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NASCIO 2024: Minimize AI Use in the Government Workplace, Lawyers Say

Indiscriminate use of generative artificial intelligence may cause privacy and contracting challenges.

Mickey McCarter is the senior editor of StateTech Magazine.

Government officials and contractors should be wary of how the use of artificial intelligence might create privacy and contracting challenges, public sector lawyers said at the annual conference of the National Association of State Chief Information Officers on Tuesday.

Addressing the NASCIO 2024 conference in New Orleans, Anh Le, chief of business operations and general counsel for the Georgia Technology Authority, and Katy Ruckle, chief privacy officer for Washington state, warned that generative AI “exponentially” increases the power to generate public records. The same laws that apply to all public records also apply to GenAI-produced records, Le and Ruckle warned.

In Georgia, public records are legally defined as “all documents, papers, letters, maps, books, tapes, photographs, computer-based or generated information, data, data fields or similar material prepared and maintained or received by an agency or by a private person or entity in the performance of a service or function for or on behalf of an agency,” Le said.

And in Washington, public records include “any writing containing information relating to the conduct of the government or the performance of any government or proprietary function prepared, owned or retained by any state or local agency,” Ruckle added. Writing includes “handwriting, typewriting, printing, photostating, photographing and every other means of recording.”

GenAI can produce multiple types of public records at great volume, so government staff and contractors should be “minimal and purposeful” in their official use of AI, Le said.

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Participants Should Carefully Weigh Privacy Considerations

AI transcriptions of government meetings become public records. “We are already in litigation over our Teams chat” and the internal records of chat transcripts, Ruckle said.

It is also common in meetings for people to make small talk about health problems, children, holidays and other personal matters, Le said. GenAI can capture these conversations as a matter of public record and thus expose personal information when those records become available to everyone.

Government agencies should give consideration to classification and retention of AI-produced public records as well as the overuse of confidentiality claims, Le said. Ruckle cautioned that Washington state does not automatically recognize private sector claims of confidentiality on records submitted to government agencies.

For example, Washington state agencies face penalties of $100 per page per day for public records not produced under official requests, Ruckle said.

“Just because something says confidential and proprietary doesn’t necessarily mean that it is for us, and we are not going to assume that risk. Agencies will err on the side of releasing records,” she said. Companies can obtain court injunctions to stop the release of records requested for public release, however.

Privacy is also a concern for HR professionals, who must withhold certain personal information about state employees. This information could be held in applications, medical reports, location-based tracking data, workplace investigations, casual conversations and other records. Officials must take care to protect this information, Le and Ruckle said.

“Physical, technological and administrative controls ensure private data is accessible only to authorized personnel,” Le said.

“Be very deliberate about how you use GenAI,” she added.

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Parties Must Examine Contracting Obligations to Avoid AI Conflicts

Agencies and contractors should also examine contracting implications for AI, Le said.

There may be laws guarding the use of public data for AI model training, or contracts may contain language guiding the use of such data in a government project. Agencies and vendors must also consider the use of AI in the supply chain, including for subcontractors or parties two or three steps removed from an immediate acquisition.

All parties must consider updating standards as to what constitutes acceptable work and what role AI may play in the delivery of government projects. They also must update existing provisions related to warranty, acceptance, termination and other contractual obligations.

Le cautioned that vendors must take care not to produce AI that incorporates proprietary property of others. They must be careful to protect copyright, trade secrets and proprietary information by avoiding any conflicts over rights, she said.

Keep this page bookmarked for our coverage of the NASCIO 2024 Annual conference. Follow us on X, formerly known as Twitter, at @StateTech and the official conference Twitter account, @NASCIO. Join the conversation using the hashtag #NASCIO24.

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