Editor’s Note: Civil Beat recently participated in the State Integrity Investigation, a 50-state data-driven assessment of government transparency and anti-corruption efforts. The Hawaii Office of Information Practices submitted the following response to Civil Beat’s findings.

The “State Accountability Project” has been touted by Civil Beat as being a “data-driven assessment of transparency, accountability, and anti-corruption mechanisms” that “does not rely on a simple tally of scandals.” The Project gave Hawaii an overall rating of “C,” and a “D” for public access to information. It should have given itself an “F” for fair and factual reporting, and a “D” for its disservice to the public in allowing its for-profit reporter’s need for controversial headlines to color a false portrait of information access in Hawaii.

The low rating of public access to information was based on a two-part questionnaire answered by the Project’s paid reporter. The questionnaire’s first part dealt with the laws granting citizens the right of access to information, in which the Project reporter gave Hawaii a 100% rating, as the state’s laws unquestionably met the objective standards for that part. The second part dealt with whether the right of access to information was effective, and was almost entirely based on the Project reporter’s subjective and anecdotal opinion involving its own record requests that were “newsworthy” only because they were controversial or exceptional, and were not fairly representative of the thousands of record requests that are dutifully fulfilled by state agencies each year. While the state Office of Information Practices (OIP) appreciates the role that the media can play in ensuring transparency in government, it disagrees with the Project reporter’s rankings and opinions, and like others, challenges their fairness and accuracy.

Although OIP was not asked to participate in the Project, it is the state agency that administers the Uniform Information Practices Act (Modified), Chapter 92F, Hawaii Revised Statutes (UIPA), which is Hawaii’s open records law. (OIP also administers the Sunshine Law, which is the open meetings law and was not covered by the questionnaire.) OIP works with Hawaii’s open government laws on a daily basis as it trains and advises all state and county agencies on how to comply with Hawaii’s open government laws and provides a free and informal means to resolve open government disputes between agencies and the general public. The laws, OIP’s opinions, training materials, forms, legislative proposals, recent developments, and other open government news can be found at http://hawaii.gov/oip/index.html. Based on OIP’s impartial experience in administering Hawaii’s open government laws and protecting the people’s right to access public records, OIP would have given Hawaii a 91.8% or “A” ranking to the public access to information portion of the State Accountability Project as described in OIP’s Analysis that follows.

The Hawaii Office of Information Practices’ Analysis of the “State Accountability Project” Report Regarding Public Access to Information

As the state agency that has impartially administered Hawaii’s open records law
since 1988, the Office of Information Practices (OIP) would have given Hawaii a 91.8% or “A” ranking to the public access to information portion of the State Accountability Project.

These scores are contrasted below with those of the for-profit reporter that completed the questionnaire and provided the rankings found in the Project. What follows are the questions from part 2 of Civil Beat’s March 27 article, the relevant scoring criteria, the Project’s scores and a summary of its comments, how OIP would have scored the questions, and the reasons for OIP’s score.

For more facts about OIP and Hawaii’s open government laws, please go to http://hawaii.gov/oip, where you will find the laws; OIP’s rules and opinions (including a searchable subject matter index); training videos and guides; forms; annual reports; and What’s New regarding open government legislation and other news.

1.2: Is the right of access to information effective?

1: In practice, state agencies and government officials are not exempt from access to information laws. Project’s score: 50% OIP’s score: 100%

The scoring criteria for this question should be “very strong” if “[n]o state agencies and/or government officials are exempt from coverage under the state’s access to information laws.” Based on this criterion, OIP gives Hawaii a 100% because the UIPA applies to all state and county government agencies, the Legislature, and the Judiciary. Understandably, the UIPA does not apply to the courts’ adjudicatory functions, as the Judiciary is a separate branch of government with its own rules that govern disclosure of records from court proceedings. The UIPA, however, does apply to the Judiciary’s administrative, nonadjudicatory functions, such as its personnel matters.

Like the federal and other state freedom of information laws, the UIPA recognizes various exceptions to the law’s general mandate of disclosure, including the commonly recognized exceptions for “clearly unwarranted invasion of personal privacy,” as well as “frustration of a legitimate government function,” which encompasses the “deliberative process privilege.” A government official’s refusal to disclose information based on lawful exceptions does not mean that the official is exempt from the law. Thus, the Project’s score of 50% is unfair and misleading, as it is based on two record request examples where exceptions were claimed, not because the government officials were exempt from the UIPA. In fact, in the examples cited and in many other cases involving those agencies, both the Honolulu Police Department and the Governor have fulfilled record requests, thus demonstrating that they are not exempt from the UIPA. OIP’s ranking of 100% is fair and accurate, as there are no exceptions for state agencies or government officials under the UIPA law or in practice.

2: In practice, citizens receive responses to access to information requests within a reasonable time period. Project’s score: 50% OIP’s score: 95%

A “very strong” score is warranted when “[r]ecords are readily available or accessible online. Records are uniformly available; there are no delays for politically sensitive information. Rare exceptions are allowed for sensitive national security-related information for cases as defined in law.” A “fair” score is warranted when “[r]ecords may take up to one month to obtain. Some additional delays may be experienced. Politically- sensitive information may be withheld without sufficient justification.”

To support its 50% ranking regarding the timeliness of responses, the Project’s reporter cited three examples: (1) the Department of Education took three months to provide a list of fired or suspended teachers; (2) the Honolulu Road Maintenance Division took three months to search, review, and segregate data from two years of overtime records; and (3) former Lt. Governor Duke Aiona’s office took seven weeks to fulfill a record request, following his request for an extension of time to determine if an exception from disclosure was warranted. In contrast, based on OIP’s experience during the current Administration, OIP’s ranking would be 95% for the following reasons.

The UIPA and its accompanying administrative rules generally require agencies to respond to requests within ten business days, unless there are extenuating circumstances. When an agency does not respond or denies a request in whole or in part, the requesters typically will seek OIP’s assistance. Keep in mind that thousands of requests for innumerable types of records are annually fulfilled within ten business days, including those for personal records, licenses, public contracts, and data underlying an agency rule or decision. For example, in fiscal year 2011, the state Department of Health alone had 4,607 UIPA record requests, not including routine requests that it fulfills daily, such as those for birth and marriage certificates. In contrast, OIP received 74 appeals under the UIPA from denials and requests for opinions or assistance in obtaining records from all agencies in fiscal year 2011. The relatively small number of disputes reported to OIP indicates that the overwhelming majority of requests are being responded to within ten business days.

When a request takes longer than ten days to fulfill, it is usually because the agency is denying all or a portion of the record request due to a legal exception from the disclosure requirement or because it involves a voluminous or complex request. The requested record may have to be reviewed for content and confidential, personal, or excluded information must be redacted before disclosure. If the requested record or particular list does not exist, then there is no requirement for disclosure, unless a summary can be reasonably created and made available by the agency. The UIPA, however, does not require agencies to make unreasonable efforts interfering with their agency functions to create a record or summary that does not already exist. In order words, a requester does not have the right to disrupt an agency’s normal functioning and supersede the agency’s priorities in order to have its personnel drop everything to process a voluminous or complex request. Voluminous or complex requests may be disclosed over time in reasonable increments, based on the agency’s resources and ability to respond to the request. See OIP’s on-line guide to processing large or complex UIPA record requests.

In practice, therefore, an agency’s response time reflects the complexity of the request. As the vast majority of typical record requests are fulfilled within ten days and only a few of the more complicated requests will take longer, OIP ranks Hawaii at 95% in responding to citizen requests for information within a reasonable period of time.

3: In practice, citizens can use the access to information mechanism at a reasonable cost. Project’s score: 25% OIP’s score: 95%

A “very strong” score is called for when “[r]ecords are free to all citizens, or available for the cost of photocopying. Records can be obtained at little cost, such as by mail or online.” A “fair” ranking is warranted when “[r]ecords impose a financial burden on citizens, journalists, or civil society organizations (CSOs). Retrieving records may require a visit to a specific office, such as the state capitol.” A “very weak” score applies when “[r]etrieving records imposes a major financial burden on citizens. Records costs are prohibitive to most citizens, journalist, or CSOs trying to access this information.”

Although the Project recognized that information may be obtained at no cost from some agencies, its reporter gave a very weak score of 25% based on just a few factors: (1) a $5 search fee to review court records; (2) a nearly $40,000 search, review, and segregation estimate given to obtain three years of legal invoices from the University of Hawaii; (3) the Department of Human Services’ (DHS) $123,000 estimate to respond to Civil Beat’s (CB) request for records that DHS does not track and which would have required 11,591 employee hours to manually review and redact 170,0000 cases files; and (4) an alleged $2,300 charge by the Hawaii County Clerk’s Office to search for, manually review, and physically segregate one month’s worth of e-mails of six county council members.

OIP does not believe that it is fair to score this question at only 25%, based on a few anecdotal stories involving complex, voluminous, or extensive record requests that were exceptions to the typical record request. OIP also does not believe it is fair for the Project’s reporter to fail to explain that OIP was never asked to rule on the reasonableness of the $40,000 or $123,000 estimates. Moreover, it is not fair to fail to explain the complexity of the requests that generated the high estimates. For example, the Project reporter made the DHS request, which sought actual paper copies of every record request and the agency’s responses going back for over a year and, because the agency apparently did not keep a separate file of such information, would have required the agency to search through, review, and redact 170,000 case files to fulfill the records request. Finally, while the Judiciary must follow the UIPA regarding administrative, nonadjudicatory records, please remember that it is a separate branch of government that sets its own rules for access to court records.

Based on the following facts, OIP would rank Hawaii 95% in providing access to information at reasonable or no cost for the vast majority of record requests. Under OIP’s rules, agencies may charge a requester to search, review, and segregate (e.g., redact confidential, personal, or protected information) records, but these fees are limited to $2.50 to $5.00 per fifteen minutes or portion thereof, or the equivalent of $10 to $20 per hour. This fee schedule was set by OIP rules adopted in 1998, and probably does not accurately reflect the true higher costs of government agencies’ personnel costs today. Moreover, OIP rules require the agency to waive the first $30 in search, review, and segregation (SRS) fees; and for a requester meeting the public interest standards, the first $60 in SRS fees are waived. Alternatively, agencies that are statutorily required to recover their actual costs may establish their own fees, provided they do not exceed the actual SRS costs. Copying rules are governed by a different statute, which requires that not less than five cents per page be charged for the typical document.

For requests that are not subject to a fee schedule based on actual costs, most SRS fees do not meet the $30 or $60 threshold and are thus waived by the agencies and provided free of charge to the requesters (except, perhaps, for copying and delivery costs). If a request involves voluminous records or extensive search, review, and segregation time, the agency is required to estimate the amount of time that will be involved in processing the request, and must provide a good faith estimate to the requester before fulfilling the request. The SRS fee estimate may be understandably high and the request may take a long time to incrementally fulfill if the agency is required to divert its personnel from their core duties to respond to a complex request for records. If faced with a higher estimate than expected, the requester can then decide whether or not to pare down the request.

Alternatively, when requesters disagree with an agency’s fee estimate or denial of access, they will typically seek OIP’s free assistance. Although the public can always sue to have the courts enforce the open government laws, OIP’s free and informal process is the preferred alternative because most disputes can be timely resolved without the need to hire attorneys. OIP annually receives over 800 requests for advice, assistance, and training, and more than 80% of the inquiries are resolved the same day through general advice provided through OIP’s attorney of the day (AOD) service, which can freely and easily be accessed by phone, email, letter, or personal visit to OIP.

Requesters always have the right to judicially challenge an agency’s action, whether or not they first avail themselves of OIP’s free services. If requesters prevail in court, then they are entitled by law to be awarded reasonable attorney fees and costs.

Given the low fees, fee waivers, free OIP services, and attorney fees and costs awards available to the public for successful litigation of government records access disputes, OIP concludes that requesters are able to access records at a reasonable cost in Hawaii, thus warranting a 95% ranking for this question.

4: In practice, responses to information requests are of high quality. Project’s score: 25% OIP’s score: 95%

A “very strong” ranking should involve “[r]esponses to information requests [that] typically address the requester’s questions in full and are not redacted or edited to remove sensitive information.” A “fair” ranking is for: “[i]nformation requests [that] are sometimes met with sufficient responses, but responses to information requests may be vague or overly general when sensitive information is sought.” A “very weak” ranking is given when “[t]he government rarely or never replies to information requests with meaningful responses. If and when responses are issued, they are so overly general or heavily redacted as to render them useless.”

The Project gave this question a very weak ranking of 25%, based on: (1) the Honolulu Police Department’s refusal to disclose the names, job titles, and salaries of its personnel due to privacy and safety concerns for its undercover police officers; (2) former Lt. Governor Duke Aiona’s request for more time to respond to a records request for his expense reports; (3) failure of the teacher’s union to return the Project reporter’s calls; and (4) the Department of Education’s request to have the Project reporter’s records request in writing. The Project did not describe the actual responses, if any, made by former Lt. Governor Aiona or the Department of Education, and the teacher’s union is not subject to the UIPA, so these examples were not responsive to the question. In contrast, OIP’s daily experience leads it to conclude that responses to information are generally of high quality, which deserves a ranking of 95%.

As noted in answer 2, the vast majority of record requests are fulfilled by agencies, so people are getting what they asked for. Of the disputed cases that OIP has seen, the typical problem is not the quality of the responses, but the fact that the information sought is not maintained or summarized by the agency in the manner that the requester desires, or because the information sought is claimed to be protected from disclosure. Agencies cannot provide information that they do not have, and are not required to provide information that the legislature determined need not be disclosed, such as confidential or highly personal information. If summaries of information are requested and can reasonably be made available, then agencies must prepare and provide them, but the UIPA does not require agencies to make unreasonable efforts interfering with their agency functions to create a record or summary that does not exist. Other disputes will often occur over the cost of providing information requested, which can be high if the request involves voluminous records and extensive agency search, review, and segregation time as explained in answer 3. Thus, in OIP’s view, quality of responses is not really a problem. Requesters are getting the existing government records they asked for and are entitled to obtain under the UIPA, which justifies a 95% ranking.

5: In practice, citizens can resolve appeals to access information requests within a reasonable time period. Project’s score: 25% OIP’s score: 85%

A “very strong” score is justified when “[t]he agency/entity acts on appeals quickly. While some backlog is expected and inevitable, appeals are acknowledged promptly and cases move steadily towards resolution.” A “fair” ranking is warranted when: “[t]he agency/entity acts on appeals quickly but with some exception. Some appeals may not be acknowledged, and simple issues may take more than two months to resolve.” A “very weak” ranking is when “[t]he agency/entity does not resolve appeals in a timely fashion. Appeals may be unacknowledged for many months and simple issues make take more than three months to resolve.”

The Project gave a dismal ranking of 25% to this question, based on its reporter’s opinion that it may take about three to six months to resolve an appeal, depending on the issues’ complexity. The Project cited: (1) OIP’s taking eight days to provide the Project’s reporter with an opinion regarding release of City and County of Honolulu employee names; (2) OIP’s response in 17 days to the Project reporter’s request for judicial nominee details from Governor Linda Lingle; and (3) OIP’s deference to the courts following Governor Neil Abercrombie’s refusal to reveal unsuccessful judicial nominee names. With respect to the third example, the Project failed to note that OIP resolved that case only ten days after the last of the parties’ response to the investigation was received, and that there were many other factors more fully described in the answer to question 8. Thus, the Project’s own examples fail to demonstrate that its low score was justified.

OIP believes that a ranking of 85% is warranted, because the vast majority of inquiries concerning records requests are resolved the same day or within a reasonable period of time, as shown by the following facts. As explained in answer 3, the public can always sue to have the courts enforce the open government laws, where they are entitled to expedited judicial review. Most people, however, choose to avail themselves of OIP’s free and informal dispute resolution process. Of the 822 requests for assistance received by OIP in fiscal year 2011, 676 (82%) were attorney of the day (AOD) requests for general advice, which was provided by OIP within the same day or two.

Requests for OIP’s assistance, other than AOD inquiries, will be promptly acknowledged by OIP, but necessarily take longer to resolve as OIP must obtain the facts and both parties’ positions, conduct legal research, and prepare written correspondence or opinions. This is due, in part, to the fact that a case-by-case analysis is often necessary to determine whether certain types of government records must be disclosed. OIP resolved 102 UIPA appeals and requests for opinions and assistance in fiscal year 2011, and currently has 67 pending UIPA cases. Some of these pending cases are awaiting responses from the parties, while others are more complex cases that are part of the backlog resulting from years of understaffing and litigation challenging an OIP decision. When this relatively small number of pending UIPA cases are considered against the backdrop of the thousands of records requests and the hundreds of inquiries and appeals resolved by OIP each year, an 85% ranking for this question is modest and reasonable.

6: In practice, citizens can resolve appeals to information requests at a reasonable cost. Project’s score: 0% OIP’s score: 95%

A “very strong” ranking is warranted “[i]n most cases, [when] the appeals mechanism is an affordable option to middle class citizens seeking to challenge an access to information determination.” A “fair” ranking is justified “[i]n some cases, [when] the appeals mechanism is not an affordable option to middle class citizens seeking to challenge an access to information determination.” A “very weak” ranking is given when “[t]he prohibitive cost of utilizing the appeals mechanism prevents middle class citizens from challenging access to information determinations.”

The Project gave a 0% ranking to this question, based on the requester’s need to sue in court to enforce or to challenge an OIP decision. While recognizing that appeals to OIP are free of charge, the Project’s reporter failed to inform the readers that requesters can recover reasonable attorney fees and costs upon a successful court appeal. The Project’s reporter also conflated two separate issues, when it complained that the UH’s $40,000 search, review, and segregation fees estimate to fulfill a professor’s extensive record request was not affordable, and used this unpaid amount to imply that his appeal from the UH’s estimate would not be affordable. The Project’s reporter again conflated two separate issues with its other example that city officials estimated a cost of $665.25 in search, review, and segregation fees to respond to the Project reporter’s request for overtime records that were not readily retrievably from the city’s contractor. Those examples may respond to a question about the cost of accessing information from agencies, but they have nothing to do with the current question concerning the cost of resolving appeals. Moreover, the Project’s score completely ignores OIP’s valuable role in resolving, at no charge, nearly all of the general public’s appeals from agencies’ actions or inaction.

OIP believes that requesters can resolve nearly all appeals for free or at a reasonable cost, thus warranting a 95% ranking to this question. As explained in answer 3, most requesters avail themselves of the free and informal services of OIP to appeal agency denials of record requests. And, most appeals are successfully resolved by OIP without the need to then file a court action. Alternatively, though rarely, requesters may exercise their right to judicially challenge an agency’s action and will be awarded reasonable attorney fees and costs, if they prevail in court. In fiscal year 2011, there were no judicial appeals. In calendar year 2011, the only judicial appeals that OIP tracked were two lawsuits filed by the Honolulu Star Advertiser, in which the requester is seeking attorney fee and cost awards. Other than those two judicial appeals, all other challenges to agency decisions were made to OIP, free of charge. Consequently, OIP concludes that a 95% ranking is merited for this question.

7: In practice, the government gives reasons for denying an information request. Project’s score: 50% OIP’s score: 95%

A “very strong” score is warranted when “[t]he government always discloses to the requester the specific, formal reasons for denying information requests. A “fair” score is given when “[t]he government usually discloses reasons for denying an information request to the requester, with some exceptions.”

The Project gave this question a 50% score, despite citing four examples in which the reasons for the denial of access were given in each case. Even if the Project’s reporter did not like or agree with the reasons, the government gave reasons in all four CB examples.

Based on the Project reporter’s examples and OIP’s own experience, OIP gives a 95% ranking to this question because agencies almost always provide reasons for denying record requests. If an agency partially or fully denies a request, OIP’s rules implementing the UIPA require the agency to tell the requester what records or information is being withheld and the legal justifications for every denial. If the agency fails to do so, then the requester will typically seek OIP’s assistance and OIP will ask for and obtain the agency’s reasons for the denial. The legal burden is on the agency to justify the denial.

8: In practice, when necessary, the agency that monitors the application of access to information laws and regulations independently initiates investigations. Project’s score: 50% OIP’s score: 75%

A “very strong” score is justified when “[t]he monitoring agency aggressively starts investigations into allegations of wrongdoing or cooperates well with other agencies that do. The agency is fair in its application of this power.” A “fair” score is when “[t]he monitoring agency will start investigations, but often relies on external pressure to set priorities, has limited effectiveness when investigating, or is reluctant to cooperate with other agencies in politically sensitive cases. The agency, though limited in effectiveness, is still fair in its application of power.” A “very weak” ranking is when “[t]he monitoring agency rarely investigates on its own, is uncooperative with other agencies, or the agency or entity is partisan in its application of its power.”

The Project scored this question at 50%, based on OIP’s responses in cases that are brought to its attention and OIP’s inability to independently initiate investigations. The Project reporter alleged that OIP has shown reluctance to take on politically sensitive topics, as OIP supposedly did not “renew” its investigation concerning the release of judicial nominees’ names. The Project reporter failed to inform readers that in order to give the requester timely notice to exercise its judicial appeal rights, OIP promptly concluded this investigation within ten days of receiving all parties’ responses, after determining that (1) it had already rendered an opinion on the same issues presented in the case and there was no reason to overturn OIP’s precedent; (2) the non-partisan dispute involved constitutional issues and could only be resolved by the courts; (3) it is the requester’s right, and not OIP’s duty, to seek judicial enforcement of an OIP opinion; (4) OIP’s longstanding policy and practice is to defer to the courts when an issue pending before OIP is also within the scope of related litigation and has the potential to be addressed by the courts, and (5) despite external media pressure to rearrange its priorities, OIP had many other priorities that it had set and did address with its limited resources. The Project reporter also did not report that OIP has promptly and effectively resolved many other UIPA or Sunshine Law cases involving politically sensitive issues, such as public employee salary disclosure and reapportionment.

Given OIP’s independent investigations free from external pressures and its proactive efforts to prevent UIPA violations, a score of 75% is warranted for this question. Despite OIP’s limited resources to administer both the UIPA and Sunshine Law and to resolve its backlog of cases, OIP proactively provides training and advice to agencies to prevent problems from arising in the first place. Moreover, because of OIP’s new training videos and guides, members of the public can now be better informed of their open government rights and can assist OIP in bringing offenses to light. Finally, OIP’s users would likely attest to the office’s fairness and impartiality in conducting and resolving investigations because over 94% of respondents in a 2011 survey reported being satisfied or very satisfied with OIP’s services overall, and 89% of the respondents who had actually requested OIP’s assistance in obtaining government records or concerning a potential Sunshine Law violation reported being satisfied with the help they received from OIP. Thus, while OIP does not have the resources or need to initiate investigations, it fairly, impartially, and independently conducts nonpartisan investigations, regardless of external pressures.

9: In practice, when necessary, the agency that monitors the application of access to information laws and regulations imposes penalties on offenders. Project’s score: 0% OIP’s score: Not Applicable

OIP has no power to impose penalties on offenders, so this question is not applicable and should not be counted in calculating the overall score.

OIP further notes that members of the public can directly seek enforcement of the UIPA by the courts, which have the full range of powers to impose penalties on offenders.

About the author: Cheryl Kakazu Park is the Director of the Office of Information Practices. A 1981 graduate of the William S. Richardson School of Law, Ms. Park was a partner at the Honolulu law firm of Watanabe, Ing, & Kawashima before moving to Europe in 1992 and to Nevada in 1995. In addition to her legal experience, Ms. Park applied her Masters of Business Administration from the University of Hawai’i Manoa to work in the business world with American Express Financial Advisors and Wells Fargo Insurance. Ms. Park was a staff attorney at the Nevada Supreme Court since 2003, and has returned to the islands where she was born and raised.