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Transcript of October 31, 2005 MA Senate Hearing on ODF - Updated
Monday, November 14 2005 @ 11:30 AM EST

Here's the complete transcript of the October 31, 2005 Massachusetts Senate hearing on OpenDocument Format. We earlier have had notes and David Berlind had a partial transcript, but now we have it in its entirety. [Note that it is not the official Senate transcript, which we hope to have later.]

To me, the event seems to have had the sole purpose of setting up a blockage to implementation of the decision to go with ODF. Oh, and to bully all in favor of ODF. Senator Pacheco is mistaken about OpenOffice.org being under the GPL, by the way. It's LGPL, and earlier versions can be under a dual license. So he's simply wrong. For more information on OpenDocument Format, I refer you to David Wheeler's masterpiece.

As an example, take a look at Senator Pacheco's run-in with Linda Hamel, General Counsel of ITD, about whether or not certain groups are influenced by Microsoft:

HAMEL: Senator, I think if you take a look at every advocacy group except for the Community of Persons with Disabilities, who's come out against adopting Open Document Format, entities like the Citizens against Public Waste, Americans for Fair Tax Policy, that in most cases you will find Microsoft funding behind the group. And I think that that's an important factor to take account of when you think about competition. When you think about where the comments are coming from. You have some questions today and understand them about why the standard we issued wasn't subject to the 30-day notice and comment process. And I think one of the interesting things about that question is taking a look at whether or not any citizens came forward and said that their due process rights were violated in any way by the adoption of this standard. Setting aside again the Community of Persons with Disabilities. Whose issues we'll address later. . . . But my point is that the playbook of issues about process came out of -- Microsoft outlined every single process question that's been raised by those groups that you mentioned. And in fact some of their language is quoted verbatim in the comments from those groups. So we did when we saw comments try to find out a little bit about the groups that were presenting that information. And I think it's fair to say, Senator, that some of the groups that would appear to be grassroots entities actually have corporate sponsors. . . .

QUINN: And Senator, if I could just go to the --

PACHECO: So you're saying Citizens against Government Waste or Americans for Tax Reform are a wholly owned subsidiary of Microsoft? Is that what you're saying?

HAMEL: Senator, those are your words, not mine.

PACHECO: Well, it's the impression you just left me with, with the comments you just made. If we don't mean some comments then I suggest you might not want to say them. But I think the bottom line here is that you just inferred that they were bought by Microsoft.

HAMEL: Senator, I never stated that. Those are your words.

PACHECO: OK.

Isn't that ridiculous? She says groups are funded by Microsoft; he accuses her, falsely, of saying they are "wholly owned" subsidiaries, which is obviously not at all what she said. So, hold your nose, and dive in. And by the way, Andy Updegrove is reporting that it appears that the amendment may not arrive on the Governor's desk this session: "The last working day for the state legislature in Massachusetts this year is this Wednesday. As a result, it appears unlikely at this point that the economic stimulus bill that includes an amendment intended to rob the Commonwealths Information Technology Division of its power to adopt standards (or much of anything else for that matter) is not likely to be sent to Governor Romney for signature before the lights go out in the session chambers for the rest of 2005."

I don't know if he's right, but if Wednesday comes and goes with no amendment, we'll at least know that is the cutoff date for worrying about the issue for now.

It is apparent that Microsoft wants people to use their software, and if they don't, they will be hounded. Folks, no one will ever do that to you if you don't want to use Free and Open Source software. You are free as a bird. Use it if you like it, and if you don't, use something else. No one will ever drag you in front of a Senate committee and bully you. It's one of the advantages of FOSS, that you experience complete freedom, and oddly enough, even without being muscled into it, people are choosing to use open standards and open source. It's something in us, I guess, that naturally gravitates to freedom. People don't like to be told what they have to do with their own computers. Sony is learning that lesson in a hurry, one trusts, and Microsoft will have to learn it by degrees, if they are slow learners. In a free market, no one is supposed to force you to use their products.

Update:

In case you were wondering about Citizens Against Government Waste and Americans for Tax Reform, here's some research on Microsoft funding:

According to this page CAGW is funded by Microsoft:

Citizens Against Government Waste (CAGW) is non-profit group that has campaigned on behalf of the tobacco industry and in favour of Microsoft and against open source software. .. . In 1999 the New York Times had described CAGW as one of a number of "Microsoft-financed groups". ("How Microsoft Sought to Gain Political Allies and Influence in Washington".)

According to this page, ATR is funded by Microsoft:

"ATR is heavily funded by a number of corporate backers, with the tobacco, gambling and alcohol industries figuring most prominently in 1999. Other recent ATR funders have included Microsoft, Pfitzer, AOL Time Warner and UPS."

Wikipedia on Citizens Against Government Waste.

Wikipedia on Americans for Tax Reform.

You might find these links instructive about Microsoft, journalism, and politics:

Microsoftball Journalism

Microsoft's Lobbying Efforts Eclipse Enron, 2002

The Microsoft Network, 1998:

A small army of lobbyists from both political parties helped Microsoft win the tax break. Chief among them: Grover Norquist, the high-profile head of Americans for Tax Reform. Hired by the company in 1996, Norquist earns a $120,000 yearly salary from Microsoft alone. He is among the best-connected conservatives in Washington, and the nonprofit ATR has been called a virtual adjunct of the Republican Party. (The GOP is currently in trouble for funneling $4.6 million to the group in 1996 for political agitprop.)

Norquist tells Mother Jones that he is merely an "adviser" to Microsoft, dispensing "strategic advice on how to handle political issues." Yet he offers much more than that. He has placed the company's issues on the national conservative agenda and helped rally groups such as the Christian Coalition and the National Rifle Association around Microsoft's causes.

Microsoft's Hired Gun", 2002 (update by Seattle Weekly, 2005):

Were you surprised to hear that the Microsoft Corp., home of those hard-working but culturally freewheeling computer nerds up in Redmond, Wash., had hired none other than former Christian Coalition executive director Ralph Reed to lobby George W. Bush on its behalf? You probably weren't the only one.

The New York Times reported Tuesday that Microsoft hired Reed to get Bush to support Microsoft's position in the Justice Department's antitrust case if he wins the November presidential election. Reed signed on with Microsoft in the fall of 1998, but stayed on the company's payroll after he became a senior advisor to Bush's presidential campaign in 1999.

Reed's consulting firm, Century Strategies, released a statement Tuesday stating that Reed has never asked Bush to take a position on the government's antitrust case against Microsoft.

"Microsoft Defends ties to Ralph Reed", 2005:

Whatever Reed's role for Microsoft, he is just the latest in a long and large stable of high-priced lobbying and consulting talent retained by Microsoft.

In the most recent lobbying disclosure on file, Microsoft reported spending $5.4 million on lobbying in the first six months of 2004.

Nor is Reed the first prominent Republican hired by the company. Records show that Microsoft paid Grover Norquist $60,000 in 1999. Norquist is founder of Americans For Tax Reform, an influential conservative group that has close ties with the White House and with Republican leaders in Congress.

According to "Adventure Capitalism", 2004, Norquist was a registered lobbyist for Microsoft. [See also StealthPacs]:

Norquist is the capo di capi of the lobbyist army of the right. In Washington every Wednesday, he hosts a pow-wow of big business political operatives and right-wing muscle groups—including the Christian Coalition and National Rifle Association—where Norquist quarterbacks their media and legislative offensive for the week.

Once registered as a lobbyist for Microsoft and American Express, Norquist today directs Americans for Tax Reform, a kind of trade union for billionaires unnamed, pushing a regressive "flat tax" scheme.

Microsoft Supported by Dead People", 2001:

Apparently the dead are fed up with the government's antitrust case against Microsoft Corp. According to a report in the Los Angeles Times Thursday morning, letters purportedly written by at least two dead people have made their way onto the desk of Utah Attorney General Mark Shurtleff. The letters asked Shurtleff to go easy on the company.

According to the article, the letters, along with those of 400 Utah citizens, are part of a nationwide "grassroots" campaign orchestrated by pro-Microsoft groups Americans for Technology Leadership (ATL) and Citizens Against Government Waste. The groups receive some funding from Microsoft but won't disclose how much.

Here's a bit of a press release by CAGW on how mean the EU Commission is to make Microsoft enable interoperability:

European Commission’s Continued Persecution of Microsoft is Unwarranted, says Taxpayer Watchdog

(Washington, D.C.) - Citizens Against Government Waste (CAGW) today denounced the European Commission’s (EC) continued offensive against Microsoft over imposed interoperability efforts allegedly meant to foster greater ease in competition for other software providers. Last Friday, the EC claimed it had “strong doubts” that Microsoft is adequately complying with its orders.

In March 2004, the EC issued a decision requiring Microsoft to hand over valuable intellectual property to its competitors, unbundle its software, and pay a $613 million fine. Although the European Court of First Instance recognized that the merits of the case favored Microsoft, the company was still forced to comply with the EC’s order by creating two versions of the Windows operating systems, one with its music and video player program, Media Player, and one without. Microsoft also released server system code to competitors to facilitate their creation of interoperable applications.

“The EC’s continued harassment of Microsoft is yet another example of forcing a successful corporation to help its competitors who can’t succeed in the marketplace on their own,” said CAGW President Tom Schatz.

“No judge in the U.S. or Europe should bar companies from integrating products with additional user-friendly features,” Schatz continued. “Consumers who are not happy with MediaPlayer can easily download a different a player from any number of competitors. These decisions are best left to the marketplace.”

There are plenty more just like that, and many more if you go back in time urging the end of the antitrust action in the US. Just go to their homepage, and search for Microsoft in their database, and you'll start here.

Americans for Tax Reform has put out some beauts also. Here's a bit from just one example of their style of press release:

TAXPAYERS PRAISE MICROSOFT FOR REFUSING TO SELL OUT TO GOVERNMENT LITIGATORS

Consumers best served by a competitive market, not government regulators and litigators

WASHINGTON, DC -- Citing the benefits consumers continue to enjoy from a competitive computer marketplace, Americans for Tax Reform today praised Microsoft Corp. for refusing to acceded to the demands of state attorneys general during settlement talks in the anti-trust case.

"Who knows how to best meet the needs of consumers, private sector innovators, or government bureaucrats," asked Ron Nehring, Director of National Campaigns for Americans for Tax Reform. "Many of us who value a competitive market that benefits consumers were concerned that the government bureaucrats attacking Microsoft might get a settlement that would set the dangerous precedent that Janet Reno knows best when it comes to technology. Microsoft held firm, and that's good news for consumers and businesses alike."

Nehring cited other reasons Americans for Tax Reform opposes the Clinton Administration's war on Microsoft:

Consumers are benefitting from a vigorously competitive marketplace in computer software and hardware. Microsoft has not acted like a monopoly. It has not restricted the flow of products to market or increased prices. To the contrary, prices continue to fall across hardware and software product categories. "Remember, the government took action against Microsoft because it chose to give away its browser software, while other companies were charging for similar products. The next thing you know, the Justice Department will start complaining the next time Macy's holds a sale."

Technology and the marketplace have made the government's case obsolete. The original impetus for the case was to salvage Netscape's Web browser software. Since then, Netscape merged with America Online and formed a partnership with Sun Microsystems, which is now giving away a full office suite package, StarOffice, to compete with Microsoft's Office software. Other developments are connecting an increasing number of users to the Internet through "post-PC" devices such as digitical, Internet-capable cell phones, where browser software is not an issue. State attorneys general are using the Microsoft case to advance serve their political ambitions. In mediation talks, state attorneys general were even more radical in their approach than the Clinton Justice Department. "For the AG's, this is overwhelmingly political. The more punitive the settlement, the bigger the headlines for these 'A'spiring 'Governors."

### Americans for Tax Reform is a non-partisan coalition of taxpayers and taxpayer groups who oppose all federal and state tax increases. For more information or to arrange an interview with Mr. Norquist please contact Christopher Butler at (202)785-0266 or by email at

Microsoft has not acted like a monopoly. You heard it here, folks. That was the ATR view in April, 2000.

So, Senator Pacheco doesn't know all this? Yet one of the Attorneys General was Massachusetts'. He must be new, then, I conclude, or else I'm forced to conclude that he unjustly gave Ms. Hamel a hard time for stating what has been widely reported as being so. And that makes me wonder: why would he be motivated to do that?

**********************************

PACHECO: -- Quinn and General Counsel Hamel, if you'd like to come forward and take a seat. Take a seat and let me officially open the Senate Committee on Post Audit and Oversight. This meeting will be relative to the information technology procurement. Specifically the Information Technology Division's Enterprise Technology Reference Model version 3.5. Let me also introduce for your edification sitting to my left Senator Richard Moore, who is a member of the Senate Post Audit and Oversight Committee. And to my right the Policy Director for Post Audit, Jesse Stanesa, who will be assisting us today.

At the outset I would like to establish the parameters for this hearing. It is the Committee's responsibility to review the governmental policies and standards by which they were developed including costs, compliance with legislative intent, and administrative guidelines. In the best interests of our citizens and taxpayers (inaudible) Committee's jurisdiction in this matter is derived from our enabling statute, which requires the Committee to make an -- and I quote -- evaluation of the efficiency of operations and effectiveness of programs and the faithfulness of administrative compliance with the intent of legislation and administrative regulations affecting the specified agency of the Commonwealth. Mass General Laws 363. The policy should be adopted in the best interests of the taxpayers and not in the best interests of one particular company over another. That's why we have procurement statutes that try to incorporate an open and fair and competitive process.

In a 2004 report on procurement reform, the Committee documented cost-savings and improved services from increased competition in government procurement processes. That's online for those that are interested in logging on it and seeing some of the work this Committee has done before ensuring that we have more competition, not less, in procurement of services for the taxpayers here, the operation of our government. In order to fulfill this charge (inaudible) Committee has and will rely upon many stakeholders, including ITD. State Constitutional Offices, other state agencies, industry experts and citizen advocates. These stakeholders represent important perspectives in the policymaking process. And none should be excluded in the development of the standard of this magnitude.

For example, the Office of the State Auditor has an IT Audit Division specifically mandated to review these issues. The Secretary of the Commonwealth is the chief public information officer and keeper of the public records. The Committee will consider the testimony of all the stakeholders, in addition to the dozens of industry experts it has met with over the past few weeks, months and years. That's why we have been meeting with representatives of the industries that are involved here for literally almost two years. And we have tried to make available as much time, and the chair and the staff and other members who have been approached by industry groups.

But quite frankly what we want to concentrate on here today is the process which we have followed to get to this point. We want to go over the (inaudible) that are involved here in terms of our electronic public records and also looking at the actual procurement of services here in the Commonwealth, how that is done. And last and certainly not least, the costs of some of the choices that we make when we move forward.

So we'd like to open up the hearing by thanking Peter Quinn, Director of ITD, and Linda Hamel, General Counsel of ITD for being with us today and thanking them for participating willingly in our hearing. I know we met I think it was some time ago in 2003 I believe, December of that year, when I had several questions during that period of time after we had read about the memo that was put out there and the policy that was to be put forth in November of that year I believe it was. And we followed that up with the hearing in December, and at the hearing we talked about the cost analysis, we've talked about procurement, we talked about process, we spoke a lot about a whole range of issues. And so why don't we just begin possibly with you, giving us a little bit of an overview as to where you came from in terms of that meeting to where we are now briefly. But more specifically I would like to have you address the authority that ITD believes it has under 110G17 in terms of where you're coming from as an agency and being able to move forward on this plan somewhat unilaterally.

QUINN: OK and if I could, Senator, I'd like to do an opening statement, which covers about two thirds of what you ask, and --

PACHECO: OK.

QUINN: -- at the end of that statement we will talk about the authority piece. All right? Good afternoon, Senator Pacheco, Senator Moore, and your staff. I want to welcome the opportunity to answer questions about the ITD's recent adoption of the Open Document Format, or ODF, and to clear up many of the misunderstandings that have arisen over the ODF format. Before I address such misunderstandings, I want to put ITD's publication of the ODF standard in context. Seven years ago the Legislature created an IT Commission to examine how the Commonwealth could better acquire and use information technology.

The Commission concludes the Commonwealth's IT systems are a hodgepodge of different and incompatible technologies resulting in information silos. For many years I have stated if someone made one and a vendor sold one, I guarantee we bought one. As a result of this, in this era when state agencies must share information across agency and system boundaries using interoperable systems, we cannot do so or cannot do so without building expensive interfaces. Our goal has been and remains appliance computing. Meaning everything can talk to everything else without expensive retrofit and interfaces.

Oversimplification, Senator, but I always think of Legos. Different shapes and different colors but they all snap together. And that's the way the computing environment should look in the Commonwealth. In response to these concerns, and to a specific recommendation from the former IT Commission, ITD began to develop an IT architecture, a coherent standards-based blueprint for the development of the Executive Department's collection of IT systems. Our architecture, the Enterprise Technical Reference Model, or ETRM, is based on a framework developed and distributed by the federal government and the National Association of State CIOs. Its basic premise is that by adoption of a service-oriented architecture focused on Open Standard technologies, the Commonwealth can be transformed from an IT tower of Babel to an IT United Nations. Adoption of industry standards will enable the Executive Department to use plug-and-play components that interoperate seamlessly. While they are not all sold by the same vendor they are built to the same standards. ITD has published various versions of ETRM. One of them, version 3.5, required that all documents created in the Executive Department agencies would be created in ODF, an open industry standard.

ODF is a type of XML, or Extensible Markup Language. XML is an interchange format. It allows documents created by disparate systems to relate to one another. A document created on a system using a particular version of XML can be read and recreated with fidelity by different systems capable of reading that particular version of XML. We chose to adopt as a standard the version of XML used in ODF.

The Library of Congress adopted ODF as a text format preference, along with PDF, which ITD had also adopted in ETRM version 3.5, for the preservation of the Library of Congress collections. Lynnette Eaton, who is a change management officer, said the following. NARD has required that those series of documents that are likely to be looked at in the future are saved in a nonproprietary XML. She also said that anybody who thinks that the use of proprietary formats is acceptable for electronic records archiving doesn't know what they're talking about. Many national, state, county and municipal governments around the world have already adopted or are considering adopting ODF as their preferred format.

ITD adopted ODF because it's an Open Standard. Some versions of XML are proprietary, encumbered by restrictive copyright and patent licenses that restrict the ability of developers to write software that supports such versions of XML. By comparison, ODF was developed through an open peer review process, is maintained by an open community, is available under patent and copyright licenses that impose minimal restrictions on software developers who wish to write applications to support it now and in the distant future.

Documents created in proprietary XML formats cannot be opened by applications created by vendors other than the format-owner. Moreover, unlike documents created in ODF, documents created in proprietary formats will be inaccessible centuries from now because the ability to read them is tied to a certain proprietary software. If history is our guide, today's applications would be as hard to locate in 100 years as electric typewriters are today. By comparison, new applications can always be written to support documents formatted in Open Standards like ODF long after the software used to create such documents has disappeared.

An Open Document Format, ODF, and the applications that read it are far more likely to be available in 300 years when our great-grandchildren want to read electronic documents we create today. Furthermore, multiple office applications support ODF, even today, so citizens making public record requests will have a choice of applications when they read electronic public records in that format. In short, the Commonwealth's documents belong to its people and should not be locked up in proprietary formats that either restrict access to those who are willing or able to buy particular software tools to open them or prevent access to those records in the future because readability is dependent upon software no longer available.

Having stated our general position, I want to dispel a number of misconceptions about our choice of ODF. First, the applicability of the ODF standard is limited, like the rest of our architecture, to the Executive Department agencies. It does not apply to the Judiciary, although the Judiciary on its own is way ahead of us in this regard and has already rolled out 2,000 desktop applications that support ODF. The Legislature, the Constitutional Office, or the District Attorneys. It does not apply to members of the public who send documents to Executive Branch agencies or require that they use ODF when sending documents to members of the public when they make public record requests. It does not require us to migrate the countless current electronic documents to ODF.

Second, adoption of the ODF standard does not require that we abandon our investment in legacy IT systems. The standard applies only to office documents, and not for our legacy systems that rely on such documents. Those existing IT systems that will be retained and used by agencies until and unless a cost-effective means of replacing the office document components are found. Thus ITD has not and will not ask any agency to dismantle any legacy system that relies on document systems and formats other than ODF.

Third, we have learned from the well-informed community of persons with disabilities that there are currently no applications supporting ODF that meet the current standards for accessibility for such applications. We will not disenfranchise the community of persons with disabilities. We will ensure that their legal rights are respected. We are working with the Mass Rehab Commission, the Mass Commission on the Blind, the Mass Office of Disabilities and the Mass Commission on the Deaf and Hard of Hearing, private sector vendors and the Open Source community to ensure that accessible ODF supporting applications are available. Our current effort to work with the community of persons with disabilities to bring accessibility to the office applications supporting ODF parallels the Commonwealth's leadership in the '90s of the effort to work with Microsoft to ensure its office applications are accessible.

Fourth, there is a misconception that adopting the ODF standard creates a procurement preference or limits competition. In short, the adoption of ODF, an Open Standard that can be supported by any vendor, throws open the door to enormous amount of competition. Even the vendor that owns 90% of the Executive Department's office applications has recently announced support for the open format PDF, and therefore is capable of supporting ODF if it chooses to do so. I had an analogy here about the homebuilding industry and I'm going to skip it and we'll come back to it a little bit later on so I can get to this and get to your other questions. So in closing, while the ODF standards -- we really don't care how you create or manipulate a document. We deeply care that once you are done it'll be in a format that allows all future generations the same surety that you will see in the construction industry in terms of you follow standards that you always know you're going to be able to get at what you need to get. Because that format, the ODF, is totally unencumbered by patents and is entirely inspectable, we'll be able to give future generations that surety. It is our responsibility for generations to come to ensure what we do today will guarantee and preserve that access.

I thank you for allowing me to describe the highlights of our position today and do request the opportunity to respond in person today or later in writing to arguments raised by the opponents of the ODF standard. And if I could, Senator, I'd like to have Linda Hamel actually talk to the policy and our authority to do what it is we've just done.

PACHECO: If I could, just before we get to General Counsel on the standards, let me just go over a couple of questions that I have after listening to the statement. And please if you could make sure that the Committee has a copy of your written statement you just read from that would be helpful.

QUINN: Can do that.

PACHECO: To us. In reference to your statement at the outset, I'm recalling the advice if you will of was it the 2002 IT Advisory Commission?

QUINN: Yeah it was founded in 2002 and issued its report early in 2003, Senator.

PACHECO: Right. And could you tell us who the Commission had hired for consulting services on that?

QUINN: The original consultant was PricewaterhouseCoopers and it was done through a competitive procurement. In the middle of the engagement they in fact got purchased by IBM. And the same team that started with Pricewaterhouse is the same team that in fact completed the entire engagement.

PACHECO: And the 2002 Commission, you're aware that the establishment most recently before the recent announcement took place of the 2004 Commission?

HAMEL: Advisory Board, perhaps, Senator, there is an IT Advisory Board, yes.

QUINN: By the Advisory Board.

PACHECO: Advisory Board.

HAMEL: Yes.

PACHECO: The Advisory Board that was put in place by the Legislature?

QUINN: Right, we had actually worked with folks in the Legislature to file that legislation to create the Advisory Board. Which we felt was a great way to continue the collective dialog of the Commission because the Commission was represented by all branches of government. We thought this was a good way to continue to do that as well as engage public members on that Advisory Board.

PACHECO: And did you remember what the one recommendation that came out of that Advisory Board thus far was?

QUINN: The one recommendation? There was a strategic business plan that was put together and filed with the Legislature on a very very high-level basis. And then as we've gone along there's been numerous discussions about various technologies initiatives in the Commonwealth.

PACHECO: One recommendation that I remember we have here is the recommendation to include all of the partners in terms of the development of any model or anything that would take place, and what I'm referring to here is engagement of the Constitutional Officers that would be involved, etc.

HAMEL: Senator, if I may interject here, when ITD drafted the legislation creating the IT Advisory Board that currently exists, we included each and every one of the Constitutional Officers. And when that legislation was enacted as outside section for budget, for some reason the Constitutional Offices were deleted. So this year we worked with the Advisory Board to get those Constitutional Offices added in. ITD felt from the very beginning, and that is why we included them in the original language of the IT Advisory Board enabling legislation. We agree with you wholeheartedly. Every Constitutional Officer has equal stake in an IT strategic plan but they were left out not by ITD but by the Legislature when that piece was passed.

PACHECO: Left out by the Legislature because the recommendation was trying to follow what had been going on with the Commission originally. But the Constitutional Officers' involvement was coming from the experts in terms of people that had been assembled as Commission members. And one of the recommendations that came forth was to include them with any development of proposals or alternative policies that would be enacted by the Legislature. Not necessarily that they would have to be a member of the Commission. But that their input would be seriously considered and they would have a role and input into the development of that policy. And what you're telling me is that they have or have not had a role in the development of the policy that is before us now?

HAMEL: Senator, if I could address the recommendation of the original IT Commission with respect to the role of all parts of state government, including the Constitutional Officers, it was not that they'd have any role in developing policy at ITD. The recommendation was that as a group various branches of government and the Constitutional Offices meet to propose a strategic plan on an annual basis. And constitutionally speaking, the Judiciary pushed very hard in that conversation to prevent the creation of a central administrative body for information technology based on the ruling of the court itself in the mid '70s on that specific point. So the point of the group was never to help create ITD policy.

PACHECO: Which specific point?

HAMEL: On the point of whether or not there'd be involvement of the Constitutional Offices there was never any question that they would be called upon to tell ITD what policies to create or that ITD would be checking in with them about those policies. The involvement recommended was that those parts of government work together annually to create a strategic plan that all of them can agree to consensually and to avoid the constitutional pitfalls of having a multibranch entity dictating policy to the Executive, the Judiciary, or the Legislature. And I think it's a critical distinction for us to keep in mind.

PACHECO: I have some questions about the constitutionality aspect a little later on but if I could, not to go back to the 2002 Commission, because I would prefer to think about this moving forward in 2004. After the memo came out, after we had our last Post Audit Committee meeting on this in December of 2003. The Legislature proactively adopted a statute which clearly put forth a process, an advisory process, of which Massachusetts Legislature had assumed would be followed. And that's the newest law that's on the books for the Commonwealth of Massachusetts. Not one that goes back to 2003 or 2002 or whenever. It is the most recent statute adopted in terms of the advisory capacity and the role that we believe we wanted to see the Advisory Committee take. Are you suggesting that the reference to the constitutionality question that the Executive Branch or that your agency simply ignored what the Legislature had seen as an important role in putting all of the different agencies together? Or you don't think the language that the Legislature passed was constitutional?

HAMEL: I certainly don't, Senator. I'm just referring to the text of the Advisory Board enabling legislation as it was enacted by the Legislature. It left out the Constitutional Offices.

PACHECO: No, no, no, no, that's not what I'm saying. Let me make it very clear. Legislature adopted, you have the list in front of you, I'm sure, the membership of the Advisory Committee. How the Advisory Committee would interact with ITD, how ITD should be moving forward with the Advisory Board. The Advisory Committee on its own has the ability to make recommendations. As a matter of fact we set forth in the statute the ability to make recommendations and have ready for signature by the Governor to sign particular policies, etc. And one of those recommendations that came forth from the Advisory Committee was that before any policies were to be announced or enacted or put forth that the Advisory Committee, not the Legislature, but the Advisory Committee under the power granted to them, advisory power that albeit, suggested that the scope be expanded, which was consistent with ITD's original viewpoint. So why wasn't it done?

HAMEL: Well, I'd like to draw a distinction again here, Senator. And that is between internal ITD policies that are adopted to cover only the Executive Department and the enterprise-wide strategic plan that is referred to in the enabling legislation for the IT Advisory Board. The IT Advisory Board is required by statute to meet annually several times a year to see if the various branches can agree by consensus on a strategic plan for all of the branches. And there was clearly a desire on the part of the members of the IT Advisory Board, including ITD, that that document, the strategic plan for all of the branches that included elements that were agreed upon by all the branches, would involve consultation with the Constitutional Offices. But when the Legislature enacted and -- but the role of the IT Advisory Board is restricted both constitutionally and based on the text of its enabling legislation. The IT Advisory Board is to advise ITD but there is certainly no requirement in the legislation that ITD approach the Advisory Board for permission to adopt policies that will impact only the Executive Department.

Furthermore, in the process of drafting the legislation for the IT Advisory Board, I was personally rapped on the wrist verbally by the members of the court who are participating in the IT Commission for failing to ensure that whatever it was that we did would abide by the constitutional separation of powers issues outlined carefully in the 1974 case and the opinion of the justices. In which a prior attempt to create a central administrative body for IT was struck down by the court as unconstitutional because it would have had members of various branches speaking to the administration of other branches. The court said no, you cannot do that and the court's representatives repeatedly remind ITD of those rules as we go about our business. So when the IT Commission legislation was drafted we were very careful to ensure that the legislation referred only to advising ITD if the Board felt fit to do so, and we have always been willing to listen. And to creating a strategic plan for all the branches. There is nothing in the text and there is nothing in the constitutional law of our state that would permit a board like the IT Advisory Board to a priori dictate policy information technology in the Executive Department. It is, I would argue to you respectfully, Senator, it would be constitutionally impermissible and would stray from the text created as enabling legislation for the IT Advisory Board.

We have tried to live within the limits of the language that you gave us and we have tried mightily to share the information that we had with the Board. To the extent to which I personally made a presentation on May 11th to the IT Advisory Board about the work that we were doing with respect to negotiating the worldwide patent license for the XML reference schema with Microsoft. And at the end of my presentation, which I brought today, I expressed very clearly, and I have that presentation in writing and I'd be happy to share a copy of it with you, that based on the results of that negotiation in which we had not achieved all of our goals we were not sure what we were going to do with the particular part of the ETRM that dealt with the XML piece.

That was in May 11th. The policy was not even released until September. Long before the public comment period, ITD shared with the IT Advisory Board our concerns, our efforts to work with the majority vendor for the desktops who has over 90% of the desktop business across your enterprise. And we expressed our doubts and our difficulties in that area and we put it in front of the Board. And the response that we got from the Board was not stop it, ITD, we want a year to take a look at this. I myself made that presentation, Senator, and as I said I brought it with me today. Nothing was hidden. And again, in September, before the policy was adopted, I was present when the issue of the ETRM and the provisions pertaining to the Open Document Format were put in front of the IT Advisory Board. They were our partners in trying to move forward and think through that policy before it was published on at least two occasions.

So I think that we try to live within both the constitutional rules on the table, Senator, the text that the Legislature gave us to work with that we try to faithfully adhere to, as well as just the practical reality that we were not asked by the IT Advisory Board not to take this direction, despite the disclosure that we made to them.

PACHECO: Let me try to go back. Again, all of what you just said still doesn't answer my question. The question was that you have an Advisory Board established by the Legislature. As a matter of fact, the legislation reads as follows. The Advisory Board shall advise Executive Department Chief Information Officer on information affecting all of the issues. Quote, the Advisory Board shall draft, recommend and present for signature (inaudible) that shall include information technology standards and strategic plan for the (inaudible) acquisitions and use of information technology. Quote, the Advisory Board have the authority to advise. Granted, they did not have the authority to implement or dictate. That was never the intent. The Advisory Board was to be advisory in nature. Advisory Board recommended that the Constitutional Offices and others be part of the discussion and the deliberation before any recommendation or adoption (inaudible) proposal came forth. That was their recommendation. It was to be a collaborative process. Collaborative process bringing people to the table to have everything explained so that people could raise their objections. Even though that second part I'm referencing as I understand it did not happen. Even with the existing Advisory Board, it was my understanding that there were members of the Advisory Board that did express opposition to moving forward, were there not?

HAMEL: Senator Hart certainly sent a letter stating --

PACHECO: Well, is he a member of the Advisory Board?

HAMEL: Absolutely but it wasn't the Board as a whole, Senator.

PACHECO: Well, I know that but the impression you just left me was that it was sort of unanimous.

HAMEL: But yes you're correct, you're correct. I didn't say that, Senator, I said there was clearly an absence of unified response from the Advisory Board on that issue that we put so clearly in front of them on May 11th at the May meeting. And I again -- Senator, I think we need to compare apples to apples, oranges to oranges here. The legislation talks about a strategic plan. A strategic plan for information technology is an extremely general document that says things like here's the big picture. The ETRM by comparison is not a strategic plan. It is a detailed blueprint that talks about things like what kind of data formats we're going to use. And what the blueprint's going to be for that plug-and-play architecture that the CIO was addressing. So the Advisory Board legislation addresses a strategic plan for all the branches while the ETRM in scope only applies to ITD.

PACHECO: I think it was very clear as a member of the Legislature who voted on it, think it was very clear what the legislative intent was with the Advisory Board. The Advisory Board was put in place in the most recent statute, not something that you can go back to a couple years ago, the most recent statute adopted by the Legislature. So that there would be a cooperative process put in place with decision-making. Especially a decision that has such a dramatic and far-reaching impact across the Executive Branch of the Commonwealth of Massachusetts. Let us move to the authority issue. On your website you identify your authority Mass General Laws Chapter 110G17, of which part you state ITD is authorized to set standards for electronic documents created by the Executive Department agencies and to determine, quote, whether the extent to which and the manner by which each Executive Department agency creates, maintains and preserves electronic records, quote. That's what it says on the webpage.

HAMEL: Yes I know.

PACHECO: Why is it that you left for us that section off the webpage?

HAMEL: Senator, if you're referring to the frequently asked questions document, it may be perhaps that I wrote it in a roomful of people at a white heat in about 45 minutes one afternoon. And to fully look at the legal issues, which were not briefed there, it was simply an FAQ for people interested in reading about the ETRM, ITD has authority under Chapter 7 Section 4A open parens D close parens D to set information technology standards. We view the entire ETRM, including the section on Open Document Format, as an information technology standard. In addition, as you correctly point out, Section 17A of the Uniform Electronic Transactions Act says that both the Secretary of the Commonwealth and ITD have the powers that you cite. I think the question that logically arises from your statement is where's the Secretary in this picture. And I, Senator, couldn't agree with you more about that fact. Both the Secretary of the Commonwealth and ITD have the right to set rules about how agencies in the Executive Department will create, maintain and preserve electronic records. For the past 30 years, ITD has been the de facto electronic archive for the Commonwealth, and we have about 1,750 technologists in the Executive Department. We have people who specialize in technology law, we have people who specialize in technology policy, and we have a fairly large stable of technologists. The Secretary of the Commonwealth has had an archive for the Commonwealth of Massachusetts for decades if not centuries. And currently there is no electronic archive for long-term storage of documents. So de facto the CIO of the Executive Department has ended up being the archivist for the electronic storage of documents.

And I'll just give you one example of that, Senator. We have two legacy systems we don't use anymore that keep payroll data that would talk about what people in my agency for instance or other agencies would make for payroll and what their status was for leave and what have you. They're called the PMIS and the CAPS systems. A few days ago on an unrelated matter, one of the technologists working on those documents pointed out to me that we hold 188 million personnel records, 188 million personnel records stretching back decades, in these systems. Absent an electronic archive, de facto the archiving issues, the records management issues, the problem about how to save electronic documents created in formats no longer in use have fallen in the lap of the Information Technology Division under the Secretary of Administration and Finance.

I know that I personally and I know that Peter Quinn and Secretary Kriss on many occasions reached out to the Secretary of the Commonwealth of this issue. I myself had multiple conversations about the Open Document Format with the Supervisor of Public Records. And we were unable to garner their support. Does that mean that ITD should not adopt policies for the Executive Department about the storage of its records when we have literally billions of electronic records that were born, live and die in electronic format? We look forward to working with the Secretary to create some kind of electronic archive. But until that happens, Senator, we have to deal with those issues.

PACHECO: Yeah. Let me just interrupt you for a second. For the edification of everyone that's listening to this hearing, the full Section 17, not just the piece that was put forth out there, refers to the Supervisor of Records, the Records Conservation Board, and ITD. It's not a unilateral authority that is referenced here. As a matter of fact, I'll read the statute. The Supervisor of Records under Section 1 of Chapter 66 and Clause 26 of Sections 7 Chapter 4, the Records Conservation Board under Section 42 Chapter 30 and the Information Technology Division under Section 7 of Chapter 4A shall determine. It's a collective (inaudible) it's not something that just can be done unilaterally. And so I question when you're talking about public records or strategies of standards or I would consider -- we'll get into the regulation issue in just a little while. So you're saying this is not a regulation, it's a standard? Is that what you're saying?

HAMEL: I'm saying it's not a regulation, Senator. I'd be happy to go into the legal issues if you have time.

PACHECO: OK. So you're claiming here that this is not a regulation, it's a standard. And the standard, even though it impacts electronic public records, does not need the approval of the Supervisor of Public Records for the Commonwealth of Massachusetts. Even though in this section it says that you basically have to do it together.

HAMEL: Well, as you know, Senator, we are to read the entire Mass General Laws as an entirety. And not a single one of those entities has the authority to set information technology standards for the Executive Department. As we do in our enabling legislation. I think what you have here, Senator, is that there's a legal structure that was put in place long before our forefathers and foremothers thought about electronic records and who was going to do what with electronic records. So you have the Secretary of the Commonwealth's awesome responsibility for ruling on access to public records, on saving public records that need to be saved, on telling agencies when they can throw them away. All of which was created in the paper world. And I will grant you that ITD and its predecessor, OMIS, came along much much later than the Secretary of the Commonwealth's rights and responsibilities were created by statute. But when OMIS, the Office of Management Information Services, our predecessor, and ITD later were created, our responsibilities have evolved to the point where you see them today. Where we have responsibility in the Executive Department for setting information technology standards. So I think there's a creative tension between those two separate sections. The UETA language and the language sitting in our enabling legislation. And I would grant you that the only way out of this to deal with this creative tension is to work together.

PACHECO: (inaudible)

HAMEL: No, I think there's a creative tension. Because --

PACHECO: A creative tension.

HAMEL: Yes. I would say there's a creative tension. And in fact, Senator, if you --

PACHECO: Have to look that up in the definition of General Laws.

HAMEL: Senator, if you read the end of the section that you quoted, it said that nothing in UETA would change, alter the preexisting authority of the agencies. And prior to the enactment of UETA we had the authority to set information technology standards. So we have not traditionally gone to the Secretary of the Commonwealth when we told agencies they had to use security devices to keep the state's network safe. And we haven't done that because our enabling legislation says information technology standards. And to the same extent we did not go to the Secretary and say --

PACHECO: We'll be hearing from someone from the Office of the Supervisor of Records and from the Secretary of State's Office a little later on. Does it concern you at all that at least last week in the Boston Globe and more than a month ago in the Boston Herald the Secretary of State's Office has expressed concern about the direction in which you are heading here in terms of public records?

HAMEL: Senator, are you asking me whether I'm concerned that they went to the Globe or whether I'm concerned about the legal opinion expressed there?

PACHECO: Well, you know that's not what I'm asking.

HAMEL: No, I don't know.

PACHECO: I just asked you are you concerned about those references where concerns came forth as a result of calls that came into the Secretary of State's Office to ask for their opinion about this. So can you give me a straight answer?

HAMEL: Senator, I apologize if I sounded like a sophist. I didn't mean to. I just want to make sure I do answer your question. Yes, I am concerned that Alan Cote, the Supervisor of Public Records, is telling agencies something different than what's set forth in the Enterprise Technical Reference Model. I am concerned about that. And part of my concern, Senator, is that despite our best efforts to educate the Secretary of the Commonwealth, despite the fact that the Library of Congress and the National Archives Administration through its electronic records archive project is taking a different path than the Secretary, that we don't seem to be able to reach a meeting of the minds on this issue with them. So absolutely, I think we are concerned.

PACHECO: Does the Library of Congress oversee Massachusetts public records?

HAMEL: No, no, it does not, Senator.

PACHECO: Proposal that the Library of Congress has before them, they adopted Open Office?

HAMEL: Open Document Format. And PDF.

PACHECO: No, it's a different --

HAMEL: Correct, Senator.

PACHECO: Open Document Format without setting Open Office, right?

HAMEL: That's right, correct, Senator.

PACHECO: OK so we have a proposal that is before us of ETRM that basically requires Open Document Format (inaudible) run on the system and it's actually just recently (inaudible) under the Open Office. So has the Library of Congress taken a position on that?

HAMEL: Senator, like ITD, the Library of Congress is referring to a document format, not to an office application that supports it. ITD has never come out and said that agencies have to use Open Office. To the contrary, there are multiple distributors. Like I --

PACHECO: Just answer the question. Has the Library of Congress taken a position saying yes or no, this is what they're -- yes or no, that Open Office is the product that they're going to use?

HAMEL: Like ITD, no, they have not, Senator. Just like ITD. They have not. They came out in favor of Open Document Format as we have. And ITD has never specified that agencies have to use Open Office. And in fact, interestingly enough, because Open Document Format --

PACHECO: Isn't that the practical reality in terms of the implementation of the policy, if it was to go into effect tomorrow, isn't that the practical reality of where things are, at least at this time? In other words, to support systems that are out there. Listen, as we're sitting here, I'm sure sometime in the future that even some of the people that may be opposing this, like IBM was two years ago, and now all of a sudden they're in a different situation now. I'm sure there'll be all kinds of things happening down the road. But as we sit here today, it is my understanding that it's Open Office is the product that can be used right now.

HAMEL: Senator, that is not ITD's understanding. ITD understands there are multiple office applications that support Open Document Format. And we know from Microsoft's recent adoption of the PDF format that it's quite possible even for the vendor that owns 90% of the desktops that you fund that they too could support Open Document Format if they chose to do so. A gentleman whose last name is --

PACHECO: But in the timeline that you're talking, you're talking about January 2007. I know because I asked some of the same questions -- I had the same feeling that you just expressed. Why can't we do this with PDF. And it's my understanding PDF took well over a year to develop. We just had an announcement that there was a lot of development going on before an announcement took place. So let us go back to the Secretary of State's jurisdiction here. Maintain public records. And we'll hear from him directly. But are you aware of the Secretary's 62-page booklet on public records?

HAMEL: Yes I am, Senator.

PACHECO: Which he issued under the role of Chief Public Information Officer of the Commonwealth?

HAMEL: Senator, I keep a copy on my desk.

PACHECO: OK. And he basically in this it says, quote, the Supervisor of Public Records and the Public Records Division is working diligently to format electronic storage standards, quote. That their office is working diligently to format electronic storage standards. Once this is completed, the agency, once it's completed, the agency will be responsible for approving the storage systems of, quote, all agencies and all municipalities, quote. That seems -- just reading the booklet, reading through the standards, reading what the Secretary of the Commonwealth is saying, it seems slightly different than the interpretation that you're giving us.

HAMEL: Well, Senator, when ITD interprets the laws that govern it, we look at the Constitution first, and then we look at our enabling legislation, and that of others. And we find that because our enabling legislation says we can set information technology standards, and that we share with the Secretary of the Commonwealth the obligation to set rules about the creation and preservation of electronic records in the Executive Department, I don't think we've ever assumed that publications for the public issued by the Secretary's office should be the entire basis for our interpretation of our enabling legislation.

PACHECO: Let's move to procurement. Procurement policies that you're looking at. You say now the procurement policy here that you're stating to us today that you see this as a standard. You're establishing a standard, correct.

HAMEL: Yes.

PACHECO: And under the standard, which products specifically can in implementation of this strategy support the Open Document Format?

QUINN: There are a number of them today. Star Office. K Office. Open Office. IBM's Workplace. To just name four. And more are coming. In the paper today Google announced support for Open Office. Standards, if you follow standards not only in technology, if you follow the homebuilding industry or anything, have always always promoted competition and have always been good for the industry. What has been a death knell for industry has been proprietary standards. And all we've said here, and this is not a procurement issue whatsoever, because the largest supplier of desktops in the Commonwealth could choose to support this in a heartbeat if they wanted to. And that is entirely up to them. We are not telling people what to buy. We are saying that this is a standard. Much like many of the other standards that were promulgated over the first couple, first three versions of ETRM. And vendors have all stepped up to hit the standard.

Two years ago there was an immense amount of criticism because we gave Open Source and Open Standards equal footing. And we backed away from that because we truly believe after vetting that entire policy in front of the Mass (inaudible) Council and from the comments we got from everybody Open Standards was the ticket. And this vendor that currently supplies 90-plus percent of all the desktops said this is great. We all want to be about Open Standards. The standard we have adopted here today is created by a standards body that's called -- OASIS is actually the group -- they are a member of the group, they're not an active participant by their choice. And this standard is actually being moved up to be ratified -- submitted for ratification by the International Standards Organization. This is not something that we came at halfcocked. We spent months and months and months.

And if I could just take three minutes, Senator, and talk about how we had these conversations the better part of 2003 and beginning of 2004. Into beginning of 2005 we actually put it out for public comment and got a firestorm of criticism because folks did not feel that the Microsoft XML format was open enough. We again pulled it off. We had a discussion on June 9th. We had an Open Format Senate. And what was put out to all those participants was help us. Help us take this journey, help us, guide us in terms of what we should be doing here in terms of making sure that public records are kept open and preserved for generations to come. And where people are going to have the ability to be able to preserve those and give access to our grandchildren and great-grandchildren. Everybody in that room without exception thought that XML as the right ticket for a directional thing. And everybody in that room except for one company all said it should be an open format, do not compete on locked-in formats. Compete on your technological prowess, please support the open format. And we asked that and everybody in the room agreed to that.

We put it out for public comment again. We're very aware what the comments were. But just so there's no misunderstanding, we also gave preferential treatment in its own degree to the vendor that supplies the majority of our desktop technology and said directionally before we even put it out for public comment, three weeks before, this is the direction we're going to take. And we asked them for support. And they've chosen not to support it at this point but they have chosen to support PDF. How long it took them to do this I don't know. But they are a company with wonderful wonderful technological ability to adapt what it is they need to adapt. And I would hope that they would do this.

This is very reminiscent of what happened in the mid '90s with network protocols. They were in a very very proprietary position and they decided to adopt Open Standards like everybody else. And we would hope that that's what's going to happen on a go forward basis.

PACHECO: Thank you. Question about the -- you referenced the other company has 90% of the business in the Commonwealth. What I'm curious about is that -- and I think this goes to the whole process you've seen evolve over a period of time. Which started out with a memo. Two months later we have a policy. Then as we fast forward ahead a year, negotiations with ITD and this particular (inaudible) it is my understanding based upon the January 2005 -- January of this year that Secretary (inaudible) had announced -- I think it was at a Software Council meeting -- that there was an agreement, a licensing agreement with changes that had been met, which included all this in the new records environment. Is that true?

QUINN: Two clarifications on that, Senator. It was put out for public comment, as we do all of our policies. And then it was withdrawn after that firestorm of criticism about accepting Microsoft XML proprietary format. Second --

PACHECO: So let me -- before you go on, before you go on, want to make sure I'm clear on this.

QUINN: Yeah. Yeah.

PACHECO: The Secretary --

QUINN: And that was just my next part if I could.

PACHECO: And yourself and others that were involved with the decision I'm assuming had agreed that this -- as long as the license agreement was put in place that you went so far as put out for public comment. In other words I would assume that you wouldn't be putting something out for public comment if you didn't believe that it was meeting the outcomes you needed to have met from an ITD perspective. Go ahead.

HAMEL: Senator, it is true that we entered a negotiation. And I will call a spade a spade. With Microsoft. About their XML reference schema for Office 2003. We entered a negotiation with them. Based on the knowledge that we had as a team at the time about what open meant. As this process has unfolded, we have become educated by people in the Open Source community, by people in the Open Standards community, I shouldn't say Open Source. I was talking about Open Standards. By people in the Open Standards community. About what that term means to them.

PACHECO: OK, seems like they've been interchanged a lot lately. OK.

HAMEL: About what that -- about -- excuse me, about what that term means to them. And at the time that we agreed that we were satisfied with the changes to a certain degree that Microsoft had made in its worldwide patent license, we had expressed to them at the time that we didn't get everything that we sought from the negotiation. And we expressed that to the IT Advisory Board as well by the way. You'll see that in the slides that I presented to the IT Advisory Board. We listed the things we got out of the negotiation and the things that we did not get. So at the time when we put it out for public comment and said OK we've negotiated these changes in the worldwide patent license, we're feeling more comfortable with these, it was based on what we knew about open at the time. And as the months went on, and the public, using the public comment process, contacting their government said look, this is not our idea of open, ITD, you're wrong, ITD, and we as a public sector agency, thinking about the good of all the taxpayers, responded to those comments. And what we learned was there's a spectrum of openness. And that although you could put the Microsoft Office 2003 patent license away from the most extreme end of closed proprietary licenses, it's not as open as some other licenses are. And that on that spectrum of openness it certainly didn't satisfy people in the Open Standards community. Open Standards community. Because it simply wasn't open enough. And we didn't know that at the time. That we concluded our initial negotiation with Microsoft.

PACHECO: Do you want me to believe here today that Secretary Kriss didn't know enough about at the time?

HAMEL: Senator, I'm not in any position to testify or state anything about what Secretary Kriss knew. Think you would have to ask Secretary Kriss what he knew at the time.

PACHECO: And I have.

QUINN: And he also, Senator, and I will send you a transcript of his remarks. And if you looked at it, we did not know what was going to be in that final license. He said that they had purported to make some changes. We did not have the final document in our report. OK. He did. Purported of the changes that were going to be in there. And he said that he thought if these things came forth that it was going to be an acceptable format. Those were his words. I will send you that so you can have it verbatim.

PACHECO: Why, just as an aside, why was it that you were concerned about -- you said Open Standards, and statement said Open Source, and you want to correct yourself so quickly, what was the problem there?

HAMEL: Because, Senator, when you adopt a standard like Open Document Format, both proprietary and Open Source distributors can meet those standards. For example, recently Microsoft announced that the next version of Office will support PDF. And one of their representatives said we're happy to support this Open Standard. When you talk about Open Source you're talking about something different than Open Standards.

PACHECO: Well, let me -- OK, well, that's good, I'm glad you -- that's interesting because that's not the way I understand at least how this standard you're proposing works. Let me try to follow this a little bit. You referenced earlier that Open Office could be used. Because it's one of the platforms that would work and meet the Open Document Format, correct? Under Open Office there is what is called a GPL as one of the elements, right?

HAMEL: Not necessarily, Senator. Open Office is distributed by various vendors under different licenses. Some GPL licenses. Some vendors choose what's called a dual licensing mode, under which they may license both under the GPL and some of their products which are somewhat enhanced under a non-GPL license. Open Standards license but not a GPL license. And again, even in the Open Source community, there are questions about whether all those second licenses are necessarily open enough.

PACHECO: Well, it's my understanding -- we won't get into the technology piece, that's not why I want to have this hearing. But I certainly want to make sure that what I'm hearing is correct. And that's why the IT Division, that's what I was hoping when I sent my letter, very early on during the comment piece. And said we wanted to have an objective third party like the IT Division of the State Auditor's Office to go over the cost issue. To go over the IT issues. We were hoping that ITD, having nothing to fear from having a review by IT experts, would be able to just wait a little bit to see whether or not some of the assumptions that have been made were at least in the opinion of the State Auditor correct. I am concerned that when I look at proprietary software companies bidding on work under the Open Document standard, if you do have an Open Office format, if you have an Open Office product, and it's an Open Office product which has GPL as one of the elements, then obviously in order to meet the standard then that would mean that proprietary company would have to release its code. That's what I understand. Now tell me where I'm wrong on that.

HAMEL: Senator, it would not be necessary for a proprietary company to release all of the code for its office application in order to support Open Document Format. Just as Microsoft will not be releasing all of the code for Office 12 in order to support PDF version 1.4. That is not as I understand it a true factual statement.

QUINN: We really don't care whose technology, what you do with it, what transpires in that technology. But we do care in the end when you finally put out that document and you save it in a format for long-term preservation it's in a format. How much you do aside from that, good. Compete on your technological prowess. Give it away because you think that's a good thing to do. It's not what's at issue here and we're not setting procurement. We're just setting a standard that the end of the day what it is you create is the part that we care about. And that makes it a very very open playing field for everybody.

PACHECO: And at the end of the day if that's what we're really talking about, then I think you're going to find as I said in December 2003, I could really care what company's doing what as long as we have competition. Everybody. And everybody is able to participate. There's a large section obviously of the existing IT community here in our state that is being excluded from participation. As a consequence at least the way I understand the policy is written right now. And that is something that needs to be clarified as to whether or not that's real or fictitious or what the story is on it. But the bottom line is that's why I think the IT Division of the Auditor's Office can help us with that. But quite frankly in my opinion more important, I know this is more important than the technology piece. Is that when you look at the governmental responsibility of procurement of governmental services, cost associated with all of this, for the stakeholders associated with all of this. And the statutory (inaudible) that either you do or do not have. It's our responsibility to make sure those issues are done correctly. And that's why I'm having this hearing. That's why (inaudible) having meetings. That's why we want to have as much information come back to us on this (inaudible) procurement policies which state that purchases shall require quote, stimulation of competition. And you're saying that you think this will stimulate more competition.

HAMEL: Exactly. Senator, in order to think about stimulating competition, we have to take a look at where we are today. And where we are today is such a high proportion of our office applications are sold by one vendor. It would be hard for anybody to say that there's competition today for the desktops that we pay so much for in the Commonwealth. We see adoption of Open Document Format as flinging the doors open to competition by a wide variety of vendors selling either proprietary or Open Source products. And where we're going to --

PACHECO: During the meetings that I've had with industry groups and I've had numerous meetings with (inaudible) I have asked what under existing policies or existing scenario prevents people from bidding under existing scenario. And I believe all of them, at least the last few that I met with, said that they can -- they do bid (inaudible) and they are able to participate in the system as it is today. So my question really is what it seems like is that there's one entity that under the way the structure's set up, unless we're in the business of setting what business models we want people to use, all right, it's never been typically what we've done as a state, I'm curious to see what message that sends actually to other people in the intellectual property business areas. That do business here in Massachusetts. We don't usually actually tell folks what business model they have to use (inaudible) why is it that if this is stimulating competition, to help in terms of creating a better standard, why is it that groups like Citizens against Government Waste for example have taken a position they say, quote, limits competition and establishes arbitrary rules, quote, and then groups like the Americans for Tax (inaudible) have also come out on this policy having some strong concerns about (inaudible) have you consulted these groups at all that have expressed these types of concerns and tried to understand where they're coming from or explain to them what you're trying to do?

HAMEL: Senator, I think if you take a look at every advocacy group except for the Community of Persons with Disabilities, who's come out against adopting Open Document Format, entities like the Citizens against Public Waste, Americans for Fair Tax Policy, that in most cases you will find Microsoft funding behind the group. And I think that that's an important factor to take account of when you think about competition. When you think about where the comments are coming from. You have some questions today and understand them about why the standard we issued wasn't subject to the 30-day notice and comment process. And I think one of the interesting things about that question is taking a look at whether or not any citizens came forward and said that their due process rights were violated in any way by the adoption of this standard. Setting aside again the Community of Persons with Disabilities. Whose issues we'll address later.

PACHECO: They are citizens of the Commonwealth.

HAMEL: They are as much citizens as anybody else in this room, Senator.

PACHECO: Yes.

HAMEL: But my point is that the playbook of issues about process came out of -- Microsoft outlined every single process question that's been raised by those groups that you mentioned. And in fact some of their language is quoted verbatim in the comments from those groups. So we did when we saw comments try to find out a little bit about the groups that were presenting that information. And I think it's fair to say, Senator, that some of the groups that would appear to be grassroots entities actually have corporate sponsors.

QUINN: And Senator, if I could just go to the --

PACHECO: So you're saying Citizens against Government Waste or Americans for Tax Reform are a wholly owned subsidiary of Microsoft? Is that what you're saying?

HAMEL: Senator, those are your words, not mine.

PACHECO: Well, it's the impression you just left me with, with the comments you just made. If we don't mean some comments then I suggest you might not want to say them. But I think the bottom line here is that you just inferred that they were bought by Microsoft.

HAMEL: Senator, I never stated that. Those are your words.

PACHECO: OK.

QUINN: Senator, if I could, because you are referencing the industries here in Massachusetts. And we have since 2003 taken the opportunity to use what was the Massachusetts Software Council, what is now the Massachusetts Technology Leadership Council, to actually vet our policy in front of those. Because these are the entrepreneurs. They represent something around 5% of the jobs. It was just in the Globe this morning. Just so you got a reference point. When we sat before them on September 16th, with the exception of the Microsoft folks and one individual who just didn't know what he was talking about unfortunately, everybody came absolutely on the side of Open Standards and open formats. And I thought that that played a very very -- was just a very healthy thing because it allowed everybody to compete and it wasn't directed against anybody.

PACHECO: All right. Let me just follow up on that. Because as you know from our December meeting, I said basically the same thing, still say it today, I don't care if you're driving a BMW or a Mercedes or a Ford here as long as you can get into the same parking space. All right. So that's where I'm coming from. Just seems to me that the policy that's put on here is basically telling me the type of tires you can put on the car. They'd have to put on the car in order to drive into that parking space. And if that's not the case, it's not the case. That's why I asked in my letter to you during the comment period from this Committee that we at least postpone only until the Auditor's Office has a chance to take a look and review and that the Secretary of the Commonwealth's Office had a chance to review and comment before there was an implementation of a policy. Why then couldn't you wait until those two offices had an opportunity to review before implementation? And why, why, when you knew two years ago and more recently, and obviously now, they're here, they'll testify, that there were concerns from the disability community, would you move forward with implementation if you were trying to work in a truly collaborative way with all of these entities? There are concerns that are out there from public records. There are concerns that are out there from the disability community. And quite frankly, and I've checked to see if I could release some redacted copies here today, but I'm not going to do that because I don't want to put the individuals who have written in a position where they -- I'm not saying you'd do it, but -- where they'd get possibly fired down the road. But I've got people in high-ranking slots all across this government calling our office, sending in letters, with very very strong concerns about the way in which -- all of which by the way are very supportive of Open Standards, of the standards, that everybody can bid on, why are there all these concerns if everybody has reached out and taken care of the concerns as they've gone along? They're still there. We talked about these in December of 2003. Here we are in -- what month we're in today, where's the -- oh, Halloween, OK --

HAMEL: October, Senator.

PACHECO: October of 2005 and there are still these concerns out there and still misunderstandings about what it is you're doing. And I go back to the Open Office piece again. You reference different other products that can work, that the GPL piece that you talk about not accurate, so on and so forth, so OK, if all that is factual, and I'm not the IT expert, God knows anybody only has to listen to me for about ten minutes to know that, but quite frankly that's not what this is about. But that's what those offices who are there to check on, the checking balance of government is all about. Executive Branch recommends we dispose of issues. On the Legislative side we put in place an Advisory Board which we wanted to have play a role, not in telling you what to do, but making sure that we're all involved collaboratively. They put forth a recommendation. The recommendation wasn't followed. I think six of the last meetings weren't even held. Were canceled. So why do we still have these comments coming forward? In particular like the disability community that's going to testify later on. Why isn't that resolved?

QUINN: Let me take all three here. I'm going to start with the accessibility piece. And I would say to you, Senator, actually pretty much shame on me because I've missed this point for the last period of time, and I'd be the first one to tell you that. But I also tell you that the accessibility community has really been denied the ability to get the tools that they want for years and years and years. And we are committed in a very different way of actually changing that paradigm and actually through a business process working with the offices that I mentioned earlier, OSD and ourselves, about completely changing the procurement process to make sure that they get consideration in the RFR. But before a contract gets signed or an acceptance of a piece of software is done that in fact this happens for them.

Now on the issues that we got in front of us, I actually have somebody that's been spending a significant amount of time since September 1st doing an outreach to all those communities, Free Standards Group and accessibility project for the Worldwide Web Consortium. And to that end, and we are a couple of weeks away from announcing this, but we truly believe that we are going to have a very broad community that is going to ensure accessibility to all these products that will enable the open format for anything that people would use to be able to create that open format, that they would have accessibility.

And I have committed to those agency heads three things. One, that we will create a memorandum of understanding so we would understand what it is we're going to do in terms of the standard piece. Two, that they would in fact be part of the all the testing, which generally doesn't happen when things are being built and tested, they get thought of as an afterthought. Maybe it's what they want, maybe it is not. And that three, nobody gets disenfranchised by this. And it's a deep commitment. The work that has been done to date, and there's more to come on this over the next couple of weeks, but there is a framework already done for supporting --

PACHECO: Could you speak just a little louder?

QUINN: I'm sorry.

PACHECO: Can you speak just a little louder so -- sorry.

QUINN: OK, no, not a problem. Sun, IBM and Adobe, just to name three, are working to create an international accessibility architecture standards that Sun has already contributed to the developing network. The architecture has already been built into Star Office and Open Office and Mozilla just to name a few. But what has not happened is the implementation piece. We are a couple weeks away from actually coming together with the commitment on a timetable that we'll make a very very public event. And actually put this in front of the accessibility community. Not only the folks in state government, the folks outside the state government. To see if in fact it is going to fit their needs. Which I think it absolutely will. But we're two or three weeks away from being able to firm that entire piece up.

The mistake that we did make, Senator, is we spent time talking to the agencies inside state government, to the outside development community, about proprietary software, but we did not reach out to the advocacy groups as we should have. And that one is my issue which I will deal with.

HAMEL: And Senator, if I may as well. Microsoft's been a great business partner for the state for many years. And I think a really good example of that, and that's one reason we'd like to continue to work with them. One example of that is in the mid '90s when our agencies representing the community of persons with disabilities were disappointed with the level of accessibility in Microsoft products, Microsoft worked with the state to improve their products for people all around the world. And we look forward to working with Microsoft to help them meet the new standards that we are currently working on.

QUINN: Now to the --

PACHECO: One second (inaudible) blame yourself or blaming. I think the process has been again my concern. We have a process here that came out in a memo to you I think dated September 26th, 2003. Have a policy that had been put in place and was given the green light to go ahead in November of that year. You had a Post Audit Committee hearing in December of that year bringing up some of these concerns. Talked about the MOU that you're looking to do now, which is good. That that's going to resolve some of the issues. But the Advisory Committee that came out of the legislative authorization of 2004 and actually recommended MOUs with not only with the Constitutional Offices to try to address these types of things. Wasn't done. Don't see the collaboration that it was what it should have been there. After that recommendation, the Constitutional Offices. There was an omission of the concerns of the disability community which you are now only addressing. The standard itself was released on Labor Day weekend.

HAMEL: Excuse me, Senator. It was not.

PACHECO: And it just doesn't appear that there was a cost analysis done prior to release. Let me just say that the Open Source movement, and I'll say Open Source. The Open Source movement started as I understand it with a group of software engineers who collaborated to develop an alternative operating system. There was an exchange of information. A transparent process to develop this new technology. That thrives on collaboration. This is perhaps one of the most democratic and transparent processes that I have ever heard of in the business world. And it is commendable. That what has been done with the Open Source movement. Yet quite frankly the process behind ETRM at least appears from my perspective to subvert the intent of the whole Open Source movement in terms of an open collaborative input-generating type of process. And that's what I know I am concerned about the most. I don't see that we've done enough of that. And it gets me to the last piece that I would like to question just a little bit about, and it's relative to the cost of the system. Let me bring you back to November of 2003. Was there a cost analysis done at that point in time, Peter?

QUINN: When we first announced the Open Standards and the Open Source piece of it there was not.

PACHECO: There was not.

QUINN: There was not.

PACHECO: So there was an Open Standards Open Source piece. And a decision on behalf of the Executive Branch from ITD headed in a different direction, that had the potential of impacting according to a recent cost analysis you gave me some 50,000 desktops in a completely different direction, and there was no cost analysis done at all. Why not?

QUINN: Let's back up for a second. When we announced the Open Standards, it was a policy to do two things. It was an outgrowth of the IT Commission to actually start to create standards around the Commonwealth because we didn't have any standards. And it was to start to bring order to the house. And by nature, order to the house, you're going to come as you start to come across, it should at the end of the day absolutely, as you do this on a replacement basis, actually lower your cost of doing business because you've got things that can talk to each other. You'll also recall that we separated the Open Source piece from the Open Standards and said to people treat Open Source as a best value technology acquisition. So each and every time you had a chance to replace or implement a new technology, you then looked at it at that point and decided was it an appropriate technology, one, could it meet your needs, and then two, under value when you talked about acquisition cost and ongoing long-term support cost, did it make sense to employ it. And that was an individual decision each and every time you came across.

So it becomes like most technologies. A point in time when you make that decision. So it was not this is the only thing you can do, no, do the analysis and make a decision about whether an Open Source or a proprietary product that both had to adhere to Open Standards made sense in terms of what it is you do from a technology procurement. So it is impossible -- go ahead, I'm sorry.

PACHECO: We met in 2003, before the Post Audit Committee. I thought we had this discussion about cost. And that we were going to get an analysis from ITD on what you envisioned the cost would be.

QUINN: No.

PACHECO: Now we're here two years later. And we just received one weeks ago. That cost analysis that you sent me and I have in turn sent the analysis over to the State Auditor's Office. Their IT Division. For analysis on it. Did you -- there were assumptions that were built into that cost analysis that were based upon going to say like Microsoft 12 that were built into the cost analysis.

QUINN: Right.

PACHECO: Why was that built into the cost analysis?

QUINN: Two things. We talked about a general topic. We did not talk specifically about desktops for formats in 2003. We're talking about formats, and what you asked is if you were to go and do something across the entire desktop structure, what would it look like. I gave you Office 12 but you could use 2003 because we use Office 2003 because it gave you the same price that we pay today. Now there's a couple of things that you need to keep in mind. The reality is this is not a static technology environment. Sometime over the next three to five years the entire 50,000 desktop number is a hypothetical number will be replaced in the Executive Branch. It happens as a natural evolution of technology. Every time somebody adopts a newer office product it requires a faster machine. And because of the migration strategy of the principal supplier in the Commonwealth, they actually negate what it is that you can do in terms of functionality and features. And very often means that you have to change the underlying operating system.

Having said that, I used Office 12, but you could take those same numbers, and I'm sure that the Auditor's Office will vet this to its finite penny here. But you can look at it. If you did hypothetically, I loaded up the costs and the costs are what they are. If you want to use 2003 that's fine. If you were to do a complete swapover all at one time. It's a transitional thing and the reality is you will spend that money, Senator, and proprietary thing. Sometime over the next three to five years. Because you've been doing it for the last 15 or 20.

PACHECO: You referenced earlier that one of the things the disability community had requested, and you had suggested at one point in time that Microsoft Office may be still included for a time. I'm assuming that there's still a fee there.

QUINN: No. The fee is generally it's a one-time purchase. For the most part the operating mode of the Commonwealth -- and it varies between agencies and branches of government -- for the most part they buy it one time and they don't do a maintenance agreement with that product. It's just the way things operate. Now will there be some around? As it is today, and this is the way the Commonwealth operates today. I'm sure it happens in your office. But two or three times a week I get something across my desk that I can't open. Because there are no standards. Sometimes maybe it comes from the outside.

The reality is because this doesn't apply to the general public, we'll always keep around a disparate number of software packages because we are required as government to accept a whole different set of things from the public of which we have no control and never will have any control. But if you look at the ability of -- and I'll use the one because you continue to focus on it -- on Open Office today, it can open up PDFs, it can open up Microsoft Word documents. It can all of those. And it can run on platforms that have been around for six, seven, eight years.

We don't have that same -- the term is interoperability to be able to get at this stuff from the Microsoft stuff. And we know that. We also know that people will send us stuff that we've got to be able to accommodate, and we're going to be in a position to accommodate it just as we do today because we have to handle a variety of disparate documents on a go forward basis.

PACHECO: So explain to me again the components that you look at or you're looking at as you go through this. With your cost analysis. Because I just (inaudible) that both in 2003, before an Executive Branch agency would announce that they're going to head in a particular direction, I don't know, I'm just assuming that there would have been a cost-benefit analysis as to whether or not this was the right direction to go. We talked about that in December. We had asked for some information. I think I sent you a communication on the 9th of September this year asking whether an analysis had been done. Is there an analysis. We talked to staff and we finally received an analysis which was only a two-page analysis.

QUINN: Right.

PACHECO: That was given to my office. Quite frankly I thought that the analysis as at least we've been able to look at it so far is wanting in terms of really looking at a detailed backup as to where these numbers are coming from in your report. Totals (inaudible) and I'm just curious as to how you went about measuring what these costs and benefits are going to be for the field. QUINN: Let me get -- yeah you can throw it in my -- I'm going to let her give her editorial comment afterwards if I could. The components that I gave you. I gave you two sheets. One, what does it cost. And I used Open Office as an example. What does it cost to buy Open Office versus what does it cost to buy the Microsoft product. And I said if you were buying new technology you will always buy the latest and greatest. The pricing I used was what we pay today for Office 2003. So there's two costs right there.

If we assume for a minute that because you're looking at something, you don't want to have outside folks that have looked at the early version and said we need a training on both sides. I said the training component is going to be equal on both sides. And we assume that across the board people would need introductory to how to do word processing and introduction on how to do Excel spreadsheets. Training cost numbers that are included in there came from HRD. It's the standard HRD pricing that they charge anybody inside state government. I also included that if you used a newer version of Office, by default you're probably going to have to exchange 20% of our desktops.

And if you look around the landscape you would see that we've got some very very old desktops that cannot run the new software. If you replaced a desktop, I assumed that you didn't replace the monitor or the keyboard and I used the base price of $500 per desktop to replace 20%. And the number that we were using is 50,000 desktops. If you replaced 10,000 desktops and you're putting on a new office product, you're probably going to need a new operating system. And I quoted the standard price that we pay for an operating system today, assuming that it was not going to be different in the new order. And I took all those costs and added them up. And those costs, if you remember, was $8 million for Open Office and it was $34 million to go to Microsoft. I also threw in labor costs. I'm sorry.

PACHECO: Go to Microsoft 12.

QUINN: Microsoft 12 but you can use 2003. I'll let the Auditor go and do the adjustment.

PACHECO: Well, no, it would be a big difference actually I'll assume. If you're looking at apples and apples. But go right ahead.

QUINN: All right. And so the machines you had to replace I put a labor cost of $30 an hour and it takes you an hour and a half to three hours to replace a desktop. And I gave you a range outside of that which was $450-900,000. And those are the baseline for those numbers. And those descriptors, you had one page that said these are the numbers. Who do they come from, what's the baseline of them. And then this is a spreadsheet that did the aggregate that put it out.

PACHECO: And how about maintenance?

QUINN: I'm sorry.

PACHECO: How about maintenance?

QUINN: Maintenance?

PACHECO: Maintenance.

QUINN: Maintenance I treat maintenance the same way everybody treats it today. People generally do not buy maintenance on an office product. But if you were to do that I would say whatever the maintenance over here, typically you're going to be doing it's an apples to apples. So you raise costs on both sides or you don't have costs on both sides.

PACHECO: One of the things that had struck me about the cost analysis -- of course we'll leave this up to the IT specialists over at the State Auditor's Offices. But any time that this Committee's looked at auditing or cost-benefit analysis, we usually take a look at the total cost.

QUINN: Absolutely.

PACHECO: And the total benefits.

QUINN: Absolutely.

PACHECO: Of alternative competing products. And also looking ahead at what the estimated maintenance costs or additional consulting costs, etc. may be in supporting different alternatives. It's interesting to me that in the cost analysis you didn't have anything in there in terms of estimated productivity options. Just a cursory look at what would take place say with Office 12 if we were to go there. Because we -- and typically what you do is don't put in something that you don't necessarily have to do to accomplish end goals. It's my understanding that we don't have to go to Office 12. And first of all, excuse me. My understanding that we don't have to go to Office 12 at all. And that all of the other systems can be updated under our existing agreements without any additional cost in terms of the assumptions made that we have to replace all the hardware, etc. And so we'll leave that to the IT experts in the Auditor's Office to take a look at that. But just from a management point of view did you take a look at the alternative choices available to you? And if so where is the backup?

END OF FIRST FILE

PACHECO: -- questions.

COTE: Just a brief statement if I could, Senator. Thank you very much. I appreciate the opportunity to speak with you today regarding this very important issue. My name is Alan Cote. I'm Supervisor of Records for the Commonwealth. Excuse me. Pursuant to Mass General Laws 66, I am mandated to take all the necessary measures necessary to put the records of the Commonwealth, the counties, the cities, the towns in the custody and the condition that is required by law and to secure their preservation. With guidance from the Records Conservation Board my office determines and establishes the records management policy for the Commonwealth.

For many years, electronic records management has been a primary focus of my office and of the Records Conservation Board. As a result, extensive changes have been made to the statewide retention schedules and new processes and policies have been developed exclusively to manage the state's electronic records. Let me assure this Committee that Massachusetts is not experiencing a crisis with regard to electronic records. Like every other state and the federal government, Massachusetts is in a period of transition from paper records to electronic records.

This transition, however, does not alter the basic fundamentals of records management. It may surprise this Committee to learn that the overwhelming majority of records created by government employees, electronic or otherwise, have a designated retention lifespan of seven years or less. As a record reaches the end of its lifecycle, steps for its timely destruction take shape. In fact, a well-designed and efficient program for the destruction of records, both paper and electronic, is vital to the success of any records management program. For the few records that are designated long-term retention, this office adheres to a rigid policy that calls for the migration of that record. This policy has been in place for many years. And is accomplished at the state's archives facility at Columbia Point.

The policy requires that every record that is forwarded to us is reviewed for archival content. If it is found in the record, the appropriate steps are taken to migrate and protect that record for posterity. And that is regardless of how that record is created or how it is saved. Preservation professionals under the direction of Dr. Warner, the State Archivist, convert all electronic records into multiple forms and formats. This guarantees the records' accessibility and readability for generations to come. The hardware and the software used in this process is selected by me, by Dr. Warner, by the Records Conservation Board and by the Archive staff.

We utilize many different types of software, both proprietary and nonproprietary. From many different vendors and using many different processes. This includes the introduction of metadata into the record to ensure its authentication. Above all, this process renders the issue of how a record is created moot. This process works very well. It provides us with the flexibility needed to keep up with ever-changing technology. It allows for the timely migration of data and the prompt preservation of our important records. A rigid policy such as the initiative before you that excludes any vendor or any process and relies on questionable, untested and unreliable practices or tools does not suit the Commonwealth well and will create substantial roadblocks to access and may very well result in many electronic records being lost or destroyed.

Let me just say that Secretary Galvin and I have always worked tirelessly to ensure that records of this Commonwealth are open and reliable to all persons regardless of the record's form or format. I urge you that you reject the ETRM Open Document Format initiative in favor of formal review. And I'd be happy to answer any questions you may have at this time, Senator.

PACHECO: Thank you very much, Mr. Cote. Obviously from your testimony you are more or less (inaudible) opposition to moving forward with this ETRM Open Document Format initiative at this time. While at the same time saying that you want to have further review of what -- I quote you -- a very complex and important issue. You heard I believe some of the conversation we had with ITD representatives here about the authority granted to both Public Records Conservation Board and ITD under Section 17 of the General Laws. To what extent are you in agreement or disagreement with the interpretation of that part of the package? When I asked the question, I reference what was on the website from ITD in terms of the authority granted that they can -- again just so that I'll repeat it just to make sure -- in case you didn't hear it earlier. But the section that was referenced and put out there for the general public to see was to the extent to which and the manner by which each Executive Department agency shall create, maintain, preserve electronic records (inaudible) contracts and methods of converting paper government records to electronic format. Basically referencing the section of law and then taking that one piece of that section and saying that's where the authority comes from. Your response, sir? COTE: Well, Senator, from Chapter 66, I think it's clear that Supervisor of Records for the Commonwealth has jurisdiction to oversee all the records management of the Commonwealth. That doesn't mean that we periodically don't allocate that to agencies or groups across the Commonwealth. It's absurd to expect one person to go to every city and town and every agency of the government and set their policy for them. So from time to time we will contact various agencies and various municipalities through the Records Conservation Board and ask them to give us their input into their records management standards and regulations as they see fit. They work with the records every day and we oversee that process.

When 110G was being negotiated between Atty. Hamel and I, we sat for many long hours and discussed this Uniform Electronic Transactions Act. It was implied to me at that time, and my understanding that that provision, 17A, would relate specifically and only to electronic transactions. It was asking ITD to help me and the Records Conservation Board oversee any new regulations that were going to be promulgated with regard to allowing electronic transactions for the Commonwealth. It was certainly not an abdication of our authority to approve any recommendations coming from agencies with regard to electronic records.

PACHECO: So your interpretation then would be that if your office has an objection to moving forward and if Executive Branch agency, in this case ITD, were to move forward, with a policy that is contrary to what you are recommending, that they would be in violation of the statute?

COTE: Absolutely. Absolutely. It is more of an advisory role to us. The Records Conservation Board and myself set policy. And if ITD felt that they were exclusive in this, I don't know where that came from. I expressed on several different occasions to Atty. Hamel that we were not in favor of this policy. That we needed more discussion. And that this was not going to be the Commonwealth's policy on this issue. But yet it was pushed forward and proposed to be the policy.

PACHECO: So Atty. Hamel and Mr. Quinn I presume were well aware of your position on this and the Secretary's position on public records provision, and you're saying that despite them being aware of your position, and how strongly as you have felt on this, they have moved forward anyway.

COTE: Correct. And respecting the attorney-client relationship I've spoken only with Atty. Hamel. I have not spoken directly with Mr. Quinn. So I don't know what he understood. But my opposition and the Secretary's opposition to this entire Open Document Format was clearly relayed to Atty. Hamel. That we were not in favor of this and this was not going to move forward. There was even some discussion about us moving forward. And a writ in Superior Court stopped this.

PACHECO: That's (inaudible) this time.

COTE: I believe it has at this time.

PACHECO: Has there been discussions with the Secretary A and F both past and present relative to concerns relative to this section?

COTE: I have not had any discussions with Secretary Kriss or Secretary Demarco. I know Secretary Galvin has met with both of them and discussed the matter with them.

PACHECO: So it's safe to say that this ETRM was not developed jointly. COTE: It was not.

PACHECO: Did you have any input into the process at all?

COTE: I was asked for comment on two or three occasions. But the policy seemed to be changing before my eyes. I wasn't sure where it was going or what it was going to be called. It started with Open Source and then went to Open Document and then went to Open Access. And it didn't seem like there was any kind of a comprehensive or cohesive direction for us to give input. So I was allowed to give input. But I wasn't sure exactly what they wanted me to give or when they wanted it.

PACHECO: So the collaboration was -- was there a collaborative effort at all? Or was it continually changing?

COTE: It was continually changing. And I was told at the very first meeting that this was going to be going forward, and they would like the Secretary to join them. But it was going to move forward.

PACHECO: So it was a decision that was made up front. And whether or not you thought it was good, bad or indifferent, was going to happen. That's basically what you're telling me.

COTE: That's correct.

PACHECO: And again, just for the record, do you or do you not believe that ITD has the authority, given the standards and the chapter sections of the law to move forward?

COTE: I think they share joint authority from their enabling legislation, not UETA 110G.

PACHECO: So let me revise the question then. Do you or do you not think they have the ability to move forward unilaterally?

COTE: No, I do not believe that.

PACHECO: You do not believe that. The Office of the Secretary of the Commonwealth in terms of this Advisory Committee that the Legislature had put forth and developing a process and moving forward, while we did not put that in our legislation, there was a recommendation that came out from the Advisory Committee to actually put in place a process, I believe they referenced an MOU, with the Constitutional Offices that were involved. To what extent did you have any conversations at all with the Advisory Committee or did anybody from your office or anyone attend those meetings or what can you tell us about that? COTE: I have not had any conversation with anyone regarding that MOU. My Chief Information Officer has attended two or three of those meetings when they were held. Sometimes notice is not given or the agenda is not clear. So he did not attend some of the meetings that I heard this was discussed. But our office's involvement in that MOU has been negligible.

PACHECO: The meeting schedule of the meetings -- the Committee went back and took a look at the whole range of meetings that had been held by the Advisory Committee since its establishment. And quite frankly they were infrequent meetings. And I think six of the last several meetings have been actually canceled. And they were all around the time period of just moving forward with this announcement as I had understood it. So you're saying there weren't frequently done meetings? Or were there? Or you couldn't speak to it personally because you have your IT person going to the meetings?

COTE: That's correct. That's correct.

PACHECO: Any questions? I didn't think you'd be as direct as you have been today on that section of the law or as certain about what we had assumed were the reading of the statute. And after you said that I really don't have a lot of other questions for you. Because what I'm hearing you say is that the agency, the ITD agency, has moved forward unilaterally and you do not believe as I'm hearing you that they have that authority under Massachusetts General Laws. Correct?

COTE: Correct.

BEVERIDGE: (inaudible) the Supervisor of Public Records here. A little unrelated but something that might be pursued I think in the coming months. And that is the issue of preservation of the records. And in the event of emergency, disaster. Had the opportunity to meet with the Archivist of the United States Congress. I know they're undertaking major mission in view of what happened in Mississippi. The court records are gone. Evidence is gone. Birth and death records are gone. I think (inaudible) obviously the solution involves IT and digitizing a lot of the records that we have in our (inaudible) our courts and across the Commonwealth and (inaudible) something I think we would want to be talking to you about in the future as to where we are on that, what kind of backup do we have for key records (inaudible) security systems (inaudible).

COTE: Be happy to discuss it with any time you can, John.

PACHECO: I guess one final question. And I thank you for being here and the work that you and the Secretary have done over the years in making sure the cities and towns and our state agencies and everyone complies with the public records laws of the Commonwealth of Massachusetts. Very important. I think you've always been out there trying to make sure that the integrity of public records are maintained. Where do we go from here? If there is a stalemate if you will in terms of jurisdiction between the Executive Branch agency and the Secretary of the Commonwealth, is there a motion that can be filed in court in terms of defining what the jurisdiction happens to be? Or what happens when there's that type of disagreement? And a statute that reads your agency and the Conservation Agency and the ITD agency? Or maybe we should change the statute? But --

COTE: Right. There is vague language in the statute to the remedy that may be available to the Supervisor or to the Secretary to pursue. I'm not sure at this time if the Secretary wishes to do that. I'll have to meet with him to discuss the results of this hearing.

PACHECO: Well, if you could possibly get back to us on this as we move forward, I have simply asked ITD -- you heard my concerns earlier because I was concerned about the process. I was concerned about hearing this behind the scenes. First time I heard about -- he gave us written testimony. And it verifies what I've been hearing, what my concern has been. I am more concerned about this quite frankly than I am relative to which technology you're using, on my for example of which car somebody's driving as long as they can get it in the parking space. That's fine with me. But we have a process here. We have the integrity of a process that should be maintained. We have laws that are supposed to be obeyed when we're moving forward. The Legislature, that is, put forth an Advisory Group in 2004 that is supposed to be advisory yes. But more importantly a collaborative process. And that was certainly the legislative intent in that. There's nothing that as the two other cases I referenced during the hearing that would prevent that collaboration from being undertaken by ITD. And unfortunately I think while there have been some calls back and forth and while there's been a few meetings, etc., that to the extent we talk about collaboration I just haven't seen (inaudible) we're going to take just literally a two-minute break and come right back with testimony.

COTE: A literal two-minute break.

PACHECO: Five minutes.

END OF SECOND FILE

PACHECO: Let us go next. We would invite Massachusetts Office of Disabilities. Myra Berloff, Executive Director, and (inaudible) not even going to try your last name, General Counsel (inaudible).

F: (inaudible).

PACHECO: (inaudible).

BERLOFF: Hello, Senator Pacheco. Thank you for giving us an opportunity to speak with you today. I think that my testimony actually is going to go directly to a number of the issues that you had asked earlier as well. I appreciate the opportunity. I as you know am the Director of the Massachusetts Office on Disability. We're the state agency that's charged as the Americans with Disabilities Act coordinator for the Executive Branch of state government. And in that role, we provide technical assistance and guidance on state and federal disability laws and regulations and any issue that's related to business, to municipalities, state agencies and boards throughout the Commonwealth. Our goal is to be a resource both to the community of people with disabilities and to state government. That enables us to bring issues such as this before you today. And hopefully to bring these issues to the table so that they can be resolved in a timely manner.

MOD became aware of ITD's plan to standardize computer operations on products that accept native Open Document Format at the same time as the general public. When Enterprise Technical Reference Model V3.5 was published for public comment on the ITD website in early September. MOD reviewed the draft and submitted comment to ITD. Our comments at that time expressed concern regarding the availability of products in the Open Standards arena with comparable accessibility for people with disabilities to those products that we're currently using today. I've attached my comments that we sent to ITD with my testimony. That same day that we submitted the comments, we were contacted by ITD to ask them to work on specific or to identify specific accessibility needs for people with disabilities. Our initial effort has been to assemble some of the best minds within state government to analyze the current state of accessibility of Executive Branch computer-based systems. Strictly the Executive Branch technology. And to begin the process of comparing our current state of the art with that which is available currently in the Open Standards community.

As I stated in my comments in September to ITD, Massachusetts has always been one of the states that's referenced as a leader in government. True to that designation, the Commonwealth recognized its early obligation to accommodate the disabilities of workers and consumers in the IT arena. In the early 1990s, it was the threat of withdrawing Massachusetts business and bringing a host of other state and federal counterparts with it that ITD in partnership with the disability agencies convinced Microsoft to develop strong accessibility standards for its products.

I appear with you today before you today with absolutely no hidden agenda. We've entered the discussions as neutral insofar as which platform the Commonwealth chooses to use. We're concerned that we not take an unintended step backward toward closing off access to government information and government jobs for people with disabilities. As state government, we are obligated to ensure that we can effectively communicate with people with disabilities. Our concern is that whatever platform is chosen, it must afford the same accessibility to people with disabilities as it does to the general population. We currently are using software that although it might not be perfect provides a level of accessibility which allows people with disabilities the opportunity to work and gather information independently.

Although the implication of limiting accessibility of information technology to people with disabilities is currently being tested in the courts in other states, certainly within the court of public opinion it would be fundamentally wrong to move from applications that provide access for people with disabilities to ones which provide less. We're pleased, we really are pleased, that we're now working with ITD and have submitted initial recommendations to them. We look forward to continuing the process and are hopeful that the discussions will result once again in affirming the status of the Commonwealth of Massachusetts as a leader, not only in technology but as a leader in ensuring the equal protection of all its citizens.

PACHECO: Thank you very much for your testimony. Barbara, do you have any further testimony?

F: No, Senator, I don't.

PACHECO: OK. Thank you very much. I have a few questions for you.

BERLOFF: Sure.

PACHECO: In your testimony you stated that, and I quote here, that MOD became aware of ITD's plan to standardize computer operations on products that accept native Open Document Format at the same time as the general public.

BERLOFF: That's correct.

PACHECO: So there was no consultation ahead of time?

BERLOFF: That's correct.

PACHECO: Even after the disability community in general had raised some concerns early on. But you found out about the actual policy being announced when the general public found out.

BERLOFF: The actual implementation yes of the ETRM.

PACHECO: And right now workers in the disability community here in the Commonwealth and people that access state government would have a Windows-based information technology, is that --

BERLOFF: Primarily yes.

PACHECO: Today. And what assurance, what have you been told thus far would take place, in terms of the now collaborative arrangement to work with ITD?

BERLOFF: We've been holding meetings for approximately the last six weeks with representatives from Mass Commission for the Blind and the Mass Rehab Commission, the Mass Commission for the Deaf and Hard of Hearing and along with ITD. And we have been given assurances that we will not implement technology within state government that isn't at the same level of accessibility that we are currently using.

PACHECO: And in your testimony you're saying here our -- this is after these meetings have taken place obviously, you've written this testimony dated September 8th. Our experience, quoting you now, our experience has led us to be apprehensive that the approximately 15 months between now and full migration to this new standard is insufficient amount of time to allow adequate resolution of disability access issues raised.

BERLOFF: That's correct.

PACHECO: So you think that the January of 2007 date is just an unrealistic date at least for the people that you have a responsibility to represent.

BERLOFF: Right. I have to tell you I'm lucky I can turn my computer on. So I don't understand the development of technology. But I've spent time speaking to those people who do. And I'm told that this is a very optimistic timeline. In fact I think that the community of people that I represent actually support the enrichment of opportunity to purchase various forms of software. We really don't care. Like you as long -- I don't care what car you drive as long as you can park it, well that's exactly a wonderful analogy. We really don't care. Our concern is that the timeline be realistic so that not only are the programs developed but that they're tested, that there is proper support in place to provide training. Not only to the people that install it but to the end users. That there's support in place.

PACHECO: So if you hadn't found out about this until it was announced to the public, certainly there was no conversations then that I'm assuming were made in terms of costs, in terms of training, in terms of what equipment would need to be changed, etc., right?

BERLOFF: Correct.

PACHECO: That's correct?

BERLOFF: Yes that's correct.

PACHECO: So then if those conversations were not held with the Office of Disabilities, which is a major concern here in terms of our state Executive Branch agencies, or at least should be, then those conversations weren't held with people that would know best in terms of budget of the Office of Disabilities and it would be very difficult to say that that was part of the total cost analysis. If one component of the cost centers in Massachusetts were not spoken to at all.

BERLOFF: I can't speak to that, so --

PACHECO: Yeah OK. Well, I really don't have any other questions except to say how many people throughout the Commonwealth in the Executive Branch would you say would be impacted in one way or the other by this procedure?

BERLOFF: I knew you'd ask that question.

PACHECO: You did?

BERLOFF: And I figured you would. And there's really not a good answer for that. Because we don't keep track of the specific number of people with disabilities. But I can tell you that assistive technology is used by people who very well may not identify as being a person with a disability and need it. There are all kinds of --

PACHECO: Well --

BERLOFF: -- assistive technology like contrast of your screen, raising the font size or using an adaptive mouse that people just use because they're used to it. The statistics of the federal government say 19% of the population are people with disabilities. And those are people that self-identify with the community. I would venture to say more than 19% of the state employees are using some kind of assistive technology. Simply because there are quite a few that are a little bit older. And they're using things that they wouldn't relate to as that.

PACHECO: So anyway, safe to say from 18, 19, 20%, not quite sure, but you're using a national number.

BERLOFF: Right.

PACHECO: Self-identification in terms of the disability community. And so that's a percentage of the general public or percentage of the state employees?

BERLOFF: Well, that's the percentage of the general public that's determined to be people with disabilities. And unfortunately we know that the employment rate amongst people with disabilities is much lower than the general population. It's only about 30% of folks with disabilities who want to work actually are working. So you couple that with taking that opportunity away from people who are working productively. And we're looking at a pretty egregious factor.

PACHECO: Thank you so much. If you would like to at another time or -- to supplement your testimony with any further information to the Committee or any estimates that you may have in terms of your own cost center, in terms of your own budget internally and what you can estimate in terms of training, those types of things, speaking to your own IT people within your agency, we certainly would be better-informed.

BERLOFF: OK.

PACHECO: By the information that you can provide us.

BERLOFF: See what I can do.

PACHECO: Thank you.

BERLOFF: Thank you.

PACHECO: Thank you very much. And if you could also just -- just as you're going along, maybe we could check in -- we'll contact you with some updates as to how the discussions are going as we move forward.

BERLOFF: Be happy to. Thank you.

PACHECO: Next we would like to call Disability Policy Consortium, Jerry Barrio, President, Bay State Council of Blind, and John Linsky, Boston Treasurer, Disability Policy Consortium. And it's my understanding that before you give testimony that you'd like to --

LINSKY: We can do it afterwards.

PACHECO: You want to do --

LINSKY: Yeah, Jerry needs to do it. So if that's good with you.

PACHECO: All right. Thank you very much to both of you for being with us today to give us your perspective on this very important issue that is facing the citizens of the Commonwealth but in particular the citizens that you represent. So the floor is yours.

BARRIO: Thank you. John.

LINSKY: Yeah.

BARRIO: OK.

LINSKY: Yeah.

BARRIO: Well, I'm delighted. I'm honored to be here. I'd like to echo most of -- well, probably all of what Myra Berloff has said. I'm speaking for the Bay State Council of the Blind, which is an advocacy organization. I'm also speaking as a consumer. As a consultant who does work with a couple of state agencies training people who are blind on the use of computers and computer equipment. And I'm speaking also as a person who worked for many years in an office environment. And I grew up with the evolution of the computer. I've used everything from Unix and DOS and Pine and Pico and all those things that some people may be familiar with in the past. And I'm now working in the Windows environment. I know without reservation that the level of access I have the luxury of today far exceeds anything that has been available in the past. I can use Microsoft Word. I can interface that with Microsoft Excel. I can use the Internet and I can do email. I can use all those programs in combination with each other.

And by the way, I do much more than just read my email and read documents with my technology. I have created spreadsheets for years. Analyzed reports. Done many other things that go way beyond perhaps the typical use of technology.

And I might say that I think people with disabilities, particularly people who are blind, while the technology may be an option for other people, in many cases it's the technology that represents the only means we have of accomplishing tasks, be they simple tasks in the office or be they more complicated things.

I want to say that we oppose this change and will continue to oppose it until we can be convinced that it will not have a negative impact on either state employees with disabilities or consumers with disabilities. We have faced situations in the past many times where an entity has said to us well let's get this new program up and running and then we'll make the changes necessary to make it accessible for you. And I want to say that looking at accessibility after a change has already taken place is kind of like building a house and deciding to put a wheelchair ramp in after you've already constructed the porch and the steps and the driveway and all those other things that may make it difficult. And may need to be removed to put the wheelchair ramp in. Accessibility sometimes cannot be achieved after the fact where it may have been able to if it were included from the ground up in the planning and the development of a new process.

In those cases where accessibility can be achieved after the fact, it is always more expensive. So we're very concerned that our accessibility needs be considered right from the beginning rather than later on. It must be an integral part of the planning and development of this process.

And by the way, there are various aspects of software and technology that have been noisome to us or difficult to deal with. Probably one of the most problematic has been the PDF platform. While PDF in itself has been made somewhat accessible by Acrobat and by the producers of screen readers for the blind, in order for a PDF document to be accessible with a screen reader, which is what I and others use to access documents, that document must have been created with the latest in technology and accessibility guidelines in mind. And I'd venture to guess that 90% of the people who create PDF documentation don't even know that those accessibility features exist. So this is something that's very concerning to us.

I learned just recently that the Labor Department has -- while they've seen some success with Open Document Format, they've moved away from it in one of their most high-visibility projects which is www.disabilityinfo.gov, which is obviously a disability initiative. Knowing the reasons that they moved away from it has to do with a lack of technical support for the Open Source document platform. They believe, and I do too, that Open Source is still in its infancy and that the support that is needed by people with disabilities just is not there yet. I believe that if this change is going to take place and we're going to have accessibility, it's going to require that the state establish a long-term entity whose job -- full-time job -- is dedication to this process, to making sure that things remain and continue to be accessible.

We've struggled through numerous ups and downs in the technology industry where the screen reader software has tried to keep up with changes in technology. And we want to do everything we can to ensure that this will not be another bad situation for us. Because it really speaks to people holding jobs. It speaks to people with disabilities and their livelihoods. It's a matter of our civil rights. Thank you very much.

PACHECO: Thank you very much, sir, for your comments and testimony. What would be helpful to the Committee, to the entire Committee (inaudible) will be helpful that we get your comments provided in a way that we can all partake of your comments. If you could maybe get us a copy of that, the organization could get us a copy of your written testimony, that would be very helpful to us.

BARRIO: I'd be happy to do that. Do you have a particular format in mind?

PACHECO: Yes.

BARRIO: I'll be happy to do that.

PACHECO: That's very good.

BARRIO: Thank you.

PACHECO: John?

LINSKY: Senator Pacheco, members of the Committee, I want to thank you for the opportunity to be here today. My name's John Linsky. I'm an officer with Disability Policy Consortium. The DPC is a cross-disability organization dedicated to ensuring people with disabilities have a voice in the development of public policy here in Massachusetts. We're here today because we are alarmed with ITD's plan to move all of the Executive Branch to the Open Document Format. Most distressing of all has been the blithe dismissal of any criticism by ITD in general. And Mr. Peter Quinn specifically.

Our second concern is that this decision will have a strong negative economic impact on many people with disabilities, while for others it will potentially cut them off from government information. The process of moving to ODF was made we believe by too few people without due consideration of its impact on our community. Indeed, consider how we learned of the decision to move to ODF. In the public comment period. As a self-described techno junkie, I subscribe to a national online newsletter for IT professionals. Published by Ziff Davis. The headline one day in mid August (inaudible) Massachusetts Decision to Dump Microsoft and to Move to ODF. My first reaction was to wonder for a moment if there was a second Massachusetts. We organized our community, particularly the blind community, in sending testimony. We also had our Executive Director, William Allen, request a meeting with Mr. Quinn so we could share our concern. We received no response to numerous requests. Indeed, only after the public comment period closed did we receive a phone message from Mr. Quinn that he would get back to us shortly about a meeting. That was on September 11th or 12th. Mr. Quinn, we still haven't heard from you.

So why are we so concerned? We're concerned because many people with disabilities rely on screen readers, screen magnifiers, voice recognition, adaptive keyboards and other adaptive equipment. Which will not currently work with Open Source software. And Open Document Format. Currently on the Microsoft platform more than 300 pieces of adaptive equipment or software which can assist people with disabilities are on the market.

Right now implementation of ODF and Open Source would mean that any state employee using such software or equipment would be unable to use the state's computers. Unemployment among people with disabilities is staggering. Only about 25% of people with disabilities have full-time jobs. Another 10% are employed part-time. The Commonwealth is one of the leading employers of people with disabilities and indeed had a target of 12% of employees being people with disabilities. We literally cannot afford the loss of employment opportunities for our communities.

When I found out about the decision to adopt ODF, I contacted the Massachusetts Rehabilitation Commission, officials at the highest level in the agency. They were unaware of ITD's decision. Indeed they asked me to email them the article. As far as I know, the Mass Commission for the Blind also was not aware. These two agencies are responsible for providing job training and placement for people with disabilities. Not only that, but they have through the years purchased hundreds of thousands of dollars' worth of equipment for employees with disabilities which will now be rendered useless. This is almost now, the decision to involve MCB, MOD, MRC, like an opponent watching Vinnatieri walk out to kick that last second field goal. I now feel like we're in the closing seconds, and suddenly the office is saying oh yeah we better think about people with disabilities. Also I might say we are very reticent about a decision being made solely by state employees that represent people with disabilities. Dissent in the Romney administration is about as welcome as the snowstorm was on Saturday. You don't disagree and keep your job. Now you may be told today drivers can be developed to work with Open Source and our equipment. But that will take time. In fact it can take years. Promises can be made but they can be broken as well. Open Source currently is run on about 3% of all desktops in the country. People with disabilities are also a small percentage of the population. When you combine those two small subsegments of our society, there is no reason for the private market to develop accessibility. It will only be through their generosity. And even if it is developed, the consumer will be left with limited choices. They may only develop one screen reader and say here it is, use it. So we will not have the option of testing different equipment.

Lastly, the state has a poor public record of making information accessible to people with disabilities. The state historically publishes documents in PDF. I believe Jerry already told you what a labor that is for people who are blind to access. The Virtual Gateway 1 and 2 are still not accessible to people with disabilities here in the Commonwealth. Which is probably a violation of the law. In conclusion, I'm a techno junkie. I use Mozilla. I use other Open Source software whenever I can. Because I don't like a monolithic company either. But I will tell you that this decision is being made rashly. It will have a negative impact on people with disabilities. We were not consulted, we're being closed out again, and we do feel that we may need to seek an injunction in court to stop this if it proceeds. I thank you.

PACHECO: Thank you very much, John, for your testimony. And again we'll try to get a copy of your testimony.

LINSKY: I will make it available within the week.

PACHECO: Great. Thank you. Thank you very much. Just a couple of questions. I thought I heard the answers in the testimony. But Jerry, again, when did your organization, Bay State Council of the Blind, or do you know if the Mass Office of the Blind or other organizations that you're associated with reach out to contact Mr. Quinn or ITD relative to this decision?

BARRIO: Yes. We immediately when we read the newspaper coverage Labor Day weekend, the Disability Policy Consortium and the Bay State Council of the Blind got together and a number of us called. We also emailed and we wrote a letter to Mr. Quinn's office immediately at that point.

PACHECO: Subsequent to that, what's been the discussions thus far?

ALLEN: Senator, my name is Bill Allen. I did the letter requesting an urgent meeting with --

PACHECO: Yes.

ALLEN: -- Mr. Quinn. We did subsequently after the close of the open comment period get an email and a phone call message from him saying he'd be in touch. Within a few days. That's been it, other than an exchange later in the month saying how long is a few days.

PACHECO: OK. All right. You heard the testimony earlier from the Office of Disabilities, which quite frankly I was impressed with the independence of being able to come forth and say that they didn't hear about it until the same time all you folks heard about it. That shows some independence. And for the record I hope you don't see any negative things happen as a result of that. I think it's important for the general public to have agency heads that are representing particular constituencies in the Commonwealth be able to come to a hearing like this and speak freely. And standing up for the constituencies that they're supposed to be representing in that role.

LINSKY: I meant not to disparage MOD but I will say that a certain other agency head of a disability agency has to be accompanied by a member of the Governor's Office when he speaks in public.

ALLEN: To legislators.

LINSKY: And we've observed it's had a chilling impact on any exchange of information between our organization and members of the administration.

PACHECO: Yes. Well, thank you very much, both of you, for your testimony. And I understand you want to show us an example --

M: (inaudible) screen reading software called Jaws.

PACHECO: OK.

BARRIO: This'll be just a very brief demonstration. I just want to demonstrate that using Microsoft Word is very accessible. It speaks to me when I write the word hello. It says hello. Not only can I read the word, but I can determine what the font is. It's 12-point Times New Roman. I can change the font if I choose to. I can make it bold. I can center it. The fact is that I was able in the office where I worked in the Gillette Corporation until recently to edit other people's writing to the extent that they would come to me to find the typos that other people missed because the screen reader that I used, which works only in a Windows environment by the way, it's by far the most commonly used one, is so accurate, pronounces so accurately, that I can find typos that the person using their eyesight will miss. So the whole point of this is simply to say that it is very accessible. It requires some training, but certainly not extensive training for a person who's blind to be able to be effective with the computer. And it opens up an entire world that was hitherto unavailable to us. I can go look up a word in the dictionary on my computer. I can look up a recipe. I can look up legal documentation. I can do my grocery shopping online. I can do things all in the Windows environment. And I certainly have no -- Microsoft certainly hasn't paid the Bay State Council of the Blind a penny. But I'm not a Microsoft basher either. I will use whatever works well. And right now it's the best (inaudible) for us. And therefore I hope to be able to continue to use it. Until something better comes along. Thank you.

M: Let me just try to find a document -- some reason on this (inaudible).

BARRIO: This has nothing to do with the screen reader part of it.

M: It's because you're sitting with the projector.

M: OK, thank you.

PACHECO: All right. Well, thank you very much. Thank you for your testimony and please stay in touch with the Committee as we move forward and address. Next the Committee will call John Beveridge, Deputy Auditor, IT Audit Division. Thank you.

BEVERIDGE: Senator, good afternoon. I hope everybody can hear me. I'm John Beveridge from the State Auditor's Office. I'm the Deputy State Auditor and to my right is Bob Buchanan. Bob is an IT Audit Director Manager who will be responsible for this particular audit. So he will be the auditor in charge, and I thought I'd bring him up so that it would be a face with a name and a name with a face. Our audit essentially starts tomorrow afternoon. We have our first meeting with Mr. Quinn. And I believe members of his team. We tried to get a kickoff meeting earlier this week but due to scheduling problems that did not occur. What I want to comment on is my initial reaction to the two-page cost analysis. I viewed it as a high-level starting document, and not something that I would deem as a cost-benefit analysis, and right away immediately the series of questions come into play as to what the assumptions are behind it. I did want to comment on a couple of items.

I too learned about this actually from an article in the newspaper when I came back from vacation in the end of August. And not as a member of the IT Advisory Board. Because the State Auditor's Office is more of an invited guest to those particular meetings. And the ones that they've had, at least as far as I know, are the ones that I've gone to. And what I learned was that there was a proposal. Both Bob and I took a look at the proposal and submitted feedback on September 9th. And at that time our concern was what are the costs, what's the analysis behind the costs. We also feel that the objective of having documents available into the future is a good objective and that there may be some real benefits. However, without the analysis it's difficult to tell whether or not those benefits are achievable and are realistic.

One comment I wanted to make was also in terms of the IT Advisory Board. I think the concept is excellent. And I would really urge having all of the Constitutional Offices become permanent members. What I'd like to see is that the Board actually sits and takes a hard look at the real IT strategy, not something that is a year or two years or three years old. But where we currently sit. So that when we look at proposals such as this we can see how it impacts a particular segment of the technology that's enabling certain business processes within the Commonwealth. Certainly there's a significant growth in electronic documents. Our belief is that part of the approach to this has to be developing appropriate information models in terms of syntax rules and what we call things. And a large part of that are management costs. That need to be addressed. Clearly in our audit we're going to focus not just on the cost but also on the process. And I think that that's an area that we may have some future comments on. So with that I'd like to end my comments and open it up for questions.

PACHECO: Thank you very much for your willingness to be here in person. I know that it's an awkward position to be in because you haven't conducted the audit. So you don't really know what the outcomes are going to be.

BEVERIDGE: Right.

PACHECO: And what I'm curious about, and I was struck with the same thing looking at the initial document that we received, looked like it was a good beginning of assumptions that may in fact end up with those numbers. But without having a lot more information it would seem to me to be something that would need a lot more work before I would feel comfortable in cost-benefit strategy.

BEVERIDGE: That's correct. My hope is that the cost-benefit analysis is not something that we retrofit to support a policy direction. But the cost-benefit analysis is something that serves as the foundation for where we go with a policy direction. So it's that I hope that we'll get a view of that when we get together with Peter and his crew.

PACHECO: Right. So what types of -- would you think for example, just give you one example, just play it out right in front of us, wasn't anything quite frankly (inaudible) questions but just take a look at one small piece of cost center, the Office of Disabilities. If the Office or various cost centers were not contacted, there were not conversations that were made in analysis of what the costs would be, the training would be, the equipment, so on and so forth, could any cost-benefit analysis that's done at the end of the day if it's not including all the components be accurate?

BEVERIDGE: No. It would be insufficient. I think what you have to do is you have to look against the entire IT landscape, where you are currently and where you're planning to go. That means each entity as well. And then look to see how the new initiative would map against each one of these to see if there are any adverse impacts across the entire environment. I learned a lot quite frankly sitting here through this afternoon. And it's certainly not been in any way ill use of my time or Bob's time. I learned a great deal from the previous folks who came up to testify. And I think the item that we learned is that the technology should be something that helps and enables people and individuals achieve the objectives of their particular business function. I think there's probably some merit to the idea that there's a certain number of employee functions that don't use a lot of the sophisticated bells and whistles. I'd be concerned about whether or not the idea there is to take away certain capabilities in technology. I'm not so sure that there aren't other ways of doing it. I don't know. So part of that I'd like to take a look at what the alternatives are. And that's where a cost-benefit analysis should come into place. I do think there are some strong benefits in terms of Open Document as a standard. I like some of that and I'm sitting on the fence in regard to it. But that's very different from a January 7th deadline to move things into place and what the impact would be across the Commonwealth. And I think those questions I hope Bob and I will be able to answer and get back to you in a reasonable period of time.

PACHECO: One of the things that I had hoped that you could take the opportunity to analyze while you're doing this audit and investigation into the process as you reference, in particular, Bob, this would probably be more in your sphere, certainly than I know mine. Relative to what the options around the technology actually do now. Quite frankly I have met with several industry groups. And you're not going to believe this. And some of the industry groups probably won't believe it either when you hear it. But it's true. I've literally had meetings with industry leaders who are supporting the policy. At least three out of four of them have told me slightly different stories as to what the strategy actually would accomplish in terms of their own problem delivering. Which was amazing to me to listen to it. A group of people that were all supporting the policy that were taking slightly opposite viewpoints in supporting the policy. Does your product do XYZ. Yes it does. Another group comes in. I understand this does XYZ. Oh no, they only do X and Y. And so you get put into a position where you quite frankly don't know who to believe. And that's why we do have an Auditor's Office which is independently elected by the citizens of the Commonwealth to take a look-see at what the Executive Branch is putting on track. In this case quite frankly quite quickly.

BEVERIDGE: Yes.

PACHECO: In terms of moving something forward. To the extent that some agency heads within its own Executive Branch are not even aware about it until it hits the paper.

BEVERIDGE: Right.

PACHECO: And that's stunning. That that would be how fast we're moving forward with an agenda that may or may not be all of what it's cracked up to be.

BEVERIDGE: Right.

PACHECO: And that's why I was hoping that voluntarily this Executive Branch would be willing to hold off just a bit. Maybe a month or two. Until the Secretary of the Commonwealth had an opportunity to weigh in. Once this --

BEVERIDGE: Right.

PACHECO: -- policy was out there publicly. That your office, the IT Office, would be able to really take a look at this and see (inaudible) to ensure they're all our public documents are readable and we can maintain the integrity of public records. And obviously I would think the Supervisor of Public Records might have something to say about that.

BEVERIDGE: Right.

PACHECO: And that our agency here in the State Auditor's Office, which responsibility it is to look at these IT (inaudible) would be able to give us some independent direction here as a state legislature. And quite frankly we haven't received that. We've got all self-serving perspectives that have come forth in terms of the industry groups. I think they're all right, we've got some great Massachusetts companies here, certainly nobody needs to speak for Microsoft. But I certainly have met with Microsoft. I've met with IBM. I've met with Sun Systems. I've met with just about everybody that's involved here. And they're all great companies, they have tremendous opportunities and we want them to do business in Massachusetts, we want them to expand and do well. But it doesn't necessarily mean that -- listen, every group is going to tell us what their spin on it is. For their own interests.

BEVERIDGE: Right.

PACHECO: And I don't blame them a bit. But what we're asking you to do in particular is to try to give us some independent feedback. I know that's what you always try to do.

BEVERIDGE: Right.

PACHECO: And I thank you for that because you help educate us about some of these issues that are yet to be understood fully. So sufficient information, I'm hearing, is not totally there with the cost-benefit analysis at a first glance that we've taken a look at. And you're going to try to have an in-depth analysis --

BEVERIDGE: Well, my hope is that'll be forthcoming starting tomorrow.

PACHECO: Good.

BEVERIDGE: It's the hope.

PACHECO: And in terms of the timing, say worst case scenario in terms of this type of an audit looking at --

BEVERIDGE: Probably be one month after the deadline of implementing the policy would be February of 2007.

PACHECO: Yeah.

BEVERIDGE: Would be the worst case. Let's hope that's not --

PACHECO: But we don't want that.

BEVERIDGE: We don't want that.

PACHECO: No.

BEVERIDGE: I would think it's probably going to take us a couple of weeks to see what's there and what the depth of analysis is. I think we need to look across the landscape in terms of the IT strategy for the Commonwealth and how it impacts other strategic initiatives. I would think we'd have a pretty good idea probably after a couple of weeks what that timeframe's going to look like. If it looks like to get to a long-term highly detailed analysis I think the best avenue is to do an interim report so we get some of our thoughts down in writing and get them back to you within a reasonable period of time.

PACHECO: It certainly could be at least hopefully an interim report, all depends what definition you want to give to reasonable is. Period of time. Just trying to ascertain whether or not we could have any faith in the document we have now.

BEVERIDGE: Right.

PACHECO: And that is before us. Based upon who the Executive Branch has actually talked to. What systems they put in place to do their own cost-benefit analysis. And what timeframe they used. So we certainly would appreciate. Any comments? Any final comments or comments relative to the IT piece of it at --

BUCHANAN: Sometimes when you're digging into things and it expands and you go talk to a lot of people, the more you talk, the longer it takes. But one of the problems you have sometimes is just to keep a tight rein on what you're looking at. So if you're interested in just the cost part of it or the timeline we'll try to do that. The whole issue is fascinating.

PACHECO: Yeah.

BEVERIDGE: Yeah. I think the cost issue and the process part are what I hear is critically important.

PACHECO: Yeah. Cost and process is extremely important. And to the extent that your office would be involved with it I don't think it's a necessity talking about the legal authority --

BEVERIDGE: Right.

PACHECO: -- of the agency. Because we've already had opinions come forth from --

BEVERIDGE: Right.

PACHECO: -- Secretary of the Commonwealth's Office, which has indicated to us on the public record that they really don't believe that ITD can unilaterally move forward on its own.

BEVERIDGE: Right.

PACHECO: And be in compliance with state law and regulations. So but I thank you very much.

BEVERIDGE: Our pleasure.

PACHECO: That's the conclusion of all the witnesses that we were going to have before us today. We did tell Mr. Quinn that at the end of the testimony if he would like to add anything else we certainly would allow him to do so. So if you would like to do so at this time.

QUINN: (inaudible) Senator.

PACHECO: (inaudible) up would you go after that?

QUINN: Yeah I would.

PACHECO: Yeah you would. Oh. So thank you very much for all of you being here and the Committee -- let me just give you a little heads up as to what we're going to be doing. Committee on Post Audit will be reaching out to some of the individuals that have testified here to try to follow up on public testimony that they have given us. We'll be looking to further supplement that testimony and the written documentation that we would need. We may be in touch with various industry groups to follow up on what we find out in terms of what the Auditor's Office has to say. We want to be in touch with the IT folks as this audit goes along. And we certainly want to continue discussion with the disability community to see how the process is moving forward in terms of discussion to meet the needs of that depending upon which number you look at, the 12 or 18 or 20% of the workforce here in Massachusetts and trying to make sure that their needs are met for the general public. And as we move forward with this policy.

One final editorial comment that I would like to make on the record is again this Committee has called this hearing -- and I've said this with all the industry groups that I've met -- not because of technology issues. While that is certainly a concern and we're learning more about them, and we look to IT (inaudible) to ensure that we're going to get what we're actually asking for at the end of the day, we called this hearing for a number of reasons. Number one, we wanted to get clarification of the interpretation of the statutory authority of ITD. We heard on public record today ITD's position that they can move forward unilaterally, period. And we heard from the Secretary of the Commonwealth's Office that they cannot. Legally and be in conformance with state law and regulation. We have a problem. We reference the second point why we called the hearing. Process.

Again, in keeping faith with what the Open Source community itself has put on the table every time they have approached me about being open, having see-through type of system, democratic process, from what I heard here today we've had far less than a democratic process. When state agencies in the same Executive Branch find out about a policy that's going to impact a large segment of their own workforce and the people which they serve on the day the announcement's made. That to me is far from a collaborative effort. In terms of the process. And then finally we called this meeting because of the potential costs. We were going to be moving forward with an initiative. We have to take into consideration what is the cost going to be. And the impact on people in the Commonwealth. Because those costs have an unintended consequence with other agencies in terms of funding other agencies, what do we have in our IT barn, what do we have in our budgets. The Ways and Means Committee, which I sit on, I thought surely the staff would have had some kind of discussion with staff of ITD. The first they found out about it is when I told them about it. So the third reason why I'm calling the meeting is the costs we found out from just briefly here from the Auditor's Office that if you're not looking at all the cost centers, if there's not some kind of at least basic conversation that's gone on to get some estimates, that any analysis we have right now is really deficient. So on the three areas that we had concerns about we found that there was in fact reason to be concerned. And so we again asked on the public record Mr. Quinn to consider putting a pause, a hold on moving forward until the respective offices here in the Commonwealth, Office of Disabilities, the State Auditor's Office, Secretary of the Commonwealth, have an opportunity to really sit down, collaborate as the word collaboration was meant to be under the legislative authorization that was given in 2004. So with that I thank you all and good day. Meeting's adjourned.

End of MA Senate ODF 2005-10-31


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