Editor’s Note:Read Civil Beat’s series on the cost of Hawaii’s public records here.
Last year, the University of Hawaii sent a voluminous report on the highly publicized Stevie Wonder concert fiasco to a legislative investigative panel.
But first, a law firm hired by the UH to help prepare the report went through the pages and blacked out names of people who didn’t work for the university.
Including Stevie Wonder’s.
That caused lawmakers to do more than shake their heads in amazement. Senate President Donna Mercado Kim, who chaired the special committee, and Sen. Les Ihara, who sat on the committee, asked the Office of Information Practices, the agency that oversees Hawaii’s public records law, to determine whether the redactions were valid.
OIP staff attorney Jennifer Brooks slammed UH in a scathing letter March 28.
“UH’s response to requests for records related to this issue of high public interest appears not to have been supervised by anyone with even a passing familiarity to the actual law governing public records requests,” she wrote.
Six months after the OIP opinion, the Senate investigative panel’s effort in the UH case doesn’t seem to have translated into anything more than a public scolding.
But the university is not alone in its seemingly overzealous effort to withhold information a government agency doesn’t think should be released.
Documents requested from state and county agencies under the Uniform Information Practices Act are often handed over with black streaks through words, sentences, paragraphs and even entire pages. Agencies are supposed to provide a legally justified reason for every redaction, but they’re often chalked up to privacy concerns or broad categorical exemptions such as the ubiquitous “frustrates a legitimate government function.”
The requester has to pay for the time it takes an agency to redact information. It’s often the most expensive part of fulfilling a records request because the agency has to pore through the documents looking for information it deems confidential.
It begs the question: Why are requesters being forced to pay for withholding the information they are asking for? Shouldn’t the agency bear the cost for withholding information it’s not willing to provide?
Jeff Portnoy, a prominent First Amendment attorney in Honolulu, said it’s “absolutely outrageous” that agencies charge for redactions.
“In my view, redactions should not have to be paid for by the record seeker,” he said. “Redactions are something the record producer has in his, her or its control.”
OIP’s administrative rules, which established a fee structure for public records in 1999, allow agencies to charge for redactions. But not in every instance, and those have been laid out over the years in OIP opinions.
The rules set out a fee agencies can charge to search for the records someone asks for, and then review and “segregate” them before release. “Segregate” is defined as “to prepare a government record for disclosure by excising any portion of the record that will not be disclosed under chapter 92F, HRS.” Chapter 92F is the UIPA, Hawaii’s open records law.
“Excising,” of course, is the operative word, which the dictionary defines as to remove something by cutting it out in parts. That means agencies can charge for the time it takes them to redact portions of documents. But, OIP has determined, not when the agency keeps the records in a way that makes it unnecessarily time-consuming — and thus costly — to excise information.
In May 2000, the Department of Human Services was asked for reports on decisions it had made. DHS felt it needed to black out the names of claimants in the reports and charged the record seeker for the time it took to do that.
But OIP disagreed. The law of the agency and how decisions are made must be available to the public, OIP said, and it’s up to the agency to keep those records in a way that doesn’t include confidential information.
“The requester should not bear the cost of the DHS’ decision to incorporate this confidential information into a public record,” OIP wrote in its opinion. “Therefore, the DHS should be responsible for the costs of redaction.”
OIP rules require agencies to tell the requester what specific record or parts of a record are unable to be disclosed and what legal exemption allows them to do so.
There are five main exemptions in the UIPA that allow agencies to withhold information. They include a clearly unwarranted invasion of personal privacy; government records pertaining to the prosecution or defense of any certain judicial actions to which the state or county may be a party; government records that, by their nature, must be confidential to avoid the frustration of a legitimate government function; and draft working papers of legislative committees.
A person can ask OIP to review an agency’s denial of access to information or records. If OIP says the information was wrongly redacted, the agency has to turn over the requested information under OIP rules. The requester has to file the appeal within a year of asking for the records.
In Civil Beat’s review of the hundreds of Notices to Requesters that state and county agencies sent us in response to our records request, the most expensive part of the charges varied from one department to the next.
In the Department of Commerce and Consumer Affairs, copies were frequently the biggest part of the bill for records requests. In the Department of Hawaiian Home Lands, review and segregation was often the priciest aspect.
DHHL charged Carl Foytik, an attorney, $1,035 for his 2011 request of the decisions and orders of the Hawaiian Homes Commission concerning lease cancellations from Sept. 1, 2006 to Sept. 1, 2011. The agency estimated it would take 48 hours to review and segregate the records at a cost of $940.
How an agency actually redacts the record is a concern, too.
The OIP told UH that it violated administrative rules by whiting out the names. The law requires agencies to black out the redacted information so it’s “reasonably apparent” that information was removed from the record.
There have been issues, however, with how to black out the information.
Some agencies have run into issues using certain computer programs because it can be undone. But others have had trouble blacking information out with a pen or marker because it can sometimes be seen by holding the document up to a light.
The public will likely see more opinions from OIP on redactions in the coming months or years. Several people have outstanding requests for opinions from OIP regarding redactions.
Joan Conrow, a Kauai blogger and journalist, asked the OIP about redacted and withheld emails in June 2012. She’ll likely have a while longer to wait though because OIP has a one- to two-year backlog of requests for opinions.
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