2004 Committee Substitute for HB0291AFS

HOUSE APPROPRIATIONS AND FINANCE COMMITTEE SUBSTITUTE FOR

HOUSE GOVERNMENT AND URBAN AFFAIRS COMMITTEE SUBSTITUTE FOR

HOUSE BILL 291

46th legislature - STATE OF NEW MEXICO - second session, 2004

AN ACT

RELATING TO INFORMATION TECHNOLOGY; ENACTING THE ELECTRONIC GOVERNMENT ACT; GRANTING DUTIES AND POWERS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. SHORT TITLE.--This act may be cited as the "Electronic Government Act".

Section 2. DECLARATION OF PUBLIC POLICY.--Recognizing that a representative government is dependent upon an informed electorate, the intent of the legislature in enacting the Electronic Government Act is to ensure, and it is declared to be the public policy of this state, that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees. It is the further intent of the legislature, and it is declared to be the public policy of this state, that to provide persons with such information is an essential function of a representative government and an integral part of the routine duties of public officers and employees. The Electronic Government Act shall not be construed to limit any existing public access to public records or services.

Section 3. PURPOSE.--The purpose of the Electronic Government Act is to:

A. establish an electronic government and management structure to provide oversight, review, fiscal monitoring, strategic planning and policy development for the state's electronic government initiatives;

B. define the electronic government powers and duties of the information technology commission;

C. establish an electronic government lead agency and define its powers and duties;

D. establish a basis for the allocation of revenues generated by electronic government initiatives;

E. promote the digital provision of state information, services and business and financial transactions to constituents, businesses and other governmental entities; and

F. promote and protect the privacy of nonpublic data distributed through the state's portal as provided by law, and promote the security of the state's data records and electronic information and services.

Section 4. DEFINITIONS.--As used in the Electronic Government Act:

A. "commercial entity" means a private for-profit business enterprise; provided that nonprofit business enterprises and the media are not commercial entities for purposes of the act;

B. "commission" means the information technology commission;

C. "contract portal developers or operators" means companies that offer portal development, maintenance and ongoing operations under contract with the state;

D. "consumer" means a person or entity that is eligible under the Electronic Government Act to be charged a fee in exchange for the receipt of electronic information or services through the state portal or the state's electronic government activities;

E. "convenience fee" means a fee charged to a consumer to purchase a data record electronically when that purchase is optional and for the convenience of the consumer;

F. "data record" means a collection of related data fields in a computer data base consisting of a group of facts about a particular subject, individual or event;

G. "electronic business" means the conduct of digital business transactions, usually nongovernmental, over the internet;

H. "external electronic transactions" means digital electronic government transactions between state agencies and entities that are not state agencies;

I. "internal electronic transactions" means digital electronic government transactions between two or more state agencies;

J. "internet" means the worldwide, digital networks external to the state's networks;

K. "intranet" means the state's internal digital networks;

L. "lead agency" means the state agency designated by the governor to supervise and coordinate the day-to-day operations of the state's portal and electronic government initiatives;

M. "portal" means a virtual, digital, single port-of-entry to provide access to state information, services and business and financial transactions;

N. "portal fee" means a fee authorized by the commission that the state charges to a consumer to obtain certain data records electronically or to complete certain business transactions with the state through the portal;

O. "state agency" means any executive branch agency of state government;

P. "subscription fee" means a fee charged to a consumer for specific, recurring electronic government services and information provided electronically to the consumer at the consumer's request; and

Q. "transaction fee" means a fee charged to a consumer upon the purchase of certain data records to help defray the costs of providing the record electronically; the fee is charged by and retained by the contract portal developers or operators.

Section 5. ELECTRONIC GOVERNMENT OVERSIGHT AND GOVERNANCE.--The commission shall provide oversight and governance for the electronic government operations of the state's portal and state agency electronic government activities.

Section 6. COMMISSION--ELECTRONIC GOVERNMENT POWERS AND DUTIES.--The commission shall:

A. adopt and promulgate rules necessary for the administration of the Electronic Government Act, including operational procedures for the commission;

B. adopt and promulgate rules for state agencies to conduct business by electronic means over the internet or intranet, including financial transactions;

C. adopt and promulgate rules governing external electronic transactions through the portal;

D. adopt and promulgate rules governing internal electronic transactions through the portal;

E. adopt and promulgate rules for prioritizing the rollout for portal access for state services and information; F. adopt and promulgate rules authorizing the collection of fees, including portal, transaction, subscription and convenience fees, through the portal;

G. establish pricing structures for data records provided through the portal, unless the pricing is otherwise authorized in law; the commission, when determining pricing, shall make the price for an industry proportional to that industry's use of the portal;

H. audit data records released to the public over the internet to ascertain compliance with state and federal privacy laws and rules, and report violations to the office of the attorney general;

I. adopt and promulgate rules necessary to protect the privacy and security of data records that may be released to the public over the internet, ensure compliance with state and federal security laws and rules and report violations to the office of the attorney general;

J. provide oversight and review of state agencies' electronic government activities, including the state's electronic government portal and any contract portal developers or operators that may be retained by the state;

K. perform a monthly financial review, as well as a review of the annual independent fiscal audit of the revenue generated by the state's electronic government portal through any contract portal developers or operators that may be retained by the state, to ensure that the portal is generating appropriate revenues and that the contract portal developers or operators are fulfilling the terms of their contracts with the state;

L. provide oversight and direction to the lead agency regarding the management of any contract portal developers or operators retained by the state and, with the chief information officer, approve or reject the lead agency's and contract portal developers' or operators' plans or implementations for the portal;

M. develop and update annually by September 1 an electronic government strategic plan for the state that is in conformance with the state's information technology strategic plan;

N. provide regular oversight and review of state agency electronic government initiatives that are not conducted through the state's portal to ensure that such initiatives are in compliance with the state's electronic government strategic plan and the state's information technology strategic plan;

O. designate committees and subcommittees as appropriate to assist in the conduct of commission business, including an electronic government committee;

P. provide oversight and review of the lead agency's performance as the portal operations and contract manager for the state and deliver semiannual reports of the findings to the information technology oversight committee, the department of finance and administration and the legislative finance committee;

Q. review monthly the financial situation and the operational status of the state's electronic government portal and other non-portal electronic government activities of state agencies and deliver semiannual reports of the findings to the information technology oversight committee, the department of finance and administration and the legislative finance committee;

R. submit proposed rules to the information technology oversight committee for review and comment prior to adoption;

S. authorize the initial fee structure for the portal, and thereafter, review the fee structure semiannually; the commission may adjust the fee structure at the time of the semiannual review, subject to the terms of contract with contract portal developers or operators; and

T. establish an opt-out provision for the release of information defined by federal or state law as "private" or "confidential".

Section 7. ELECTRONIC GOVERNMENT LEAD AGENCY--POWERS AND DUTIES.--

A. The governor shall designate a state agency as the lead agency for state electronic government activities.

B. The lead agency shall:

(1) provide day-to-day operational supervision and control of the state's electronic government portal and any contract portal developers or operators that may be retained by the state;

(2) accept direction from the commission regarding the management of the portal and contracts with contract portal developers or operators;

(3) provide necessary staff to supervise and manage the state's relationship and contract with any contract portal developers or operators that may be retained by the state;

(4) review the annual independent fiscal audits of the state's electronic government portal and present the results to the commission;

(5) provide any required staffing to the commission;

(6) recommend procedures and rules to the commission for improved oversight of the state's electronic government initiatives;

(7) provide monthly reports to the commission detailing the financial situation and the operational status of the state's electronic government portal and other such information as may be requested by the commission;

(8) provide semiannual reports to the commission for transmittal to the department of finance and administration, the information technology oversight committee and the legislative finance committee detailing the financial situation and the operational status of the state's electronic government portal and other non-portal electronic government activities of state agencies; and

(9) perform any other function assigned by the commission.

C. The lead agency may:

(1) obtain information, copies of documents and records that are not confidential by law from any state agency as necessary to carry out the provisions of the Electronic Government Act;

(2) enter into contracts;

(3) perform reviews of state agency electronic government projects or electronic government management processes;

(4) pursuant to the Personnel Act, hire staff as necessary to carry out the provisions of the Electronic Government Act; and

(5) when requested, offer assistance or expertise on electronic government to the judiciary, legislature, institutions of higher education, counties, municipalities, public school districts and other political subdivisions of the state.

Section 8. ELECTRONIC GOVERNMENT FUNDS--FEES.--

A. Money collected from providing data records, services or information through the state's portal shall be distributed to the general fund, unless otherwise provided by law.

B. Fees for providing data records, services or information that are otherwise authorized in law shall not be affected by the Electronic Government Act, whether or not those fees are collected through the state's portal.

C. Transaction fees that are authorized by the commission for the sale of data records, services or information through the state's portal and specified in the contract with contract portal developers or operators shall be retained according to contract terms by the contract portal developers or operators unless otherwise authorized in law.

D. There are several categories of consumers who may be charged fees for receipt of certain data records, information or services through the state's portal:

(1) a person or entity that obtains data records, information or services for which a portal, convenience, transaction or subscription fee has been authorized by statute or other law;

(2) commercial entities that obtain data records from the motor vehicle division of the taxation and revenue department for use in business but do not resell the data records or reports derived from the data records; fees for this class of users shall be capped at no more than two dollars ($2.00) per data record, including both a portal fee and a transaction fee, if applicable;

(3) commercial entities that obtain data records from the motor vehicle division for use in business and that resell the data records or reports derived from the data records; fees for these commercial entities shall be set at three dollars ($3.00) per data record for the first twelve months that motor vehicle records are available through the portal, at four dollars ($4.00) per data record beginning twelve months after motor vehicle records are available through the portal and at a fee to be determined by the commission that does not exceed five dollars ($5.00) per data record beginning twenty-four months after motor vehicle records are available through the portal;

(4) commercial entities that obtain data records, information or services from state agencies other than the motor vehicle division but do not resell the data records, information or services; portal, transaction, convenience or subscription fees for this class of users shall be determined by the commission;

(5) commercial entities that want to obtain monthly monitoring and status change reports from the motor vehicle division regarding the driving records of specific individuals through the portal shall pay a monthly fee of not more than twenty-five cents ($0.25) per month per name, plus the cost of one baseline motor vehicle record per individual per year at the fee established in Paragraph (3) of this subsection; each additional motor vehicle record provided by the motor vehicle division to the commercial entity for monitoring activity during the course of the year shall be charged at the fee for motor vehicle records established in Paragraph (3) of this subsection;

(6) media, including print publications, radio or television stations or news organizations, may be charged portal and transaction fees to cover the actual cost of reproduction and delivery of the data records, information or services requested by the entity and delivered by the portal; and

(7) nonprofit entities may be charged portal and transaction fees to cover the actual cost of reproduction and delivery of the data records, information or services requested by the entity and delivered by the portal.

Section 9. SALE OR RESALE OF ELECTRONIC DATA RECORDS, INFORMATION AND SERVICES.--

A. A person or entity that obtains state data records, information or services provided through the state's portal is permitted to sell or resell the data records, information or services only under the terms of a legal and valid contract between the state and the purchasing entity.

B. Media entities and nonprofit entities that obtain data records for the actual cost of reproduction and delivery pursuant to Paragraphs (6) and (7) of Subsection D of Section 8 of this act shall not sell, resell or deliver the data records to any other person or entity for sale or resale. The prohibition in this subsection does not apply to publication or use of the data records in the ordinary course of business of a media entity.

Section 10. ENFORCEMENT.--The commission may adopt and promulgate reasonable rules to enforce the Electronic Government Act.

Section 11. ELECTRONIC GOVERNMENT PLANS AND PROJECTS.--

A. The commission on higher education, the judicial branch of government, the legislative branch of government and municipalities and counties are encouraged to submit their electronic government plans and projects to the commission, the lead agency, the legislative finance committee and the information technology oversight committee for review and comment by those entities.

B. The commission on higher education, the judicial branch of government, the legislative branch of government and municipalities and counties are encouraged to coordinate their electronic government plans and projects with the executive branch and each other whenever possible in order to leverage resources and optimize services to constituents.

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