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Editor’s Note: Read Civil Beat’s series on the cost of Hawaii’s public records here.
Honolulu officials say it will take more than 1,000 hours to track down the requests the city has had for public records since January 2011.
And that, they say, will cost $11,240 to do.It’s unclear why it would take city staff that long to find the official public records request forms, which most government agencies require to be filled out before they’ll respond to a request. City spokesman Jesse Broder Van Dyke, who sent Civil Beat the estimate, said the reason for the high estimate was that our request was “very broad.”
But it appears the city is a prime example of a persistent problem in state and local government. Agency records are not very well organized so the public ends up paying high costs because the documents are not easily accessible. Or they’re mixed with information that is not releasable so it adds to the cost while the public information is sorted from non-public.
“Allowing agencies to charge for their administrative inefficiencies, that’s just inappropriate,” said Ian Lind, a longtime Honolulu news reporter. “If an agency makes the public records and maintains the public records, it should keep them in an easily retrievable form. We shouldn’t have to pay to see the records.”
Of all the agencies Civil Beat surveyed for this series, Honolulu was by far the most expensive in its cost estimate.
Broder Van Dyke told us it would take 1,127 hours to find all the records we wanted — or $11,240 at the $10 an hour state administrative rules allow agencies to charge to search for records. He said he arrived at the figure by asking every city department to estimate the total hours required to research the request.
And that was just to find the records. The law also allows an agency to charge twice as much — $20 an hour — to review records and redact any information it thinks should be kept confidential. That “segregation” process also drives up the cost of access to public records.
On top of that, agencies can charge a per-page fee to copy documents. The city didn’t give us an estimate of how many pages would need to be copied to fulfill our request, or at what rate.
Civil Beat asked for the so-called Notices to Requesters from dozens of state and county agencies for January 2011 through mid-July. None even came close to the city’s bill. The next highest was the state Department of Budget and Finance at $917.50. The average fee to get us those notices was about $150 and many agencies gave them to us for free. All state agencies combined added up to $2,400.
Honolulu Deputy Managing Director Georgette Deemer said in an email that the administration, in general, has tried to respond in a timely manner to provide information and documents that are public record.
“There are certain requests that demand quite a bit of staff time to gather, and if it appears that public employees will be taken away from their normal duties for a significant amount of time to respond to such requests, we think it’s fair to ask the requestor to go through a formal request process for which there are established costs,” she said.
The state Office of Information Practices, which administers the UIPA, says the public has no real recourse if an agency doesn’t organize its records in a way that makes it easier — and, in turn, cheaper — for the public to access them.
“It comes down to the agency keeps the records the way the agency keeps the records,” said Jennifer Brooks, OIP staff attorney.
The public has to rely on government employees to make the estimates in good faith, she said, adding that training is provided to help ensure this happens.
Sometimes, if an estimate does seem inordinately high, OIP will check with the agency to see how it maintains the records and how it came up with the cost.
If OIP consider the estimate to be appropriate the only alternative is to go to court, a costly and time-consuming process.
State law allows people who bring public records cases to recover their legal costs from the government. But it’s an expensive gamble for the average citizen. Many people just abandon their request rather than go through the hassle and cost.
The connection between how an agency maintains the record and how much it costs to retrieve it is clearly demonstrated in Civil Beat’s research for this series. Agencies that keep their records in electronic format quickly responded and often didn’t charge us for the information.
Other agencies took weeks to respond to the initial request and many asked for more time, insisting the request was too cumbersome.
Shelley Nobriga, who handles UIPA requests at the Department of Public Safety, stressed how long and complicated it would be to fulfill our request and ultimately asked for more time.
Civil Beat filed the request with DPS on July 4. We received an estimate July 24 that said it would take the agency five hours to find the records and seven hours to review and redact them. Total cost? $170.
Both Hawaii and Kauai counties had little trouble producing the records within a few weeks, despite having to check with numerous county agencies.
Mayor Billy Kenoi’s spokesman, Kevin Dayton, and Corporation Counsel Lincoln Ashida gathered all the documents for Hawaii County and emailed them to us.
On Kauai, Mayor Bernard Carvalho Jr.’s executive assistant, Beth Tokioka, coordinated the response, saving us the trouble of having to send our request to 16 separate agencies. She emailed us 129 pages of documents within a couple of weeks.
“For us, it was relatively easy because most of our agencies have pretty systematically filed their requests in one place,” Tokioka said.
Maui spokesman Rod Antone is still processing our request on the Valley Isle. We haven’t received an estimate yet for those records.
At one point he asked how much we’d be willing to pay — a question others had for us too — but more recently he said the records should be arriving in our inbox any day now.
“The request prompted us to initiate better policies to funnel these so we have a better filing system,” Antone told Civil Beat. “It was a good fire drill.”
In Honolulu’s case, it may have been better to go to each agency directly.
We have a long history of seeking records from the Honolulu Police Department. Earlier this year, the department charged us more than $2,000 for three disciplinary files of officers who have been discharged. (We’re still waiting for two of the three files.)
So we sent our request for public records requests directly to HPD. Five days later we got a bill for $14.25. A few days later, we picked up the documents.
Several state and county officials told Civil Beat that agencies “lose money” on every public records request, even when they charge for the time and copies.
The fees agencies can charge are “considerably less” than the cost per hour to the agency, Brooks said, noting that the fees haven’t been increased since they were established in 1999.
There was a general consensus among the government officials Civil Beat interviewed that agencies need to be able to charge for records requests, especially broad requests, because it’s taking staff away from other duties.
Still, agency officials weren’t sure what a reasonable cost should be.
“Charging the requester in these instances is a good balance of the county recouping its cost and also to weed out what might be ‘frivolous’ requests,” Tokioka said. “Many times if it’s going to take an exorbitant amount of time we simply ask if we can refine the request and that’s often a successful route.”
And there are some instances where a requester might be a private individual and these records are for their sole use, Tokioka said, or would be utilized for some sort of business reason.
“Because there is no larger ‘public purpose,’ as there is when a media is requesting it for a story, I think we’re fully justified in charging reasonable costs,” she said.
Earthjustice, an environmental law firm that regularly uses the UIPA to obtain records, has never been prevented from accessing information because of the price tag, but is also in a relatively good position to cover those costs, attorney David Henkin said.
“I appreciate the government’s concern about being burdened by these requests,” he said. “It’s important for citizenry to be mindful of that and narrowly tailor requests. But it’s our government and we should have access to it.”
Earthjustice used the open records law to access background information in its legal battle against Kauai Island Utility Cooperative and St. Regis Princeville Resort over the effect their artificial lighting was having on endangered seabirds.
“These information requests are often critical in determining in whether citizen groups need to take action on something,” Henkin said.
Pat Tummons, editor of Environment Hawaii, a monthly newsletter, has used the public records law for decades. She recalled the days of researching a story by poring through microfilm at the Bureau of Conveyances and the odd cost obstructions the agency threw in her way.
She was told at one point that she couldn’t shrink the documents to fit two slides per page to save on copying costs. It was 50 cents a copy, which added up. Tummons had to take her complaint to the head of the agency to resolve the matter.
On the whole, Tummons said, she’s seen a marked improvement in how Hawaii agencies handle public records requests. She attributes it to how frequently the agencies interact with the public.
The Hawaii County Planning Department, for instance, routinely emails her the records she wants without charging.
“They’re so with it,” Tummons said. “That should be the standard.”
But she said it’s still hard to access public records in some agencies, especially when they don’t want the information out there.
When state employees use words like “burden” in regards to fulfilling records requests, it reflects “a problem with governmental attitudes,” according to a 1987 task force report on public records and privacy. The work of the blue-ribbon panel, formed under then-Gov. John Waihee, led to the creation of the UIPA.
A quarter century later, those attitudes clearly persist.
In fact, it was a public records request to Gov. Neil Abercrombie’s office this summer that partly triggered this series. Civil Beat asked for the governor’s travel records for the last two years and was hit with a bill for more than $1,000 for the documents.
Abercombie, who as governor ultimately has authority over OIP and what sort of fees and rules it sets, declined to talk to us for this story. His spokeswoman, Christine Hirasa, said the governor defers to the OIP to provide the state’s position on the role cost plays in public records requests.
She said Abercrombie supports OIP in its efforts to administer the UIPA and its accompanying administrative rules.
Cheryl Kakazu Park, who Abercrombie appointed in April 2011 to head the OIP, referred questions to Jennifer Brooks, the staff attorney who has a long history with the office.
OIP works to balance the public’s right to know what its government is doing with an agency’s ability to recoup costs and ensure day-to-day business runs smoothly, Brooks said.
Former Gov. Ben Cayetano, who was in office when the fees were first established, said the attitudes on public records requests often reflect who is in charge.
“Attitudes change over the years,” he said. “We might be a government of laws, but it’s the men who make those laws — so it matters.”
Cayetano said his OIP tried to balance the public’s access with the cost to the agency.
“Striking the balance between the public’s right to know without disrupting the ordinary operation of government is not easy,” Cayetano told Civil Beat. “As a general rule, decisions made by state officials should err on the side of public disclosure.”
Cayetano has raised concerns about the cost of public records since the 1980s. He testified before Waihee’s task force that government agencies should let people bring in their own means of copying documents if the charges were going to be too high otherwise.
“The lowest guy on the totem pole should have reasonable access to government records,” Cayetano told Civil Beat in an interview last month.
“The government is not supposed to be in the business of making money,” he said. “Why should the government charge more for copies than Kinko’s?”
As a state senator in 1983, Cayetano chaired the Senate investigative committee that looked into a problem with the pesticide Heptachlor.
He said there was a tremendous public uproar when state laboratory technicians discovered traces of the pesticide in milk. The investigation involved numerous public hearings over a 10-month period.
State officials who were called to testify before the committee were quite open in providing information to the committee, Cayetano said, adding that the director of the Department of Health took full responsibility and eventually resigned.
“The response of state officials back then was far different than (University of Hawaii) officials during the Senate’s hearings on the Stevie Wonder incident,” he said. “UH should have disclosed the facts; there was no need to hire private attorneys to represent the UH president, chancellor and other UH officials who were called to testify.”
The university hired a law firm last year to redact a fact-finder’s report on the investigation into how UH got duped into paying scam artists $200,000 for Stevie Wonder to perform at the school. OIP slammed the university in a letter last March, saying only two of the names in the report should have been redacted.
Honolulu is trying to put more records online in an effort to make public access easier but also because it is more efficient for all and creates a more informed public, Deemer said.
A road repaving schedule update and a report on potential rockfall hazards impacting city streets are two examples that the city put online this year, she said, adding that these are easily accessible to the public on the homepage of the city’s website.
State Sen. Les Ihara, who’s known in the Legislature for his work on government accountability and transparency, said agencies should budget for public records requests so the documents can be provided for free, except in rare cases.
“The amounts become so huge that it becomes a barrier,” he said. “The information is really for accountability, especially when it’s a public purpose. That’s part of our system of democracy.”
The Legislature needs to force agencies to do a better job of how they organize and post records, Lind said. He says it should be mandatory to post certain records online, starting with basic things such as meeting minutes and supporting documents to agendas.
“It makes total sense and it’d be relatively simple,” he said.
Agencies would find the advantages of posting online include fewer records requests — especially for the same records over and over — and less money spent on copying costs, Lind said.
“The new world of online repositories of government records is beginning to whittle away the age of having to be at the agency to see the record,” he said.
In an increasingly digital world, cost should be less of an impediment to accessing public information. Henkin, the EarthJustice attorney, said he questions the state policy of charging for public interest requests.
“That gets in the way of public accountability, the ability of citizenry to know what their government is doing and play an oversight role in ensuring agencies are being responsive to the public interest,” he said.