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Editor’s Note: Read Civil Beat’s series on the cost of Hawaii’s public records here.
One morning when I was driving to work I heard Jill Radke of Friends of the Natatorium on Hawaii Public Radio‘s morning talk show.
She was telling host Beth-Ann Kozlovich that the group had asked the city for records relating to the controversial issue of what to do with the crumbling World War I memorial at Waikiki Beach. But Honolulu wanted thousands of dollars for the documents which the citizens group simply could not afford.
Beth-Ann expressed appropriate outrage, clucked sympathetically and moved on. So did I.
It’s an old story but one that needs a new chapter.
We frequently ask for public records. Much of the time state and local agencies give them to us at little or no cost. Those are the easy ones — a report, a letter, a few emails.
But as soon as we — or even a citizen like Jill Radke — wants to dig deeper into an issue of public importance, the cost climbs and often becomes a deal-breaker.
If you can’t get the records because you can’t afford to pay for them, what good is a public records law that has at its heart the principle that government records should be readily available to the public?
We often agree to pay a couple hundred bucks for records. In February, as part of our project on the lack of disclosure of police misconduct records, we agreed to pay the Honolulu Police Department $2,000 for three disciplinary files — two of which we are still waiting for, by the way.
So when I heard Jill Radke on HPR I could totally feel her pain. Still, I shrugged it off as an annoying fact of life in Hawaii.
But then a few months ago we asked Gov. Neil Abercrombie‘s office for his travel records going back to when he took office. It’s a pretty typical watchdog story in most states, especially when an incumbent governor is running for re-election. Besides just making sure that taxpayers’ money is being spent appropriately, you want to see if the pattern changes the closer it gets to Election Day.
As we’ve showed you in this series, Abercrombie’s office wants more than $1,000 before we can look at the travel records, which are apparently paper files kept in packets in binders. The bulk of the cost is because someone in the office needs to go through the packets and make sure there’s nothing in there we’re not supposed to see and black that stuff out. They’ll make copies for us, but that’s only about $70.
We’d like to just sit down and look through the folders. We can’t imagine what might be in there that is not public record or that would take them more than 50 hours — their estimate — to remove. We don’t need them to make copies, except maybe here and there. We’d also like to do this every month from now until Nov. 5, and maybe even routinely after that.
But we can’t do it if we have to pay hundreds of dollars every time we want to look at the file.
We published this series with the hope of sparking a new community discussion on the practical issues we face here in Hawaii when it comes to accessing public records. We understand that it takes staff time and even attorney time to find the records and process them and that is also a cost to the public. But allowing cost to block access to public records is unacceptable.
So what can we as a community in concert with elected officials and government agencies do to make this a whole lot better? Maybe not perfect, but there has to be something that can be done if we can find the political will to make it happen.
Through his in-depth reporting effort, Nathan Eagle brings more than a few things to the table to talk about.
Let’s start with the public records law itself, the Uniform Information Practices Act. The 1988 blue-ribbon panel that then-Gov. John Waihee assembled to help create the law made it clear that the records belong to the public and the public needs to be able to get at them when they want to. The cost was not even on the commission’s radar as an issue except to say copying fees should not be excessive and that allowing agencies to recover their costs “is of secondary importance.”
Next, let’s look at the actual situation. We conducted a pretty systematic survey of every state and county agency to see what sort of fees they had been charging for public records.
A few agencies — the Department of Land and Natural Resources and the Office of Hawaiian Affairs are the big offenders — didn’t bother to respond at all. That’s an attitude problem that must be changed, and it seems pretty easy to do if Abercrombie were willing to make all his agencies take the public records law seriously. Others, like OHA, need to do the same.
The City and County of Honolulu set the price so outrageously high — $11,240 just to tell us what public records requests they received in an 18-month period — that clearly the message was, well, something we really can’t print. Mayor Kirk Caldwell is another one who should consider getting his people to take the public records law seriously.
Some agencies don’t keep their records in a way that makes public documents easily accessible. They keep confidential information in the same documents as public information, adding to the cost when they have to sort it all out and release the public parts. The state public records office has warned against this practice for years and yet nothing has changed for some agencies.
But it turns out that many state agencies and all the other counties didn’t have much of an issue giving us their records and at very little, if any, cost. And when we looked through their documents at what they had been charging the public for those records we saw the same pattern: there were a handful of laughably large cost estimates — even as much as $250,000 — but for the most part, while there are a few high price tags — a few hundred to a few thousand dollars — agencies are filling people’s records requests for free or certainly less than $100.
So let’s talk about the records that have become cost prohibitive. What can we do about those?
As Nick Grube reported in this series, a lot of reporters, attorneys, activists and other people throughout the country are convinced that high fees are deliberate attempts to keep embarrassing or uncomfortable information from the public. Officials who don’t want to release it jack up the cost on a bet that no one will call their bluff.
We think that happens here, too. But because the law doesn’t require an agency to support their cost estimate with details, there’s no way to prove that. It would be good to talk about a way to make the agency document its expense, the same way the agency encourages record-seekers to narrow overly broad requests.
Our review shows that the requests aimed at digging deeper into an issue of public importance — whether it’s a citizen, a lawyer or a reporter asking — are the ones that carry the most cost and are often priced so high that the documents are never released. But those are the requests that are the most urgent to fulfill — being able to understand and check on government decisions and actions is at the heart of our democracy.
We need to find a way to make sure people are not priced out of those very important efforts.
The easiest fix, of course, is to follow the lead of other states that have dealt with this issue and recognize that these are the public’s records, not the government’s records.
Yes, easy for me to say. I’m not a state or county worker who has to slog through files or scan emails looking for the word “PLDC.”
But I am interested in finding ways to make that very important task easier and cheaper. We have lots of information to build on. Now, let’s get this conversation going.