Off The Beat: Have Public Records Angels Possessed Neil Abercrombie?
State officials may not like the idea, but they seem to be inclined to release employee misconduct records. So far.
Reading time: 6 minutes.
Something odd is going on in the Abercrombie administration. Officials actually seem to be scrambling to release public records in a timely fashion.
Usually we use this space to rail about officials not doing what we want them to. So it seems only fair that we report what appears to be a sincere — if somewhat controlling — effort to get us the records we’ve requested.
So far at least. And we’ll see what happens when they want to charge us for the files. That’s always the deal breaker — charging hundreds if not thousands of dollars for public documents is the same as not making the records publicly accessible after all.
This time we’re interested in public employee misconduct. Recently we published a five-day series, In The Name Of The Law exploring why the public is prohibited from learning much, if anything, about police misconduct.
It turned out that in 1995 the Legislature sided with the state’s powerful police union and agreed to let the cops off the hook when it comes to disclosure of disciplinary records for officers who have been suspended.
Under the state public records law, disciplinary records for every other public employee in Hawaii are to be made public, once a final determination has been made, if an employee is suspended or discharged.
So we decided to ask state agencies for those records going back to December 2010, basically the beginning of Neil Abercrombie‘s term as governor. We figured it would be a good test of the law to see whether it’s applied consistently, whether misconduct is a problem for taxpayers either financially or as it relates to policy, and what sort of barriers the public must overcome to get the records.
Some agency officials reacted as if we’d just asked to see President Obama’s birth certificate.
“Do you know how much work you’re making me do?” one high-level public information officer in a large agency complained.
“My heart aches,” said another, accusing us of “not considering the feelings of these individuals.”
We would lose “karma points” for this one, we were warned.
Bad vibes aside, we were delighted to hear from a number of other agency officials who assured us the state was taking our request seriously. They even slipped us copies of emails and memos that hit their inboxes within a day of our request last week.
“As some of you already know, Nick Grube at Civil Beat is submitting a (Uniform Information Practices Act) request to each department for information about employee misconduct,” Abercrombie communications director Louise Kim McCoy wrote in a mass email. “Please note that (the Department of Human Resources Development) is checking with the (Office of Information Practices) for guidance and will inform all departments so we can respond accordingly and in similar fashion. Your respective Deputy Attorney General should be informed of this request.”
Of course, Nick Grube had already called the human resources folks, thinking they might have records on all suspended or discharged employees as part of tracking personnel and payroll issues, kind of one-stop shopping for us. One DHRD official told him the department does not keep that information and that he’d have to ask each agency individually.
So it did raise our eyebrows a bit when we were copied on this email from Barbara Krieg, the director of human resources, to all state agencies. It said, in part:
We are generating and will forward by tomorrow reports of all employees whose records in HRMS reflect, since December 1, 2010, either (1) suspension or (2) various categories of discharge. The reports should hopefully provide a starting point in terms of employees who may fall within the information requested. We emphasize, however, that not all employees on the HRMS lists will necessarily be within the group requested (and you may be aware of other employees who are not reflected on the HRMS lists).
Hmmm. But the human resources department did officially reply within two days of our initial request to say no employees in the department had been suspended or disciplined in the time frame we’re looking at. Its response is meant to set an example — a good one we hope — for the others.
The department also pretty quickly shot a note to the state’s public records agency, the Office of Information Practices, asking for guidance for all state officials to follow.
OIP, arguably one of the slowest state agencies when it comes to answering requests — we are not the only ones waiting well more than a year for an answer on appeals of cases — virtually snapped into action, writing this detailed memo to the agencies (the bold sections are their emphasis):
HRS section 92F-12(a)(2) requires the disclosure of “[f]inal opinions, . . . as well as orders made in the adjudication of cases, except to the extent protected by section 92F-13(1).” HRS section 92F-13(1) protects against disclosures that “would constitute a clearly unwarranted invasion of privacy.” Except for county police officers, HRS section 92F-14(b)(4)(B) states that an employee who is suspended or discharged has no significant privacy interest in the following information, which therefore, must be disclosed: name, nature of the employment-related misconduct, the agency’s summary of the allegations of misconduct, findings of fact and conclusions of law, and the disciplinary action taken by the agency, provided that the highest non-judicial grievance adjustment procedures timely invoked by the employee or the employee’s representative has been concluded, and that 30 calendar days have elapsed following the issuance of a written decision sustaining the suspension or discharge. The same provisions of HRS Section 92F-14(b)(4)(B) apply to county police officers, but only when they have been discharged.
OIP went on to advise the agencies how to respond in specific instances — say, they have a disciplinary action that hasn’t run the 30-day “requisite time” period, or maybe a written decision hasn’t been written yet.
And yes, we might quibble with some of that advice, once we see what they give us.
We were happy to see OIP lay down the law about responding within 10 working days of the request. So we’ll let you know how that goes too.
The kicker, as always, will be the cost.
OIP’s rules allow agencies to charge $2.50 per 15 minutes to search for records, and $5.00 per 15 minutes to review and segregated records.
Our experience is that agencies frequently price the public out. Is it really going to take staff weeks and thus thousands of dollars to find the documents, black out information that we don’t want them to black out anyway, and make some copies?
The ACLU filed suit last week against the state Department of Public Safety. Its client paid more than $5,000 down on public records in September and has received zippo.
Still, given the Abercrombie administration’s effort to get all the agencies on the same page when it comes to both the law on public employee disciplinary files and the law on releasing public records, we are cautiously optimistic that the public may eventually get to peek inside the workings of their own state government.
That would be a welcome change.
Sign up for our FREE morning newsletter and face each day more informed.