CHEYENNE – A bill that would allow circuit and district court judges to issue out-of-state warrants for digital records was passed by the Senate Judiciary Committee on Wednesday morning, along with two other bills that would amend the current public records law and public defender indigency standards.
All bills heard will now go to the Senate floor, where they will face three reads before going to the House.
Senate File 10 was originally brought up during the interim session. It allows judges to issue out-of-state warrants for digital records. The way the current statute is written, there was some concern from judges that they didn’t have the authority to issue warrants these records.
For example, if a crime is committed in Wyoming, and in order to investigate the crime, law enforcement needs information from Facebook servers in California, judges would have the authority to issue those warrants.
Senate Judiciary Committee Chairwoman Sen. Tara Nethercott, R-Cheyenne, said there are very few court cases nowadays that don’t involve electronic information. These warrants would be issued for criminal cases and in missing persons cases.
“Essentially, what this bill will do is it clarifies everything we need within our district court, circuit court judges regarding their authority to issue extra-territory search warrants,” Nethercott said. “This applies to digital records for data stored in servers that are located out of state, which is really the majority of evidence now.”
She said about half the judges nationwide are issuing these types of warrants to companies that have digital or cloud servers with this type of information on it. Some tech companies have even created portals for law enforcement to submit their warrants to make it easier for them.
Public defender access
Senate File 13 aligns Wyoming’s public defender qualifications with the federal poverty guidelines as an automatic qualifier for representation. The bill also qualifies people for public defenders if they receive public assistance such as Medicaid, Supplemental Security Income, are in prison or jail and more.
The bill also states a person qualifies for a public defender if paying for an attorney would hurt their ability to provide for their family and/or economic necessities.
The bill states that if a person’s annual gross income is 125% of the federal poverty level, they are automatically defined as needy; a person whose income is between 125% and 218% of the federal poverty level may be deemed needy, and a person who makes more than 218% of the federal poverty level isn’t needy.
The income amount varies based on a person’s household size, but a person who is at the federal poverty level in a single-person household makes $12,760 a year or less in the 48 contiguous states, according to the U.S. Department of Health and Human Services. A person who makes more than 218% of the federal poverty guideline makes about $27,000 or more yearly for a single-person household.
Wyoming Public Defender Diane Lozano said this bill gives judges more guidance on whether someone needs the assistance of a public defender. She said in addition to the automatic qualifiers, having the federal poverty guidelines used as a reference for people who are in a gray area for qualification helps make that determination.
Public records changes
Senate File 82 further clarifies the role of the new public records ombudsman, and salary publication requirements for public employees and elected officials.
SF 82 says the ombudsman role is to mediate disputes, receive complaints, keep records confidential until they’re ruled public, provide interpretation and training on the Public Records Act, and other authorities and duties in the act.
Ombudsman Ruth Van Mark and special counsel to Gov. Mark Gordon Emily Soli voiced concerns about Van Mark’s role. They said they’re concerned that Van Mark could potentially get in trouble with the Wyoming State Bar for the unauthorized practice of law.
The association has submitted new rules on this matter to the Wyoming Supreme Court to help with this issue, in an attempt to exempt the ombudsman from this bar rule.
Van Mark said there have been about 14 inquiries to her office since the new position was created, of which about five or six were complaints. She said it’s still pretty early to draw conclusions about how effective the ombudsman position is.
With the complaints, Van Mark said it seems that government entities want the ombudsman to give the “seal of approval” for how they’re handling public records. However, Van Mark has to explain that due to the way the law is currently written, she can’t do that.
People also want the ombudsman to make a ruling as to whether public records are public or confidential, a legal ruling she said she can’t make because she’s not a lawyer or a judge.
“So bar counsel currently has submitted to the Supreme Court amendments to the rules on the unauthorized practice of law to create an exception specifically for the public records ombudsman,” Soli said. “So she’s able to do what she’s statutorily authorized to do without running into that problem.”
Nethercott said her criticism with this process is that it’s difficult when you have the ombudsman, but the position lacks the necessary efficacy to make a difference in transparency. She said with governmental entities claiming privilege or exceptions that require a legal conclusion, the results stay the same to the requester because they still end up in court.
But with the additional administrative step of an ombudsman, it delays the process to get public records and makes it even longer, she said. Moving forward, Nethercott said she would like to consider reduced filing fees and expedited public records court timelines for the more complicated disputes.
The other part of the bill addresses how public employees’ salaries are disclosed and published. Several people, including Teton County Clerk Sherry Daigle and Brian Farmer with the Wyoming School Boards Association, said they were concerned with the way the current law requires salary disclosure.
Farmer said that agencies had 60 days after the end of the fiscal year to publish employees’ monthly salaries, and he was confused about whether agencies need to publish monthly overtime or annual overtime based on how SF 82 is written.
Nethercott proposed an amendment, which passed, for publishing just the base annual salary and amount of overtime paid to each full-time employee and each elected official.