Return to ERSC Minutes Index Page

ERSC Meeting Minutes April 18, 2000

The Electronic Records Study Commission ("ERSC", "Commission" or "Members") met on Tuesday, April 18, 2000, at 9:20 a.m. in Little Rock at the State Capitol in Room 272, pursuant to written notice fixing the place and  time. The meeting was recorded by audiocassette tape.

The following Commission members were present or absent as indicated below:

Name of Commissioner/Appeared

Susan Cromwell In Person
Kristen Gould In Person
Patti Hill In Person
Carol Griffee In Person
Jeff Porter In Person
Mac Norton In Person
Steve Russell In Person
Jerry Rose Absent
John J. Watkins Absent
Dennis Byrd Absent
Stewart Nelson Absent
Darin Gray Absent
Julie Cullen Absent

The meeting is called to order by Susan Cromwell and roll call is sounded by the Secretary, Patti Hill.  It is determined that because Julie Cullen is no longer a member of the DIS staff and therefore no longer a member of this Commission, a quorum is present with seven members.

Susan Cromwell invites comments regarding the February and March Minutes.

Kristen Gould suggests standardization in the style of the Minutes regarding reference to members of the Commission.   Diann Duty, Transcriptionist from the Attorney General's Office, is introduced to the Commission.  Members are asked to provide Diann with copies of all documents presented during the meeting as reference material. 

The following changes to the February Minutes were brought to the Commission's attention:

Susan Cromwell:  Alice Lacey works at UAF and she's also the Registrar at the University. Susan Cromwell:  Correct spelling of Carol Futhey. Carol Griffee:  Change on third page, fifth line, "Under FERPA, students can and do have access . . ." Kristen Gould:  Change word in the middle of second page, first paragraph, "There is a potential problem lurking out there--these two statutes. . ." Mac Norton:  Change two words in the third Watkins paragraph on page four, ". . . 25 years ago Congress passed a privacy act . . ."

A move was made by Patti Hill and seconded by Mac Norton to accept the February minutes with the corrections as previously noted.  None opposed.

Susan Cromwell then invited comments and corrections regarding the March minutes by first noting that meeting was called to order by Julie Cullen, not Susan Cromwell.

Carol Griffee refers to the statement on the first page of the March minutes when John Watkins pointed out that all state tax records are confidential and the word for return is a broader word for record.  Carol Griffee remarks that her rejoinder was missing and she wanted it on the record.  Carol Griffee had pointed out at the March meeting that some tax records are open, such as surrogate tax collectors, although that's not under FOI, but under the State Tax Code.

Due to the many grammatical errors noted in the minutes, Susan Cromwell asks Patti Hill to deal with all the errors and consistency problems.  Patti Hill responds affirmatively to the request.

Carol Griffee states there were some votes taken at the March meeting that are not reflected in the minutes.  She also spoke of a 4 to 2 vote on a motion regarding privacy. Mac Norton says he doesn't remember it that way.  There is talk of a video tape of the March meeting but it is not confirmed whether the tape was usable. Susan Cromwell turned to someone in the audience and asked if they could check with Karen Walls as to whether or not there was sound on that video?

Carol Griffee makes a motion that consideration of the March minutes be deferred pending further investigation.

Mac Norton asks that the investigation into the March minutes include whether there were four proposed assignments or three and, also, about the vote on scope. Susan Cromwell reports she recorded four assignments which included John Watkins getting scholastic records and privacy issues; Mac Norton was to deal with security; and, then a fourth one about copying issues.  She also says she recorded the vote on scope like this: "When we've identified a principle that the current Act deters, we will propose an amendment to cure the conflict or omission."  Susan Cromwell says she recorded the vote as "aye."

It is agreed by the Commission that the March minutes will be deferred for further investigation.

Susan Cromwell points out that the Commission has not yet been able to agree on the principles and goes through the exercise of defining where they are going and where they have been at each meeting.  She proposes that discussion and completion of the scope statement should be finalized in today's meeting. Jeff Porter talks of the rumors that scare people about what can be found on the Internet.  He says the information on the Internet is really not as widely distributed as people might say and that it's the same information that can be found on paper.  He uses student records as an example. Kristen Gould talks of student records as being a sub-issue to the overall privacy issue.

Discussion is held regarding John Watkins' draft language regarding the privacy statement which was emailed to the members prior to this meeting.  Suggestions to be taken back to John Watkins are requested by Susan Cromwell so that discussion and a vote may be taken at the next meeting.

Kristen Gould's comment is that John Watkins did exactly what was needed and asked of him and he did it nicely.  She said the purpose of this language is to let compliance with Federal FOI law match State FOI so there is not a difficult choice to be made by educational institutions insofar as choosing between the risk of violating State FOI and endangering that institution in losing Federal funds.

Mac Norton suggests John Watkins' language be amended to include "medical records, adoption records, and education records, as defined in the Family Education etc. 1232g, insofar as same are maintained in electronic form." No action is formally taken on that suggestion.

Carol Griffee says she had hoped to overcome some of the problems of privacy by recommending legislation to amend the FOI, for instance, to require all agencies to have vendors that would help them comply with the FOI and maintain not separate files; but, files of confidential information and files of public information that could be merged or separated electronically. Mac Norton says the purpose is to test the program, not to see what the students are doing.

Susan Cromwell talks about the Land Information Board's concern over 'personal identifiable information' and how the very powerful technology of electronic records has advanced the problem for secondary use of that information.  She passed around an article that came from the last Land Information Board's meeting and was presented by the Chair, Suzanne Wiley, at that meeting.  Susan Cromwell asks that each member read the article and that perhaps, as a Commission, they should do a little more research into that area.  

Mac Norton says he's having trouble understanding why adding "medical records, adoption records, education records as defined in FERPA" to the FOI would attract opposition since it would define education records to relieve a problem that education officials came and told us they had. Carol Griffee says the problem with it is, that it is a problem which should be taken care of outside of this Commission's recommendations.

Susan Cromwell states that the idea from John Watkins was that the Commission needed to at least make an attempt to make recommendations to protect personally identifiable information as much as we currently protect trade secret industry related business and, that we protect business more than we do citizens in Arkansas at this point. Jeff Porter wants to know if there is a definition for 'personally identifiable information?' Mac Norton says there is.

Susan Cromwell suggests that the Commission take advantage of the vast sources of language via the Internet and that the Commission should consider an intense presentation on the issue of privacy - personally identifiable information at its next meeting.  She says she will email a note to each member as to proposed speakers and their qualifications, etc. for approval. Susan Cromwell states that the law is trying to make certain that citizens who provide information to any collection point have the ability to know what is being collected and stored and saved on them individually and passed to secondary sources to better enable them to opt out of it being recorded in the first place and to have a review process down the road when stale data needs to be updated.

This topic was tabled until the next meeting to allow for an educational seminar for the Commission. 

Susan Cromwell asks that they discuss the proposed security exemption from Mac Norton. Mac Norton says he already has changes for it. There is group discussion by the Commission members regarding security standards and problems with which they are all familiar in their own working environments. 

Mac Norton talks about the how and by whom the security criteria is established in State agencies. Carol Griffee asks for a definition between records and fields. Susan Cromwell reminds the members about queries as perhaps needing a definition.  She also suggests that definitions be addressed within the principles.

BREAK - A fifteen minute break is taken and the Commission resumes its meeting at ll:00 a.m.

Susan Cromwell requests suggestions and comments on the principles as a whole. Carol Griffee reminds them that additional wordsmithing may be needed as noted on principle number one.

Mac Norton skips to number six and offers that "Agencies should . . ." would be better than "must" and that maybe "whey they are reasonably capable of doing so" would also be better.  He says he is concerned whether cities and counties are capable of providing the on site talent for such information provisions.

Patti Hill says that from the counties' perspective and for all the cities as well, most counties do not have computer analysts readily available.  It is simpler at this point to copy the information requested from paper and white out or black out whatever information might be considered private. Carol Griffee states that the problem is the use of the word "reasonable," if it's not defined. Mac Norton talks of the taxpayer's point of view -- that the government exists to serve me (the taxpayer) and not the press and requests for information that deter the government from the business I (as taxpayer) expect them to be doing is a waste of the taxpayer's money.

Susan Cromwell asks if "should" instead of "must" is satisfactory in number six right now? Mac Norton replies affirmatively. Kristen Gould also asks if "must" in number eight could be replaced with "should?"

Carol Griffee talks about the possible financial hardship that could be caused unless time periods for compliance are recommended.  There is talk about whether to add on to number seven or to include an additional principle regarding a time limit for implementation of the development and/or purchase of software by State agencies. 

There is no objection when Susan Cromwell asks if the members have decided to keep the sentence, "When possible, agencies should neither develop nor buy software that requires proprietary viewers to access and should seek opportunities to facilitate public access to records when software acquisition decisions are made in the ordinary course of business," as a part of number seven of the principles draft.

Discussion of principles number two and three result in no changes.  After much discussion by the members, Susan Cromwell summarizes the change to number four as follows:  "Information in computers not specifically exempted by statute should not be withheld on the grounds that it is mixed with exempt information."  There are no objections.

The only change made to principle number six is to replace the word "must" with "should."

Jeff Porter moves the discussion to number eight regarding how the accountability of the billing by agencies should be handled. Steve Russell suggests adding to number eight the phrase, "that such costs should be verifiable and itemized." Kristen Gould, Jeff Porter and Carol Griffee talk of the use of the words: consultant time, extensive programming, and unreasonable time, in connection with number eight. Mac Norton reads the sentence aloud the members are talking about rewording in number eight to invite further discussion.  "The public should only be charged the actual cost of reproducing agency-held computerized information unless extensive employee and computer time is required." 

There is more discussion regarding number eight and then Susan Cromwell reads the sentence aloud in the new format the members have agreed on:  "The public should only be charged the actual cost of reproducing agency-held computerized information; such costs should be verifiable and itemized." Carol Griffee says it is excellent. There is no further comment and Susan Cromwell moves the discussion to number nine.

Mac Norton suggests that number nine is addressed within the principle of number eight. Steve Russell, Mac Norton and Carol Griffee try to recall their discussion of number nine from the last meeting and conclude with Mac Norton's restatement of the changes as follows:  Costs of government documents should not be a barrier to access "regardless of whether government records are available from" private information providers.

Susan Cromwell then leads the discussion to Kristen Gould's question on number two regarding whether "stored" should be added for the reason that she can easily envision an electronic FOI request that goes something like this -- every file, every deleted file, a trace of which is still retained on your hard drive. Susan Cromwell suggests the way to handle it would be to add "intentionally" kept, retained or stored.  Kristen Gould agrees. Carol Griffee objects. Jeff Porter explains that numbers six and eight also address this area of concern.  Steve Russell suggests they might substitute the word "intentionally" with "purposefully." Carol Griffee agrees.

Mac Norton says they (the Commission) are changing one of the real fundamentals in the FOI Act that was added by an amendment after just a few years, which is the phrase -- required to be kept or otherwise kept. Kristen Gould reminds the Commission members that a lot of things are unintentionally kept. Mac Norton asks what language can be used that treats the electronic record equivalent to the paper record for the purposes of destruction?  Does it go into backup files? Susan Cromwell answers that routine backups are those things that let you do system restoration.

After a long discussion by the Commission members, Susan Cromwell suggests they might need to point this problem to the document retention policy. Carol Griffee agrees.

Kristen Gould is agreeable to using the words "kept or otherwise kept" in accordance with the agency's retention policy. Carol Griffee disagrees saying it leaves entirely too much discretion within the agency to adopt non-uniform policy. Mac Norton agrees with Carol Griffee. Jeff Porter suggests it might be a software problem.

There is more discussion and Susan Cromwell sums up with "All information stored in computers owned or operated by or on behalf of any agency . . . ." The members say "okay."

Jeff Porter objects to number four in the issues document, saying -- a lot of it is easier. Susan Cromwell offers a remedy by changing "are more difficult" to "could be more difficult."  Jeff Porter agrees.

Susan Cromwell then leads the discussion to drafting a principle about privacy while striking a balance. Jeff Porter suggests they use something to the effect of having the same privacy requirements on electronic records that are under the current FOI Act. Susan Cromwell points to the reason for this Commission. Kristen Gould speaks about her concern over Jeff Porter's suggestion in that it might not be adequate.

Mac Norton says his concern is that "electronic means" make the collection, the centralization and the access to personal information a lot easier than when it was all done by hand and transferred to paper.  He talks of addressing the electronic issue in privacy the same as for paper. Kristen Gould talks about a number four that states the possible problem and she says that because we can do ". . . a, b, c, and d, so much quicker, easier, faster and more effectively; and we can aggregate and manipulate information coincidentally collected about individuals, this may well raise issues of individual privacy that have not previously been addressed." 

Susan Cromwell reads her draft of number four - "agencies should inform themselves of potential confidentiality issues for records they maintain or keep." Carol Griffee suggests the word "knowledgeable." Steve Russell asks "which of their records?" Mac Norton says "records they keep which pose confidentiality concerns." Kristen Gould adds "for individual privacy concerns." Carol Griffee says "No, I'm not going to agree to a privacy . . ."

Susan Cromwell suggests they say "agencies should be knowledgeable about records they keep which pose confidentiality concerns." Carol Griffee and Jeff Porter agree.

Kristen Gould talks about needing a principle that acknowledges that individual privacy may well need to be rebalanced against public access in light of emerging technology. Carol Griffee pounds her hand once against the table and says "No, because I don't want privacy in the open access records law." Susan Cromwell points out that they are talking about principles and recommendations which the members may or may not agree on; however, they are the comments and thoughts of some of the members.

Kristen Gould agrees and additionally points out that the Commission's job is to raise issues and make recommendations. Susan Cromwell suggests they say individual privacy issues may need to be reconsidered.  She also says the principles are going to be the high level language under which we hang issues and recommendations and so the next time the Commission meets, she will have a document reflecting the combined principles and issues for the Commission's review based on today's meeting. 

Steve Russell talks of finding a new way to schedule and establish the meeting dates. After discussion by the members, the tentative date of May 16th is decided to be inconvenient and a working lunch on Friday, May 19th from 10:00 a.m. to 2:00 p.m. is agreed upon.  Susan Cromwell is to find a speaker for a short educational seminar for that time slot and Dennis Schick from the audience offers to provide lunch for the Commission on that date.  It is also agreed that video conferencing should resume for those Commission members in Fayetteville; although, at the last meeting it was determined the goals of the Commission would be better served if all the members were present in the same room at the same time.

Susan Cromwell says she will contact all the Commission members and coordinate the next meeting.  

There being no further business to be transacted and upon motion duly made, seconded and carried, the meeting was adjourned at 12:40 p.m.