from a call-in bulletin board system.
2.2.3 Department of Natural Resources
The Department of Natural Resources, the state's major GIS agency, began charging and receiving fees under "program receipt" authority granted by the legislature several years ago. In fiscal year (FY) 92, about $5,000 was collected; program receipts rose to $12,400 in FY 93, and to $39,000 in FY 94. Receipts from public access fees appear to be growing in FY 95.
The goal is that fees from services and products will fully cover the agency's cost of providing public access to GIS data and related support services. FY 94 receipts of $39,000 covered about one-third of the agency's cost of public access support, said Richard McMahon, Chief of DNR's Land Records Information Section.
Using a Monte Carlo method and "willingness to pay" test, DNR revised its fees for GIS data sales in March, 1994, establishing a three-tier pricing scheme based on the volume and type of data purchased, and other actual costs. As allowed under the statute, the fees recover a small portion of the agency's cost in developing and providing the data.
The department also enters into data exchanges, which are negotiated on a case-by-case basis. In one example, in return for a base map of the North Slope, British Petroleum provided the department with current hydrography and the current locations of oil and gas facilities and wells on the North Slope.
The DNR recently has begun offering a "GIS Database Starter Kit" consisting of the most commonly requested digital data sets, which may be purchased separately for specific geographic areas.
Major users of DNR's GIS data include federal agencies such as the U.S. Fish and Wildlife Service and the National Park Service, private litigants such as the fishermen and Natives suing Exxon for damages from the 1989 Exxon Valdez oil spill, utilities, oil companies, and Alaska Native corporations.
2.2.4 Restrictions on Use of Data
While the legislation specifically allowed an agency to copyright software, the law gives no authority to license or copyright a database or public data. Nonetheless, the Department of Natural Resources for a time included, in its standard contract, a prohibition on duplication of its GIS data "for the purpose of resale or external distribution." This restriction greatly limited the usefulness of the data to private firms.
In response to this controversy, the pending regulations specifically provide that, except for a disclaimer of liability for the agency, "no provisions may be attached to restrict third-party use of the information. This includes restrictions on sale, distribution, reformatting, or other use of the data." [6 AAC 96.420] The DNR contract recently was changed to read: "To ensure distribution of the most current public information, please refer requests for data or products to the Alaska Department of Natural Resources Land Records Information Section." The language prohibiting duplication was eliminated.
2.2.5 Division of Motor Vehicles
Another controversy developed concerning fees for copies of the electronic vehicle registration records. Under the 1990 law, data in the Department of Public Safety's Motor Vehicle database would have been provided for the actual costs to the agency, the fee generally applicable to electronic public records. However, the Division of Motor Vehicles attempted to continue its previous practice of selling the database for a more significant sum. In 1990 the DMV was charging $25 per thousand records (about $22,500 for 900,000 records); this charge was raised to $35 per thousand records on July 1, 1991. Two complaints were filed with the State Ombudsman's Office in late 1991 alleging that DMV had set its fees in excess of what was permitted by statute.
While the Ombudsman's investigation was still pending, the Division of Motor Vehicles convinced the Alaska Legislature in 1993 to make a somewhat ambiguous amendment to its statute. The change gave the division authority to "provide vehicle registration lists to the public for a fee as an electronic service or product under AS 09.25.115." Because AS 09.25.115 also includes an exception to treatment as an ESP for public records kept in electronic format, the Ombudsman found the statutory change failed to resolve the issue and that the division had set fees in excess of those permitted under the law. [Alaska Ombudsman Investigative Report, June 23, 1994].
At that point, the regulations were about to be adopted. Upon advice from the Attorney General's Office, the Telecommunications Information Council adopted the interpretation of the Division of Motor Vehicles, rather than that of the Ombudsman. Thus the pending regulations allow the Department of Public Safety to establish an ESP fee for a copy of an electronic public record in a vehicle registration list.
The current charge for the vehicle registration electronic file is $50 per thousand records. DMV Director Jay Dulany said three companies have bought the entire file and in addition pay about $3,000 to $4,000 each to receive monthly updates. The DMV collects about $2 million a year in fees from sales of driver and vehicle information, Dulany said, much of it from insurance companies who purchase information about the driving records of individuals. Although not public records, driving records are released to the insurance company at the request of the individual.
3. ACCESS TO PERSONAL INFORMATION
Application of Alaska law on public access to computerized spatial information requires examination from another perspective if the information is personal in nature.
Most of the GIS use in Alaska state agencies is related to land and resources and very little appears to involve personal information.
The state Department of Labor, which uses a GIS for analysis, is one agency with access to personal information in electronic files. A spokesman said the Department keeps all personal information to which it has access confidential in accordance with a number of federal and state laws and regulations governing specific data collection programs. Personal data is routinely aggregated for the purpose of analysis, but the summary information that is made public does not reveal any information that could be identified to an individual.
Although numerous "flat files" and "tabular files" containing personal information generally are not regarded as spatial information, any file of personal information that contains an address, whether or not kept in a system called a GIS, is subject to analysis on the basis of its spatial feature.
3.1 Privacy Laws
A 1974 amendment to the Alaska Constitution states: "The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section." Few Alaska laws have addressed this mandate, except to make various items confidential.
The 1990 Alaska public access law requires agencies to tell people what uses will be made of their personal information and establishes procedures for challenging accuracy or completeness. A definition for "personal information" states that it does not include a person's name, address, or telephone number, if the number is published in a current telephone directory.
Neither state statute nor regulations prescribe substantive standards for determining whether personal information and records are open to the public.
Case law and attorney general's opinions require agencies to analyze each public records request for personal information on a case-by-case basis, balancing the privacy rights of the individual against the public interest in disclosure. The decision on whether to release a particular item then is made by the individual agency custodian of the information.
The presumption is that all data held by the government is open to the public unless nondisclosure specifically is authorized by state law or federal law or regulation.
"When it comes to governmental records, the presumption seems to be in favor of openness rather than privacy. Nine times out of 10 that's how Alaska courts rule," said Tamara Cook, director of the Alaska Legislature's Legal Services Division.
3.2 Permanent Fund Dividend Database
Each year the Alaska Legislature appropriates dividends from a portion of the earnings from the Alaska Permanent Fund, a savings account for some of its royalty oil and gas income. In 1993 the state distributed about $500 million to 525,844 Alaska residents in checks of $949.46 each.
To quality for the annual Permanent Fund Dividend (PFD), each resident must submit an application and meet certain qualifications.
A portion of the Permanent Fund Dividend database -- containing the names and addresses of all PFD recipients -- is public and available to anyone.
The rest of the PFD database consists of personal information submitted by Alaskans on the dividend application, including social security numbers, travel and medical information to justify absences, bank account numbers for direct deposit, sex, birth date, and names and social security numbers of spouses, relatives and friends.
Many local, state and federal agencies have access to this personal information for their use in collecting debts, conducting investigations, determining program eligibility, and other purposes. These agencies include the Alaska Commission on Postsecondary Education, the state Departments of Administration, Health and Social Services, Labor, Law, and Public Safety, the Department of Revenue's Treasury, Income and Excise Audit, and Child Support Enforcement Divisions, all local municipalities in Alaska, the Alaska Court System, and the federal FBI, IRS, Selective Service Commission and federal court system.
The Permanent Fund Dividend file has become a preeminent tool -- heavily used by debt collectors and law enforcement -- for identifying and locating Alaskans. While perhaps a positive development in some contexts, the widespread use of Alaskans' personal information, with little control, opens possibilities for misuse and invasion of privacy.
Legislation proposed in the 1994 session would have classified personal PFD data as confidential while authorizing their widespread use by government agencies at all levels. When the legislation failed to pass, the PFD Division adopted similar regulations.
Uses evolved over the years, and "the division felt the need to get our arms around it so it wouldn't keep expanding," said PFD Division Director Tom Williams.
Williams said he felt Alaskans "shouldn't be held hostage to having your personal information used for anything and everything just because you participate in a state benefit."
Nonetheless, that seems to be what's happening.
Alaskans may become (or already be) the most surveilled group in the country due to the comprehensive nature and widespread use of the PFD database.
The current policy on uses of PFD data violates several privacy principles:
* Personal data is used for many purposes other than the purpose for which is it collected -- determining eligibility for a dividend;
* Disclosure of potential uses is provided but consent to the uses is not required or sought;
* The manner of obtaining the Social Security number is inherently coercive -- the SSN must be provided to avoid having 31% of one's dividend sent to the IRS; and
* Intrusiveness is fostered and not minimized. For example, the Permanent Fund Dividend Division gives out personal information on all Alaska PFD applicants -- to the Municipality of Anchorage, for example -- rather than just running a match for the purpose of attaching the dividend of those few who owe money to the municipality. This approach is used for administrative simplicity, Williams said. The PFD division otherwise would have to hand match about 50,000 garnishments, and that would be expensive.
Does wide distribution of the PFD database -- a de facto central registry of personal information on virtually every Alaskan -- violate the constitutional right of privacy?
Tamara Cook, the legislature's chief legal counsel, said that while no cases have examined privacy implications from this perspective, it is possible the court would find the current practice offensive and unconstitutional.
3.3 Criminal Justice Database
Computerized searches of personal data could increase under a new law that established a comprehensive Alaska criminal justice information system linking files from numerous state agencies with federal databases.
Prior to passage of 1994 law [Ch. 118, SLA 1994], Alaska law did not expressly address the confidentiality of criminal history records on state computers. For various reasons, including a 1989 U.S. Supreme Court decision, the Dept. of Public Safety had not been disseminating criminal justice information to the public.
The new law will provide the public with a great deal of information that is either not available under current law, or is only available by expending great effort to search manual or microfilm files in the possession of the court system.
Data the public will have new access to include
* current offender information, unless release would unreasonably compromise the privacy of a minor or vulnerable adult; "current offender information" includes information about a person currently charged with a crime or in the custody or under the supervision of the state, including the location of incarcerated inmates, and the conditions under which inmates are released;
* past conviction information if less than 10 years has elapsed from the date of unconditional discharge to the date of the request; and
* past conviction information older than 10 years if sought for the purpose of determining whether to grant a person supervisory or disciplinary power over a minor or dependent adult.
Other "criminal justice information" -- such as reports on arrest, release without charges being filed, or a decision not to prosecute -- is available only to criminal justice agencies, or for criminal justice research if individual privacy is protected.
Protection of privacy was considered in developing the provisions limiting public dissemination of very old conviction information and other restrictions, said Assistant Attorney General Dean Guaneli.
The law covers only criminal justice information held in connected computers such as the Alaska Public Safety Information Network (ASPIN), an on-line, interactive system to which numerous law enforcement agencies have direct terminal access. The law does not cover paper records or information in stand-alone computer systems used solely within one agency.
3.4 Motor Vehicle Database
Alaska motor vehicle registration records, including the driver's name and address, currently are public records. Other personal information (e.g., weight, vision) contained in DMV records is confidential. DMV records are part of the larger Alaska Public Safety Information Network.
As part of a crime-fighting package, Gov. Walter Hickel in 1994 proposed a bill that would have made addresses and telephone numbers in DMV records confidential "unless the person requesting the information has a legitimate interest in the information as defined by the department by regulation." The bill was patterned on legislation passed in California in response to the murder of actress Rebecca Schaeffer. In Alaska, a convicted murderer used DMV license plate information to identify the addresses of senior employees of a business before robbing them at gun point, Gov. Hickel said in a transmittal letter to the legislature. The bill did not pass.
The status of Alaska motor vehicle records will change again under the new crime laws passed by Congress. Under the "Driver's Privacy Protection Act of 1994," the federal government is establishing complex rules governing confidentiality of and access to state motor vehicle records, preempting state laws. It appears the provisions of the federal law diminish the privacy protection for personal information, compared to existing Alaska law. The new provisions take effect in three years.