ERSC Meeting Minutes September 10, 1999The Electronic Records Study Commission met on Friday, September 10, 1999 at 1:00 p.m. via teleconference between Fayetteville and Little Rock, pursuant to written notice fixing the place and time. The following Commission members were present or absent as indicated below: Jerry Rose In person Fayetteville being all of the Commission members appointed in accordance with the provisions of Act 1060 of 1999. --------------- Susan Cromwell opened the meeting and thanked the Commissioners for electing Julie Cullen and herself as Co-Chairs of the Electronic Records Study Commission ("ERSC"). Guests and presenters in attendance at this meeting included Tom Carpenter, Little Rock City Attorney; Melinda Gray, Deputy City Attorney for Little Rock; Jeff Sikes, Staff Attorney for the Association of Arkansas Counties; Milton Scott, Lobbyist for the Arkansas Press Association; Scott Huddleston, Information and Technology Officer for the City of Fayetteville; and Skippy Leek, Desha County Circuit Clerk. The reading of the minutes of the organizational meeting of the ERSC was dispensed with due to time constraints. A copy of the minutes was faxed from Fayetteville to Little Rock. A decision regarding approval of the minutes is still pending. Tom Carpenter presented Senate Bill 805, legislation that was sponsored by Senator Jim Argue and drafted by Mr. Carpenter’s office to address the problems that cities encounter regarding the release of electronic data. Senate Bill 805 contains language from existing Freedom of Information Act ("FOIA" or "Act") statutes in Kentucky, Utah, Florida, and North Carolina. This proposed legislation did not attempt to amend the FOIA since, according to Mr. Carpenter’s research, such changes are generally viewed with distrust and perceived to be a weakening of the Act. Sponsors of S.B. 805 were also concerned with penalty provisions of the FOIA. Of the 47 states polled, 16 had criminal penalties – even negligent violations are punishable as misdemeanors resulting in fines and imprisonment. Senate Bill 805 contains civil penalties from the North Carolina law that are similar to provisions in Arkansas’ FOIA, and adds language regarding any element of bad faith or intentional misconduct on the part of government. Mr. Carpenter specifically asked that the ERSC review the penalty segment of this proposed legislation. Nothing in this bill is intended to avoid the release of data that is already subject to release. The purpose of this legislation is to help cities extract computerized data without shutting down government, violating the FOIA, or being cost prohibitive. Senate Bill 805 contains provisions to establish an actual cost for the capture of electronic data that requires the enactment of a local ordinance. Public meetings were held to ascertain potential problems with the enactment of S.B. 805. The bill was not widely accepted because it was limited to retrieval problems encountered by large cities with no provisions in place to include counties and the State. Another problem was found in the language contained in the bill. Phraseology such as "reasonable period of time" and "reasonable costs" is subject to different degrees of interpretation. The bill contained no method of striking a balance between polar ideologies. According to Mr. Carpenter, some of the main problems encountered by cities in complying with requests for electronic data are supplying the requested information without running afoul of copyright, trade secret, and proprietary information. Electronic records are particularly problematic when attempting to redact protected or confidential information from an otherwise releasable record. Scott Huddleston, Information Technology Manager for the City of Fayetteville, addressed the Commission regarding problems that his city has encountered in complying with requests for electronic records. Fayetteville uses AS-400 as its primary system to store financial records. Emergency, Engineering and General Information System ("GIS") data are maintained on PC-based systems with no dictated file structure. Some records, such as city inspections and Parks Department information are maintained on paper and later stored on microfilm or fiche. This large database is spread out all around the city, making general requests for "everything you’ve got on ‘blank’" particularly difficult to comply with within a limited period of time. Since not all systems are networked, access through various systems is required to accumulate the information. In some instances, posing a query is a lengthy process that can only be accomplished by one employee in a department or by a Technology Department staff member. Fayetteville’s systems provide some ways to block sensitive information. Templates can be loaded to block fields located in certain areas of the record. Some information, such as engineering maps, can be supplied in electronic format but proprietary software is required to access the information. Patti Hill invited Jeff Sikes to this meeting to assist her in presenting county issues at the ERSC October meeting. Commission members posed several questions to Ms. Hill as follows:
Ms. Hill pledged to bring in a cross-section of county systems to give varying points of view. Julie Cullen brought up two points for consideration by the Commission. First, when an information systems agency provides computer backups for the custodial agency, should the information systems agency respond to FOIA requests for the backup tapes in their possession? Second, should a public agency allow a private entity to pay the cost of a cost-prohibitive computer search to further a private lawsuit? Kristin Gould was concerned that the Commission has no representation from school districts around the state. Especially since panic is usually a small district’s reaction to requests for electronic records. Ms. Gould promised to bring in a cross section of school district bookkeepers and programmers to make presentations at some future meeting. John Watkins pointed out the need to hear from higher education on this issue as well and promised to bring in a cross section of colleges to possibly make presentations at the November meeting. Mac Norton led the Commission through a discussion of the Federal FOIA. Of particular interest to the ERSC are a couple of passages that deal with popular records. As of November 1996, federal agencies are required to publish frequently requested items on the web. Senate Bill 805 has a similar provision to make readily producible records available by electronic means. The Federal FOIA also contains guidelines for charging. There being no other business to be transacted and upon motion duly made, seconded, and carried, the meeting was adjourned at 3:10 p.m. Patti Hill, Secretary
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