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Editor’s Note: Read Civil Beat’s series on the cost of Hawaii’s public records here.
HPD responded with a bill for $20,000. That sparked a lawsuit and eventually spurred the Hawaii Office of Information Practices to finally set rates for how much agencies can charge to find and process public records requests.But despite the fee structure that’s now in place — or arguably because of it — cost continues to stifle public access to government records.
UH journalism professor Gerald Kato says the price HPD wanted to charge for its disciplinary records was an obvious tactic to get the students to drop their request.
Faced with the high estimate, the students sought and received help from OIP, which administers the Uniform Information Practices Act, Hawaii’s public records law. A three-year legal battle ensued, ending with the students winning a historic ruling from the state’s highest court.
In its November 1995 decision, the Hawaii Supreme Court underscored that police disciplinary records are public. But the ruling also highlighted the fact that OIP had never addressed fees as the UIPA had mandated seven years earlier.
The UIPA makes it clear that all government records are public with few exceptions. There are narrow exemptions for personal privacy, for instance, certain judicial matters and draft legislative documents.
The law reiterates that a general policy of access to government records enhances government accountability.
With so many documents just a records request away though, lawmakers included a provision that directed OIP to determine how much agencies should charge for the time it takes to find records, review them and redact any confidential information.
Once the Supreme Court gave the agency a nudge, OIP “got right on the rules,” said Jennifer Brooks, now an OIP staff attorney.
But in the early 1990s, the office was at the front end of what would be several years of significant budget cuts and added responsibilities — further delaying the rule-making process.
Four years after the high court’s decision, OIP eventually determined that agencies can charge $10 per hour for the search and $20 per hour to review records and redact confidential information.
Ian Lind, a longtime Honolulu news reporter, recalled that the rule-making process at the Office of Information Practices was less than transparent. He said the OIP seemed to approach it with an end goal already in mind.
In July 1997, attempts to learn details of the draft rules were proving difficult. The OIP director at the time, Moya Gray, said the rules would be disclosed after an internal review was done and public hearings were scheduled, according to a story Lind wrote for the Honolulu Star-Bulletin.
“There was a great deal of publicity given to these draft rules, and yet people still did not feel compelled to participate in the process,” Gray told the paper at the time. “That’s symptomatic of our society.”
There were strong words of caution that year from open-government advocates, including Common Cause and Honolulu First Amendment attorney Jeff Portnoy.
The late Desmond Byrne, state chairman of Common Cause at the time, warned that the proposed fees for locating records would be an invitation for agencies to evade disclosure by using sloppy or outdated filing systems, then using the resulting charges to discourage requests from the public.
“I don’t want to pay for their (agency) inefficiency,” he told the Star-Bulletin in a 1997 article.
Portnoy told the paper the rules created “far too many impediments to the expeditious disclosure of documents.”
There were a handful of sparsely attended public hearings in the summer of 1998 after then-Gov. Ben Cayetano gave the draft rules a green light.
By February 1999, the fee structure was in place. That same year, lawmakers in a separate action determined that agencies can charge “not less than 5 cents per page” for copying costs, another area of concern.
Since then, the OIP rules and state law have worked in tandem to determine how much a government agency can charge for public records. The public pays the hourly rates for the search and review of the records, plus however much the agency chooses to charge per page for copies of the documents.
The rules and state statute have remained unchanged for the past 15 years. The question today has become: What is a reasonable burden for the agencies to bear?
The process of creating the rules for the fees stands in contrast to the way the UIPA was established.
The UIPA was crafted from a general public consensus and the process remained open to public input throughout the law’s development.
But the rules governing fees were developed internally. Public hearings were held on the draft rules later.
Before UIPA, Hawaii had two conflicting laws — the Fair Information Practice Act and the Privacy Act — that made it hard for government agencies to know what records they could release to the public.
“It was as close to a crisis as you can get,” Lind said. “Huge categories of information were disappearing from the public arena because of privacy concerns.”
It had reached absurd levels. Lind said contracts were being withheld because they were signed by a public employee and the employee’s name could not be disclosed for privacy reasons.
It got so bad that in 1987 then-Gov. John Waihee empowered a nine-member committee, comprised of government, business, legal and media experts, to study the current laws, ask members of the public what they thought and make recommendations.
A four-volume report on public records and privacy emerged along with proposed legislation that formed the basis of the UIPA.
The law, which the Legislature passed in 1988, lays out the responsibilities, limits and penalties surrounding the disclosure of public information. And it gives authority to one agency, the OIP, to administer it.
The cost of public records is hardly discussed in the report by the governor’s committee. An early reference makes it seem obvious that cost should never be used to deter access.
“As an initial matter, it is clear that copying charges must not serve as a barrier to effective access,” the report says. “It should also be clear that even the goal of recovering fees for services rendered is of secondary importance.”
Lind, who served on the committee, told Civil Beat that cost was not a big topic of discussion over the course of the year the report was in the works. There hadn’t been any real contentious battles over cost at that point, he said.
“The assumption was there might only be very unusual cases where costs would be excessive and an agency should be able to recover those costs,” he said.
Instead, the committee’s work was driven by a need to reverse the government’s trend toward blocking access due to unreasonable privacy concerns.
In many ways, Lind said, the 1980s were a lot like today. There were revelations of government spying and fears about the misuse of data.
It was early in the Information Age. There were few home computers, but the government had recently gained a technological capacity to piece together lots of public information.
The first backlash against this was privacy legislation to protect personal records from misuse, said Lind, who is also a Civil Beat columnist. That became the primary factor for government agencies deciding whether information should be released.
Waihee’s committee, chaired by Robbie Alm, who was head of the Department of Commerce and Consumer Affairs, proposed the solutions that led to the law on the books today. Waihee and Alm did not respond to interview requests for this series.
Waihee’s task force may not have given much thought to the cost of public records, but OIP definitely did 10 years later when it finally got around to making the administrative rules.
As part of the process, OIP had to prepare an impact statement. It’s a lengthy document that says what the proposed fees would do, why they are necessary and their anticipated effect on the public and government operations.
The impact statement, released when Gray was director, says the purpose of the rules is to allow agencies to recoup some costs in responding to requests for government records instead of doing it all “entirely at taxpayer’s expense.”
The rules limit the fees to the “actual costs” in providing the services. But the public has little recourse to help fight a high estimate. If the OIP thinks the estimate was made in good faith, the only option is to appeal it to the courts.
Cayetano, as governor, didn’t take a strong hand in guiding the fees that the public would have to pay. He told Civil Beat in a recent interview that that he pretty much stayed out of OIP’s rule-making process. His focus at the time was on other areas, he said.
OIP may have been focused on giving the agencies a way to recover their costs for pulling records and making them available to the public.
But over the years the fee structure has evolved into a deterrent for frivolous requests and as a way to encourage people to narrow their search. State officials talk about “serial requesters” who pester agencies with numerous demands for information.
Brooks, the OIP staff attorney, recalled the story of a woman from the mainland who had a long history of making huge requests for information from many states. Eventually, it was Hawaii’s turn.
The woman was on a decades-long campaign to prove various personal theories. She had become convinced that she was President Eisenhower’s daughter and that she had been kidnapped by Germans before she immigrated to the United States. And she also believed she married a top Scientology official who is now in prison for her murder, Brooks said.
The woman wanted every government record with the word “Eisenhower,” “Scientology” and possibly “aliens,” Brooks said. But a high cost estimate thwarted the search and saved the agency hundreds of hours of work, she said.
“In a case like that, the fees basically serve as the deterrent. And I would say, in a case like that, appropriately,” Brooks said.
But others aren’t as trusting of the government’s intentions. Many attorneys, reporters and advocates for open records interviewed by Civil Beat are convinced that costs are often high on purpose to keep the information from being released. It’s tough to call the government’s bluff when hundreds, and sometimes thousands, of dollars are on the line. And the law doesn’t provide a practical way to challenge cost estimates.
“What about the person who’s working for minimum wage and works for the League of Women Voters or is working for Common Cause?” asks Jeff Portnoy, a Honolulu attorney who takes a lot of media cases. “I don’t look at these things from the journalist’s perspective, I look at these things from the public’s perspective. Civil Beat might have the money, the Star-Advertiser might have the money, but what about all the nonprofits and public interest groups? Where are they going to get the money?”
“The bottom line is that we don’t have a very open government, we haven’t for a long time and it doesn’t matter who the administration is,” Portnoy said. “We have a culture of wanting to eliminate as much public access as possible within the parameters of the law and sometimes beyond it.”
Coming Wednesday: Agencies say they need to cover their costs but admit they’re also disorganized