“Public records” are defined as “any document, paper, book, letter, drawing, map, plat, photo, photographic file, motion picture film, microfilm, microphotograph, exhibit, magnetic or paper tape, punched card, electronic record or other document of any other material, regardless of physical form or characteristic, developed or received under law or in connection with the transaction of official business.”
In 1990, the state legislature amended APRA to expand the definition of public records to specifically include drafts and memorializations of conversations.
“Public records” are defined as “any document, paper, book, letter, drawing, map, plat, photo, photographic file, motion picture film, microfilm, microphotograph, exhibit, magnetic or paper tape, punched card, electronic record or other document of any other material, regardless of physical form or characteristic, developed or received under law or in connection with the transaction of official business.”
Alaska Stat. 09.25.100 to .220
Sanctions for Noncompliance
The Public Records Act provides no sanctions for noncompliance, but it does provide, in AS 40.25.125, for injunctive relief against anyone keeping you from getting public records: “A person having custody or control of a public record who denies, obstructs, or attempts to obstruct, or a person not having custody or control who aids or abets another person in denying, obstructing, or attempting to obstruct, the inspection of a public record subject to inspection under AS 40.25.110 or 40.25.120 may be enjoined by the superior court from denying, obstructing, or attempting to obstruct, the inspection of public records subject to inspection under AS 40.25.110 or 40.25.120. A person may seek injunctive relief under this section without exhausting the person’s remedies under AS 40.25.123 – 40.25.124.” In exceptional cases, in addition to adverse publicity, other remedies such as recalls or criminal prosecution, or contempt citations for failure to abide by a court injunction or other order, are theoretically possible. See [Open Records] §V.D.10-.11, for discussion of certain other potentially applicable penalties, fines and sanctions. Traditionally, a significant deterrent against noncompliance had been that full attorney fees were available to the prevailing plaintiff in a public interest suit, which a suit asserting a right of public access to government information normally would be. However, in 2003, the Alaska Legislature largely eliminated the public interest litigant exception to the general rule in Alaska that prevailing parties can recover a portion of their fees from the other side. In 2007, the Alaska Supreme Court rejected legal challenges seeking to overturn this law, and in 2018 the Court said public interest litigants seeking access to records couldn’t avoid this result by claiming it was constitutional litigation. See generally, Open Records Guide, §IV.D.9(a). Between the “loser pays” prevailing party fee rule applicable to all Alaska litigants, and elimination of the public interest exception, Alaska has become the only state that would presumptively impose fees and costs on news media and other public interest litigants who unsuccessfully pursue non-frivolous claims. This change has had and is likely to have a significant adverse effect on the press.
Since 2006, FOIA lawsuits have increased 57% and the cost of defending these lawsuits is millions of dollars.
With Evertel, we provide an efficient, proven, and effective manner to share FOIA documents to those requesting. Once your legal experts provide the policy, the executives auditing your agency’s platform can immediately release the approved documents in minutes, avoiding multi-year litigations and expensive legal costs.
The Federal Bureau of Investigation’s CJIS Security Policy sets the minimum security requirements to provide an acceptable level of assurance to protect the full lifecycle of Criminal Justice Information. Agencies using cloud-based services are required to make informed decisions on whether or not the cloud provider can offer services that maintain compliance with the requirements of the CJIS Security Policy.
The CJIS Security Policy integrates presidential and FBI directives, federal laws, and the criminal justice community’s Advisory Policy Board decisions, along with guidance from the National Institute of Standards and Technology (NIST). The Policy is periodically updated to reflect evolving security requirements.
The CJIS Security Policy defines 13 areas that private contractors such as cloud service providers must evaluate to determine if their use of cloud services can be consistent with CJIS requirements. These areas correspond closely to NIST 800-53, which is also the basis for the Federal Risk and Authorization Management Program (FedRAMP) program.
The key agency requirements of CJIS compliance are summarized here:
If you’re sharing CJIS-protect data with another organization, you must have a written agreement between the organizations that you will both comply with CJIS security standards.
Any employees handling CJIS data must have security training within the first six months of being assigned to their role and additional training every other year in the future.
You must have safeguards in place to detect and contain any data breaches. You also need data recovery measures in place. Any data breach must be reported to the appropriate authorities.
You should implement audit controls to monitor who is accessing data, when they are accessing it, and for what purpose they are accessing it. This information should be logged for any future audits.
Under CJIS policy area 5, you must have the ability to control who can access your data. This can include controlling who can access, upload, download, transfer, and delete secure data. It also impacts your login management systems, remote access controls, and more.
The physical location for stored CJIS data must be secured at all times, preventing access from unauthorized persons.
Not only should your data be protected, but your organization’s systems and communications should also be protected, as well. This policy section outlines the steps you must take to protect your systems, like encryption, network security, data breach detection measures, and more.
If you use and manage CJIS data, you are subject to audits a minimum every three years by either the CJIS Audit Unit (CAU) or the CJIS Systems Agency (CSA) for your state.
Everyone associated with your organization – from employees to contractors and subcontractors – must submit to security screenings and national fingerprint-based record checks.
Even your employees’ mobile devices (like smartphones and tablets) are subject to CJIS oversight. You must establish usage restrictions, and authorize, monitor, and control access to your systems via these devices.
It is important to note upfront that HIPAA compliance requirements are primarily focused on health providers. Having said that, government agencies, and in particular 1st Responders, are typically transmitting HIPAA data daily and in non-compliant fashions. In today’s litigious world, it makes sense to comply with HIPAA requirements and remove or minimize the risk.
HIPAA violations are expensive. The penalties for noncompliance are based on the level of negligence and can range from $100 to $50,000 per violation (or per record), with a maximum penalty of $1.5 million per year for violations of an identical provision. Violations can also carry criminal charges that can result in jail time.
Fines increase with the number of patients and the amount of neglect. The lowest fines start with a breach where you didn’t know and, by exercising reasonable diligence, would not have known that you violated a provision. At the other end of the spectrum are fines levied where a breach is due to negligence and not corrected in 30 days. In legalese, this is known as mens rea (state of mind). So fines increase in severity from no mens rea (didn’t know) to assumed mens rea (willful neglect).
The fines and charges are broken down into 2 major categories: Reasonable Cause and Willful Neglect. Reasonable Cause ranges from $100 to $50,000 per incident and does not involve any jail time. Willful Neglect ranges from $10,000 to $50,000 for each incident and can result in criminal charges.
While encryption is an addressable (rather than required) specification, it does not mean optional. The vast majority of data breaches are due to stolen or lost data that was unencrypted. When in doubt, you should implement the addressable implementation specifications of the Security Rule. Most of them are best practices.
Breaches can occur when employees lose unencrypted portable devices, mistakenly send PHI to vendors who post that information online and disclose personally identifiable, sensitive information on social networks.
These are all examples from actual cases. Employee training and adherence to security policies and procedures are extremely important.
Almost half of all data breaches are the result of theft. When laptops, smartphones, etc. are unencrypted the risk of a breach increases considerably. With Evertel, your data is safely stored off-premise; so that a lost or stolen mobile phone or laptop has no data on it and hence and no PHI is compromised.
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