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ELECTRONIC RECORDS STUDY COMMISSION Summary
Minutes of Meeting The meeting of the Electronic Records Study Commission was held in Little Rock and hosted by Kristen Gould at the Arkansas School Board Association, 808 Dr. Martin Luther King Drive, on the south side of Interstate 630 at 10:00 a.m. 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 Dennis Byrd - In Person AGENDA
Following is a transcript of that tape recording as transcribed by Arkansas Attorney General’s Office staff member, Diann Duty. The meeting commenced at 10:20 a.m. as Doug Elkins called the meeting to order. Patti Hill called the roll. Carol Griffee opened the discussions by recalling their discussion from the last meeting regarding members who had missed consecutive meetings and asked if there had been any follow-up on Darin Gray, who has missed three consecutive meetings? She questioned whether Darin Gray is still a member of the Commission and whether there was a State law regulating all commissions and boards in that area? Susan Cromwell stated there had been some follow-up attempted but not any conversation that would give the members guidance at this point. Carol Griffee volunteered to look into the matter on behalf of the Commission stating that it is unfair to those members on the Commission who come from Northwest Arkansas and other parts of the state and make strenuous effort to participate each month. Kristen Gould welcomed the members to the Arkansas School Board Association’s facility and oriented the group as to restrooms, refreshments, and telephones. She said lunch would be from Jimmy’s and should arrive at about 11:30. Doug Elkins asked if there were any changes, additions, deletions to make to the July Minutes? Stewart Nelson moved to approve the July Minutes as submitted and Kristen Gould seconded. A vote was taken and all said aye save Carol Griffee, who abstained. Doug Elkins asked if any of the members had received feedback on the Final Principles Document? Carol Griffee had only one feedback comment from an agency director who said “show me the bill.” Dennis Byrd reported he had received feedback from Senator Bradford and from the Chief of Staff of the Senate but was not prepared to make his report until the next meeting. Susan Cromwell reported similar feedback from several boards including the Secretary of the Board of Opticians who said “we have no computers.” She said one of the two year colleges wrote back and stated the first principle leads them to believe that we [the Commission] haven’t taken into consideration Federal legislation such as FERPA by commenting that “your first statement is so broad as to imply that we must ignore FERPA’s provisions.” She suggested the members might want to look at that portion of the principles document again and that expense had also been mentioned in other feedback. Susan Cromwell reported feedback from the Department of Human Services’ Chief Counsel wherein he said redaction can be a burden. Stewart Nelson introduced a guest, Mark Hayes, who had a report from city attorneys. Mark Hayes said Jerry Rose had asked him to contact the City Attorneys Association and their consensus was that the general principles are fine. Patti Hill commented that at the Association of Arkansas Counties’ annual conference recently, the comments she was getting were concerned with the privacy issue and unfunded mandates back to the counties. Dennis Byrd reported that Ian Marquand, National Chairman of the Sunshine network to the Society of Professional Journalists, testified before Congress a couple of months ago on problems with the electronic FOI and how it affects people. Marquand’s comments can be found on the SPJ web site at SPJ.org. Carol Griffee reported that the Arkansas Press Women published the entire principles document in its latest newsletter. Kristen Gould reported no feedback to date. Stewart Nelson reported the Municipal League is mostly concerned with the mechanics as being the problem. Mac Norton pointed out that the definition of public record is already limited by the exemptions in the FOIA. John Watkins agreed and referred to the language of 25-19-105(a):
Susan Cromwell asked that the members send their compilations of feedback to the Co-Chairs within a day or two of the deadline so the summaries can be prepared for the Commission’s next meeting. Doug Elkins asked if there was any further discussion on principles. Kristen Gould suggested that any tinkering with the principles should probably wait on the August 31st deadline and be taken up at the next meeting. The members being in agreement, Doug Elkins drew the discussion to the Florida, North Carolina, and Federal FOI material he was handing out to the members. The Georgia FOI was also distributed for perusal. Carol Griffee suggested the members read the story in this date’s Democrat Gazette entitled “Net Privacy on the Minds of America.” John Watkins stated Florida’s Act is a monster - 25 pages! Susan Cromwell asked for suggestions as to how the members wanted to accomplish drafting a document of recommendations. Mac Norton used the concept of custodian from the North Carolina Act as an example of model language for this Commission’s proposals. John Watkins suggested using some of the language in the FOI Acts that had been distributed to the members from other states as models. He also suggested they start with the points they basically agree on and leave the disagreeable items for later. Susan Cromwell agreed and suggested they each take a few moments to peruse the documents in hand and locate possibilities to use as models. John Watkins and Dennis Byrd discussed the “catchall” phrase in North Carolina’s and Arkansas’ first sentence. Carol Griffee related an instance where she received a copy of a study wherein the writer made the statement in his report that Arkansas had no law that covered electronic records and nothing that could even be construed as such. She said she called the professor who had sent the study to her and pointed out to him that just because the word electronic is not in there, doesn’t mean that electronic escapes the current FOI because of the words data compilation in any form which she wrote into the law to catch the budding computer records of the time. Carol Griffee stated that to clear up any uncertainty, the word electronic should be in there. John Watkins agreed and referred the members to Chapter 132-1(a) in the North Carolina document stating they have a catchall phrase but they also have “electronic records” specifically listed. An in-depth discussion of specific wording to capture the meaning of electronic records followed. The phrase most liked by the members was “electronic or computer based.” Susan Cromwell asked that everyone try to find
good examples of language from the other states that would depict the
principles these members held near and dear to their hearts. John Watkins
directed attention to North Carolina’s language that was close to Carol
Griffee’s heart regarding the notion that by a date certain the agencies
have to buy all their equipment, software, hardware, whatever is needed
to allow you to redact confidential information while releasing public
information from the same record source [principle 2.] See bottom of page
7, 132-6.1(a)
Dennis Byrd commented that in fact in drafting the Commission would have to be much more specific in their wording. Stewart Nelson directed the discussion to North Carolina at page 9, the top of the page, section (a). Does that mean to be inferred as certified copies?
Carol Griffee stated agencies have their individual office procedures which cover how much they charge. John Watkins said there are a lot of statutes which set the standards for charging fees for copies of certain documents. Kristen Gould led the discussion to North Carolina’s page 7, 132-6(c) which goes back to our principle 6, regarding the segregation of exempt and non-exempt information. She also directed the members to page 8 (b) on indexing.
Carol Griffee mentioned that citizens have responsibilities to bear in being specific about what they want and what they’re looking for. John Watkins said that point is covered in the Federal law - reasonable specificity. Carol Griffee said that language should be in the Arkansas FOIA. Stewart Nelson brought up the previous questions of the Commission regarding the custodian of the records and asked whether they should be a little more specific in that definition? In response, Mac Norton directed attention to North Carolina’s 132-6(a) in particular which says who is not custodian of the records and to 132-2. which sets forth who is the custodian. Susan Cromwell pointed out Florida’s language at 119.021 in the middle of the page.
John Watkins referred to Arkansas 25-19-105(a):
John Watkins said the problem to which Stewart Nelson was referring came about when the Supreme Court in the Pine Bluff jail case said - no, the police department is open 24 hours a day and people ought to be able to get their arrest records any time (as opposed to regular business hours of 8-5). Break for lunch at 11:47 a.m. and return to session at 12:20p.m It was decided by the members to make written notes on the dry-marker board to help them decide on a definition for custodian. Susan Cromwell wrote on the board and all members participated in the discussion. After an intense discussion and several drafts, the following language was decided upon:
Using the North Carolina handout, the members once again used the dry-marker board to more accurately capture the language they liked relating to principle 6:
In order to make sure that the cost of this
‘segregation’ of exempt and nonexempt information is to be born by the
agency, the following language was suggested:
An entity subject to this act shall bear
the cost of deleting exempt information.
To establish a time frame within which the
agencies should effect the transition from the old to more FOI friendly
software, the following language was offered by the members for perusal
and possible change at the next meeting:
Any electronic record created after the effective
date of this Act (12-31-2001) shall be maintained in a form to permit
segregation under paragraph “A.”
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