12. Sex offender records.

The Alaska Sex Offender Registration Act (ASORA) requires persons convicted of sex offenses or child kidnapping to register and periodically re-register with the Alaska Department of Corrections, the Alaska State Troopers, or local police, and to disclose detailed personal information, including that specified in AS 12.63.010, some of which is not otherwise public. The Department of Public Safety is required to maintain a central registry of sex offenders and child kidnappers. AS 18.65.087. Most of the disclosed information is publicly disseminated and is published by the state on the internet. Specifically, AS 18.65.087(b) provides that information about a sex offender or child kidnapper that is contained in the central registry, including sets of fingerprints, is confidential and not subject to public disclosure except as to the sex offender's or child kidnapper's name, aliases, address, photograph, physical description, description of motor vehicles, license numbers of motor vehicles, and vehicle identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence, and a statement as to whether the offender or kidnapper is in compliance with requirements for reporting residency and other information, or cannot be located. The department, at least quarterly, shall compile a list of those persons with a duty to register under who have failed to register, whose addresses cannot be verified, or who otherwise cannot be located. The department shall post this list on the Internet and request the public's assistance in locating these persons. 18.65.087(g). The name, address, and other identifying information of a member of the public who makes an information request under this section is not a public record under the Public Records Act. AS 18.65.087(e). 

In general, courts have upheld ASORA against legal challenges.  In Patterson v. St., 985 P.2d 1007 (Alaska App. 1999), the appeals court ruled that the state's sex offender registration program does not violate federal or state constitutional rights of privacy. The court in Patterson noted that federal constitution's implicit right of privacy does not attach to matters already within the public domain, as information the public can access under the statute "is already in large part." 985 P.2d at 1016. With respect to the state's explicit constitutional right of privacy, the court noted the constitutional protection of an individual's privacy depends on the factual context and the competing interests between society and the individual, and that at least in the context of convicted sex offenders, the offender's assumed subjective expectation of privacy in biographical information gathered and released pursuant to the statute must yield to society's public safety interest. Id. The court found that any subjective expectation of privacy held by the sex offenders in matters already of public record, such as details of conviction or date of birth, or in his physical appearance — as represented by his photograph, or in his employer's address, was not an expectation society would recognize as reasonable. Id.

However, courts have found the registration requirement unconstitutional with respect to two classes of convicted offenders. First, ASORA violated the due process rights of sex offenders and child kidnappers who were given a suspended imposition of sentence (SIS) by a court, and successfully made a substantial showing of rehabilitation to get through their probationary period without being sentenced, so that their convictions were set aside, before the effective date of ASORA, could not be required to register under the Act. Doe v. State, 92 P.3d 398 (Alaska 2004).  The court said there is a significant difference between a public record that continues to memorialize a conviction after it is set aside and a state-sponsored Internet site that displays the information ASORA requires. The difference is not merely that the state has improved access to public information it had a legitimate right to gather at the time a defendant was convicted. The difference instead lies in the extent and nature of information to be divulged and the offender's duty to keep it updated. To advance ASORA's purposes effectively, the registry must include enough information to enable the public to reduce the danger registrants are assumed to pose.  ASORA therefore requires a sex offender to disclose and update extensive personal information. Much of this information was not otherwise available to the public or the state when the conviction was set aside and much of it would not otherwise be presently available to either the public or the state. Most of the information about Doe that was to have been published in the ASORA registry was not in the public record when Doe was convicted or when the court set aside his conviction and ordered him discharged. (The Legislature subsequently amended ASORA to make it applicable even to offenders whose convictions have been set aside.)

Second, under Alaska’s constitution, ASORA’s registration and publication requirements cannot be applied to persons who committed their crimes before ASORA became effective. See also, Doe v. State, 189 P.3d 999, 1011 (Alaska 2008). The Alaska Supreme Court ruled that ASORA is basically punitive in nature, so that applying its new requirements to those convicted and sentenced before it went into effect violated the ban on retroactive punishment embodied in the “Ex Post Facto clause” of the Constitution.  The Ninth Circuit Court of Appeals had reached the same conclusion analyzing the law under the Ex Post Facto clause of the federal constitution, but the U.S. Supreme Court reversed that decision. See Doe I v. Otte, 259 F. 3d 979 (9th Cir. 2001), rev’d. sub nom., Smith v. Doe, 123 S.Ct. 1140 (2003).  Noting that it has the authority and, when necessary, duty to construe the provisions of the Alaska Constitution to provide greater protections than those arising out of the identical federal clauses, the Alaska Supreme Court construed analogous provision of the state constitution as providing more protection in this context than the federal constitution does. The U.S. Supreme Court had held the statute was not punitive, notwithstanding publication of the registry on the Internet.  123 S.Ct. at 1150.  (“The fact that Alaska posts the information on the Internet does not alter our conclusion. It must be acknowledged that notice of a criminal conviction subjects the offender to public shame, the humiliation increasing in proportion to the extent of the publicity. And the geographic reach of the Internet is greater than anything that could have been designed in colonial times. ... Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.”).

The Alaska Supreme Court, however, found that whatever the intent of the Alaska Legislature in passing ASORA, the effects of the law were clearly punitive.  It analyzed the same seven factors the US Supreme Court did, but reached a different conclusion in doing so. With respect to one factor, for example, the Alaska court found “ASORA requires release of information that is in part not otherwise public or readily available. Moreover, the regulations authorize dissemination of most ASORA registration information ‘for any purpose, to any person.’ Taken in conjunction with the Alaska Public Records Act, ASORA's treatment of this information, confirmed by the regulations, seems to require that the information be publicly available. By federal law, it is disseminated statewide, indeed worldwide, on the state's website. There is a significant distinction between retaining public paper records of a conviction in state file drawers and posting the same information on a state-sponsored website; this posting has not merely improved public access but has broadly disseminated the registrant's information, some of which is not in the written public record of the conviction. As the Alaska Court of Appeals noted, ‘ASORA does provide for dissemination of substantial personal and biographical information about a sex offender that is not otherwise readily available from a single governmental source.’ We also recognized in Doe A that several sex offenders had stated that they had lost their jobs, been forced to move from their residences, and received threats of violence following establishment of the registry, even though the facts of their convictions had always been a matter of public record. We therefore conclude that the harmful effects of ASORA stem not just from the conviction but from the registration, disclosure, and dissemination provisions.”  189 P.3d at 1011.