John Watkins suggested the Commission ought to have both a report that includes its recommendations and implementing legislation that would carry out those changes. He said by this method the Commission could explain its reasons for choosing a particular section of the FOI for amendment and why certain language was used.

Carol Griffee introduced Mark Hudson of the Legislative Research Staff who spoke briefly. Mr. Hudson began by explaining he is a member of the Legislative Staff but not an attorney with the bureau staff. He said he would not be one of the bill drafters involved, but his personal opinion was that anything submitted to the General Assembly with the title “A Bill” above it has more impact than something that says “a report.”

John Watkins added that the Commission would count on people from the Legislative Staff, the Attorney General’s Office, and the attorneys on the Commission to help put a draft in the technical form required by the Arkansas Code, while retaining the substantive product of this Commission.

Dennis Byrd and Steve Russell agreed that a draft bill would be composed of the majority thinking of the Commission and the minority reports would be in a package that all the legislators would have accessible. In this manner the broad base of opinion brought to this Commission by its members would be available to the Legislature.

Patti Hill said Jeff Sikes, AAC, has, in the past, drafted legislation for county clerks and circuit clerks in bill form and that he might be available to work with the Commission.

John Watkins suggested the co-chairs of the Commission be in charge of the drafting project and at the appropriate point all the members will review the draft.

Doug Elkins accepted that responsibility on behalf of the co-chairs.

Dennis Byrd pointed out the limited number of meetings left to work on the draft.

Mac Norton stated the drafting work should be done between meetings, distributed to the members before the next meeting, and then each member would be prepared to talk about it during the meeting.

Susan Cromwell led the discussion to definitions. She said there was some difficulty agreeing on definition of record, data custodian, and data steward. She distributed hand-outs including a new list of principles for discussion and pointed out that numbers 12 and 13 had been added based on their last discussion about encryption and timeliness.

Dennis Byrd asked if there were any definitions of custodian based on FOI lawsuits?

John Watkins said there were none and only a few Attorney General opinions on the subject. He said the closest the Supreme Court had come was in a case involving arrest records in Pine Bluff. In that case the court said since the police department was open 24-hours a day, the records have to be available 24-hours a day, even though the person who is actually in charge of maintaining those records may have different hours.

DIS was used as an example for further discussion on this issue. Susan Cromwell stated that DIS has no ownership or responsibility to know the content of the records they house, and couldn’t possibly make a decision about what information to release because DIS is merely a host, the server.

Mac Norton talked about the definition of custodian and data steward in number (4) on the second page of the hand-out. He said (4)b tell who the custodian is, it’s the person who can specify controls.

Susan Cromwell suggested substituting “service providers” for the words ‘custodian’ and ‘stewards’ in number (4).

Mac Norton said the term needs to be defined as to agency, not an official or a person. Agency being any entry port into that agency.

Susan Cromwell reminded the members of an existing principle that, in addition to providing a description of types of information that is maintained, in number four of the principles it states “instructions for how to access that information should also be described.”

John Watkins said it is fairly clear from a couple Supreme Court cases that the location of the records really isn’t material in FOI cases. What matters is the administrative control over the records, and that’s already been established in Arkansas case law. In the case of most of DIS’ records, the administrative control rests somewhere else.

Several examples of possible FOI requests were given by the members, each one questioning whether an individual is the custodian or the agency?

Kristen Gould suggested there is always going to be an overarching custodian of the record in State government.

John Watkins agreed by saying there are levels of control sprinkled all the way throughout the employee hierarchy.

Mac Norton brought the discussion back to principles number 3 and 4. He said most of the public information is or should be out there readily accessible without having to ask permission via FOI request.

Steve Russell suggested they add to number 3, “or on the Internet.”

A short five minute break was taken and the meeting resumed at 11:15 a.m.

Susan Cromwell also suggested a change to number 3 regarding “electronic records” instead of ‘computerized records.’

Discussion was held regarding the present FOI stipulations inference that if the record doesn’t exist in the form requested, the answer to the FOI request can be “no, we don’t have it.” However, with electronic records, the data can be manipulated with a few key strokes and the form requested can be created by the agency.

John Watkins quoted the Argue Bill “nothing in this Act shall be construed to require a city to respond to a request for a copy of an electronic record by creating or compiling a record that does not exist.” He said the next line in the Bill says the agency can voluntarily do that.

Dennis Byrd reminded the members of the occasion DF&A spoke to this Commission and said there were many occasions where someone requested a record that DF&A didn’t currently have, but, it being a reasonable request, they created it and made it a public record from that point on.

John Watkins said he agreed with Carol Griffee’s remark from a previous meeting that in the purchasing process, agencies should be required to acquire software that will enable them to segregate confidential from public information, and within the same database, perform the kind of data manipulation to create new public information.

Susan Cromwell reminded the members of principle number seven, which addresses this concern.

Stewart Nelson said his biggest problem with searching for new software was that the State won’t recommend to agencies the particular kinds of systems they should purchase to bring about these changes.

Susan Cromwell pointed out that DIS is addressing that issue by developing standards through which an open system can be accomplished and providing this information to agencies to be presented to their potential vendors, as was illustrated in last month’s meeting by the guest speaker from DIS.

The discussion continued by looking at principle number five and footnote number three. Susan Cromwell summed up the discussion saying the definition would reflect -- data, record, field, and file, in that order.

John Watkins talked about pieces of information that cut across every computerized record, but when you print out certain records, that piece can be hidden, not printed.

Doug Elkins referred to that information as meta-data, an instrument by which the rules for the field are defined. Example: social security number has three segments - three, two and four. The meta-data can determine whether the information will be alphanumeric, whether it is viewable, protected, etc. He explained that a field is defined by one set of meta-data.

Jeff Porter asked about the State’s system of linking information and whether social security number is the method.

Doug Elkins said the architecture DIS is working on will not be using social security numbers to tie information on individuals together.

Discussion was drawn back to principle number four by Susan Cromwell. After some deliberation by the members, the word ‘public’ was removed and “available to the public was added at the end of the sentence. *Changes to the principles from this meeting will be presented to the Commission at the next meeting for further discussion.

Susan Cromwell lead the discussion to number six of the principles. After discussion, she summed up the principle as follows: “Custodians should release electronic information in the form requested when . . .”

Susan Cromwell then moved the discussion to number ten of the principles and explained that it’s current format wasn’t clear and needed the Commission’s attention. Discussion by the members indicated number ten and five should be combined. Suggestions resulted as follows:

Electronic information not specifically exempted by statute should not be withheld on the grounds that it is mixed with exempt information. Agencies should be knowledgeable about records they keep and maintain standards for accuracy and processes to distinguish confidential records from those which are subject to . . ."

Mac Norton suggested that number thirteen should set out that the time limit in the FOI Act remain the same unless the agency is not presently capable of delivering the information in the form requested; and, in that case, extra time would be allowed.

LUNCH BREAK (15-20 minutes)

Discussion continued regarding number thirteen and the following was suggested:

Time limits for responding to an FOI request should be equivalent for paper and electronic records. However, time limits for responding to requests for electronic records may need to be extended if the request calls for presentation of data in a form not presently maintained by the agency. Custodian shall certify the reason for the extension in writing and provide anticipated date for compliance with the request.

The discussion was then led to the agency’s cost of producing the FOI request, such as cost of copying, CDs, software, etc. Susan Cromwell passed around another hand-out for perusal by the Commission from Australia regarding their costs and fees issues.

John Watkins said the FOI Act doesn’t currently say anything about costs because as the Act stands now, it does not require copies be furnished. However, with electronic records, all the information will be a copy.

Dennis Byrd asked if requests made by email were acceptable?

Abuse of FOI requests was then discussed by all with varying responses. No consensus was reached regarding email.

Deliberation by the members resulted in overall consensus (no motions and no votes were taken) that the following language should be offered as principle number fourteen:

Electronic access to unrestricted information shall be free of charge except for the actual cost of providing the information. Actual cost shall not exceed the incremental cost of providing the data, which does not include the cost of creating the information systems for purposes relating to the agency mission.

Some discussion was held regarding agencies that charge for their data placed on the Internet in order to pay for the software they bought to accomplish it.

Drawing the meeting to a close, Doug Elkins said that issue would be on next month’s agenda. He then asked the members for input regarding report format of their work product, and possible development of statutory language.

Carol Griffee said any changes this Commission recommended would have to be in the form of amendments to the FOI, not a separate bill or act.

Susan Cromwell directed attention to the hand-out from the Governor’s Work Group on Commercial Access to Government Electronic Records. She suggested the members go to the web site and look at the report in its entirety and consider it as a possible form for this Commission’s work.

Dennis Byrd told of an article on Senator Beebe and Representative Broadway having requested an interim study proposal on frivolous FOI requests, intermediate sanctions and related topics. He said that request is before the Legislative Council now and might be of interest to this Commission. He said he would keep them posted on it.

Doug Elkins directed the discussion toward setting a date for the next meeting. Susan Cromwell announced that Mark Hayes and Stewart Nelson would like to host the next meeting at the Municipal League in North Little Rock at Second and Willow behind the Riverfront Hilton. A 10 to 2 meeting was agreed upon and after some discussion the date of Wednesday, July 12th was set. It was acknowledged that Wednesdays were most inconvenient for Steve Russell.

Susan Cromwell said there is one other agency that might want to share some fact finding and that’s the Department of Environmental Quality. It was suggested the Department submit its issues in writing to be studied by the members between meetings.

There being no further business to be transacted and upon motion duly made, seconded and carried, the meeting was adjourned at 1:55 p.m.