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Opinion 99004

DATE: February 9, 1999

SUBJECT: Authority Of The State Records Board With RespectTo Electronic Access To Motor Vehicle Records Through A Gateway; Neb. Rev. Stat. § 60-483 (4)
(1998) and Neb. Rev. Stat. § 84-1205.03 (Cum. Supp.1998).

REQUESTED BY: Scott Moore
Nebraska Secretary of State
Chairman, State Records Board


WRITTEN BY: Don Stenberg, Attorney General

Dale A. Comer, Assistant Attorney General




In your capacity as Chairman of the State Records Board (the

"Board"), you have requested an opinion from us regarding "the laws

governing the establishment of fees for electronic access to public

information administered by the Board." You state that Neb. Rev.

Stat. § 84-1205.03 (Cum. Supp. 1998) currently requires state

agencies which desire to provide public records in an electronic

format through a gateway for a fee to apply to the Board and follow

various procedures for the establishment of electronic access fees.

You also point out that Neb. Rev. Stat. § 60-483 (4) (1998)

provides that the Director of the Nebraska Department of Motor

Vehicles (the "Department") may enter into an agreement to provide

information concerning various traffic citations and administrative

actions, and that such an agreement may establish the price for

such information. You then ask:




Does Neb. Rev. Stat. § 60-483 (4) give the Director of

the Department of Motor vehicles the authority to enter

into contracts for the sale of information as described

in § 60-483 (4), through a gateway, without making a

written request for approval through the Board and going

through the procedures established for the setting of

fees pursuant to Neb. Rev. Stat. § 84-1205.03?




Two portions of the Nebraska statutes are at issue in your

opinion request. First, § 84-1205.03 (1), which is part of the

Records Management Act, provides:




Any state agency other than the courts desiring to enter

into an agreement to or otherwise provide electronic

access to public records through a gateway for a fee

shall make a written request for approval to the [State

Records] board. The request shall include, but not be

limited to, (a) a copy of the contract under

consideration if the electronic access is to be provided

through a contractual arrangement, (b) the public records

which are the subject of the contract or proposed

electronic access fee, (c) the anticipated or actual

timeline for implementation, and (d) any security

provisions for the protection of confidential or

sensitive records. The board shall take action on such

request in accordance with section 84-1205.02 and after

a public hearing within thirty days after receipt. The

board may request a presentation or such other

information as it deems necessary from the requesting

state agency.




Under the Records Management Act, the term "electronic access" is

defined to mean "collecting, sharing, disseminating, and providing

access to public records electronically," and the term "gateway" is

defined to mean "any centralized electronic information system by

which public records are provided through dial-in modem or

continuous link." Neb. Rev. Stat. §§ 84-1202 (14) and 84-1202

(15)(Cum. Supp. 1998).




Apart from the Records Management Act, Section 60-483 (4),

which is a portion of the Nebraska Statutes dealing with the

Department of Motor Vehicles, provides:




The director [of the Department of Motor Vehicles] may

enter into an agreement with any person to provide the

person information regarding adjudicated traffic

citations or administrative actions from the records

produced for or developed by the department for purposes

related to maintenance of the driver records information

data base. The agreement may determine the periodic

basis, cost, and media on which the information will be

provided.




You wish to know whether § 60-483 (4) allows the Director of the

Department of Motor Vehicles to provide the enumerated motor

vehicle records through an electronic gateway for a fee without

engaging in the process contemplated in § 84-1205.03 (1).




While the result is not entirely clear, it appears to us that

the better answer to your question is that § 60-483 (4) does not

allow the Director of the Department of Motor Vehicles to contract

for access to motor vehicle records through an electronic gateway

for a fee without the approval of the State Records Board in the

manner set out in § 84-1205.03 (1). There are several reasons why

we believe that to be the better answer.




First of all, in Nebraska, special provisions of a statute on

a particular subject will prevail over conflicting general

provisions in the same or other statutes. State v. Wood, 245 Neb.

63, 511 N.W.2d 90 (1994). In the present instance, it appears to

us that § 84-1205.03 (1) deals specifically with electronic access

to public records through a gateway and the procedures to be

followed by state agencies with respect to fees for that particular

access. In contrast, § 60-483 (4) does not specifically mention

electronic access to public records through a gateway and deals

with such access only to the extent that it appears to grant some

general authority to the Department to contract to make such

records available and to determine their cost. As a result, it

appears to us that the more specific statute in this instance is §

84-1205.03 (1), and we believe its provisions control over those of

§ 60-483 (4).




It also appears to us that applying the requirements of § 84-

1205.03 (1) in this instance over § 60-483 (4) is more consistent

with the general legislative intent underlying the Records

Management Act. Both § 84-1205.03 (1) and § 60-483 (4) were added

to the Nebraska Statutes by the same bill -- LB 590 which was

passed by the Legislature in 1997. 1997 Neb. Laws LB 590. That

bill also added the following language to § 84-1201, the statutory

section which sets out the legislative intent underlying the

Records Management Act:




The Legislature declares that:




* * *




(3) The increasing availability and use of computers is

creating a growing demand for electronic access to public

records, and agencies should use new technology to

enhance public access to public records;

(4) There must be public accountability in the process of

collecting, sharing, disseminating, and accessing public

records;

(5) The Legislature has oversight responsibility for the

process of collecting, sharing, disseminating, and

providing access, including electronic assess, to public

records and establishing fees for disseminating and

providing access;

(6) Several state agencies, individually and

collectively, are providing electronic access to public

records through various means, including gateways; and

(7) There is a need for a uniform policy regarding the

management, operation, and oversight of systems providing

electronic access to public records.




1997 Neb. Laws LB 590, § 3 (emphasis added). In light of this

express intent, and in particular in light of the stated need for

a uniform policy for the operation of systems providing electronic

access to public records, it makes little sense to us to read § 60-

483 (4) so as to allow the Director of the Department of Motor

Vehicles to set fees and requirements for access to motor vehicle

records through an electronic gateway separate and apart from the

State Records Board. Instead, we believe that agreements for

access to such records in that fashion are subject to the

requirements of § 84-1205.03 (1). Section 60-483 (4) then controls

access to Department records in other forms or media such as

magnetic tape.




Finally, the Legislative history of LB 590 from 1997 supports

our conclusion with respect to the question which you presented.

The language of § 60-483 (4) was added as an amendment to LB 590

late in the legislative process for that bill. The introducer of

the amendment to LB 590 which became § 60-483 (4), Senator Withem,

described the purpose of the amendment as follows:




It [AM 2304 which became § 60-483 (4)] also deals with a

peripheral issue that came up as this issue was

unfolding. There is a company that markets itself in a

way that it amasses state government information, does

some adjustment to that, and then provides it to

insurance companies. That information is adjudicated

traffic citations and administrative actions. It's

public information. This agen . . . this company is in

the business of gathering that information, doing some

sort of collation process and selling that to insurance

companies. They exist in a number of states. They came

to Nebraska last year wanting to provide their service

here in Nebraska. Because of two things, number one

there is no specific statutory authority for the

Department of Motor Vehicles, the Director of the

Department of Motor Vehicles to provide this information,

and also because of the political controversy that was

associated with all of these issues, the director felt

very uncomfortable entering into this agreement. This

[amendment] would allow specific authority for the

director to enter into an agreement with any person to

provide the person information regarding these

adjudicated traffic citations or administrative actions

from the records produced for or developed by the

department for purposes related to maintenance of the

drivers records information data base. This agreement

may determine the periodic base cost and median (sic)

which information will be provided.




Floor Debate on LB 590, 95th Neb. Leg., 1st Sess. 9005 (May 30,

1997) (Statement of Sen. Withem). Later in the floor debate,

Senator Withem also described the amendment in the following terms:




This was meant as very narrowly drafted language to deal

with a specific situation that is out there. There is a

company wishing to enter into this agreement. The

director, in essence, doesn't mind entering into the

agreement, is just concerned that he doesn't have

statutory authority to do it.




Floor Debate on LB 590, 95th Neb. Leg., 1st Sess. 9006 (May 30,

1997) (Statement of Sen. Withem). As a result, it is apparent

that the language of § 60-483 (4) was added to the statutes with

the narrow purpose of providing the Director of the Department of

Motor Vehicles with specific statutory authority to enter into

contractual arrangements to provide access to certain motor vehicle

records. We do not believe that the language of § 60-483 (4) was

intended to supplant the general purposes of LB 590 dealing with

electronic access to public records through a gateway and creation

of a uniform system to bring that about. For that reason, it

appears to us that electronic access to motor vehicle records

through a gateway is subject to § 84--1205.03 (1).




Sincerely yours,




DON STENBERG

Attorney General








Dale A. Comer

Assistant Attorney General