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Hawaii may be an archipelago of abundant sunshine, but when it comes to public records the state often operates in the shadows.
The cost of accessing government documents is a frequent deterrent. And when it’s not the money, agencies can keep records out of reach by delaying requests for weeks, months or to the point they become irrelevant.
There are signs that things are getting better, such as certain departments putting more information online, but it’s been spotty. Without systemic improvements, the public is often left struggling to gain a clear picture of how taxpayer dollars are spent or why key decisions are made.
The governor’s office sets the tone and general policy for how state agencies respond to requests for public records. The governor also appoints the head of the Office of Information Practices, which is tasked with administering the state’s open records law.
With the Aug. 9 primary fast approaching and the Nov. 4 general election not far behind, Civil Beat asked the top gubernatorial candidates what they thought about the issue of accessing public records in Hawaii.
We interviewed the incumbent, Gov. Neil Abercrombie, and his Democratic primary opponent, state Sen. David Ige. We also talked to the expected Republican challenger this fall, former Lt. Gov. Duke Aiona. A spokesman for Hawaii Independent Party candidate Mufi Hannemann said the candidate couldn’t fit in an interview, and questions submitted to the campaign were not answered.
The candidates share a similar belief that there should be a charge for public records and that the problem is finding the right balance between allowing access while compensating for a government worker’s time to produce them. None of the candidates support eliminating fees or overhauling the way things are currently being done.
“We are moving in the right direction for public access to government records in Hawaii.” — Gov. Neil Abercrombie
Abercrombie has made some strides to improve access during his past three-plus years in office, but Hawaii still remains about the farthest thing from a model state for government transparency.
When asked what he thought about the current state of affairs of the public’s ability to access government records, Abercrombie touted a transparency website his administration quietly launched in January and an April report listing Hawaii as the second-most improved state for transparency.
The most recent PIRG report noted one of the improvements was the Department of Budget and Finance launching a website that creates a “one-stop source for Hawaii’s expenditure and financial information, and even provides the data in charts, graphs, reports and tables.”
The website, transparency.hawaii.gov, has not been promoted and it launched without so much as a news release. For those aware of its existence, the information can be useful, like being able to find out how much certain state contracts are worth. But it’s also incomplete, including years worth of gaps in tax credit data.
Still, Abercrombie sees a positive trend and has ideas for future improvements.
“We are moving in the right direction for public access to government records in Hawaii,” he told Civil Beat in an email.
“Over the next four years, I would like to continue to have the Office of Information Technology and Management (OIMT) implement some of the long overdue technological improvements for our state,” he said. “These will benefit all government operations, greatly improve transparency and make government more ‘user friendly.’”
The office received roughly 1 percent of the state’s overall $11 billion operating budget in 2013. The head of OIMT, Sonny Bhagowalia, said at the time that best practices call for 3 percent to 5 percent. The Legislature approved just over half of what he requested for the following year, which was about half of what was actually needed.
“Let’s be honest, when you come in and make a request for documents, you’re wasting our time and we’re wasting your time.” — Lt. Gov. Duke Aiona
As chair of the Senate Ways and Means Committee, Ige has significant influence over how state funds are appropriated. When the current biennium budget was being finalized in May 2013, he said lawmakers were able to find millions of dollars to get certain technology initiatives off the ground but had to make compromises to fund competing interests.
Ige is no stranger to digital investments. He was behind the Senate’s paperless initiative in 2008. The goal was to reduce paper consumption while increasing access to the hundreds of bills and reams of testimony that move through the Legislature each year.
“We thought the Senate could be leaders for the rest of state government to follow,” Ige said.
The Senate has slashed paper consumption from 9 million pages to 1 million, saving hundreds of thousands of dollars in the process.
“The Xerox guys hated us,” Ige said.
He said he sees many opportunities like that available throughout the state that would allow for a more open and accessible government.
Aiona, who was lieutenant governor during Linda Lingle’s administration, said it makes a difference if the governor speaks to departments and lets them know they need to cooperate and comply with open records laws.
Like Ige and Abercrombie, Aiona supports putting as much information online as possible — and promptly.
The issue of public records has to be made a priority, Aiona said.
“Let’s be honest, when you come in and make a request for documents, you’re wasting our time and we’re wasting your time,” he said.
Putting the information online saves time for both sides, Aiona said.
“It’s not only that it’s a waste of time, but it also creates the impression that government is trying to hide something and we don’t need that, “ he added.
As governor, Aiona said his office would help OIP any way it could, but said it’s really at the “end of the food chain” when it comes to budget priorities.
Instead of fighting an uphill battle to fund more attorneys for OIP, Aiona said he would advocate for laws that give OIP more teeth so people don’t have to go to court if an agency ignores a ruling on the release of records.
Abercrombie, by contrast, supports a bill his administration introduced and the Legislature approved in 2012 that involves the courts more in public records issues. The law, which took effect Jan. 1, 2013, lets agencies appeal OIP decisions in court as opposed to giving OIP the final say on whether a document should be released, for instance.
“This has helped to provide clarity to OIP in following the sunshine law,” he said.
Abercrombie said OIP has done well in recent years. He gave credit to Cheryl Kakazu Park, whom he appointed in April 2011, and her staff for handling and logging the multitude of open-records requests the state receives.
Over the past several years, Ige said, OIP has been more inclined to protect state departments from having to provide information rather than helping the public access it.
Like Aiona and Abercrombie, Ige sees a balance to the responsibility of agencies to respond to records requests. But it’s one that may have become too skewed in favor of government.
“I don’t think the requirement should be government drops everything every time there is a public information request,” Ige said. “But it should be a priority of each department.”
Aiona said he wants to make everything faster, both in terms of OIP issuing decisions on requests and agencies responding to the public.
OIP has been backlogged for years with requests for formal opinions on access to records and public meetings.
OIP sent out a press release last week about its first formal opinion of the year, which was dated June 5. That opinion, regarding a citizen being denied access to a city attorney’s legal opinion on a planning matter, came in response to an April 2011 request.
The only other formal opinion OIP has issued in 2014 came out at the same time, although the decision letter is dated June 13. It was regarding a December 2012 request asking if the Board of Land and Natural Resources had violated the Sunshine Law.
Aside from both opinions coming out several weeks after they were written — not to mention years after the requesters sought OIP’s help — they both were in favor of the government agency, not the public.
Aiona said it’s just not acceptable for OIP to be as backlogged as it is, releasing opinions that are no longer relevant.
When asked about the cost of accessing public records, the candidates said there has to be a balance. They were unclear on where that line should be drawn, but said it’s an issue that needs to be examined.
State agencies can currently charge $10 an hour to search and $20 an hour for an employee to segregate the records, which involves reviewing them for confidential information and blacking out those parts. Copying fees come on top of that and vary wildly from one department to the next because state law simply says agencies must charge at least 5 cents per page.
These fees are sometimes waived, often charged in full and at times effectively block access to the records.
Abercrombie’s response to a Civil Beat request for the governor’s travel records last year prompted a five-part series on public records in Hawaii.
In June 2013 we asked for all his travel records and related expenses since he took office Dec. 6, 2010, which is a pretty basic watchdog request that’s fulfilled for free in many states. His office said that would cost $945 for an estimated 6.5 hours to find the records, 47 hours to segregate them, plus $71 to make copies.
“We never envisioned cost becoming a deterrent for public information.” — Sen. David Ige
Civil Beat has since worked with the governor’s office to get the records on a more affordable, piecemeal basis. The stories have shed light on what trips Abercrombie has taken, who he has spent time with and how much it has cost taxpayers.
As part of the public records series, Civil Beat in July 2013 asked dozens of state and county agencies to tell us what they had charged for public records requests in the past two years. Specifically, we requested a copy of the replies that the agencies send to someone who asks for a public record, generally a two- to three-page document called a Notice to Requester.
It’s been a year and some agencies, including the departments of Education and Land and Natural Resources, have yet to fulfill this basic request for information.
Ige said when the Legislature created a law allowing agencies to charge for records requests, it it was to cover the nominal cost of copying it or accessing it.
“We never envisioned cost becoming a deterrent for public information,” he said.
Ige and Aiona both said lawmakers ought to consider placing a limit, as other states do, on how much an agency can charge for a request.
“I’m for open government but by the same token I’m also aware of the burden that some requests can have on certain agencies,” Aiona said.
The highest charge uncovered by Civil Beat’s public records series was by the Kauai Police Department.
A citizen last summer asked for a copy of all the policies, directives, training information, guidelines and other written material that guides KPD officers in 16 different areas, ranging from how they handle confidential informants and arrests to maintaining evidence and doing drug busts.
KPD said that would cost her $252,000 because it would require 4,560 hours to find the records and 10,200 hours to review and separate them. The copying charges alone for the estimated 12,150 pages, at 25 cents a page, would be $3,000.
Aiona said the “right amount” to charge for public records is fair-market value — whatever Kinko’s might charge plus the labor.
Abercrombie also noted that “there is a cost to handling these documents and doing so in a legally correct manner.”
The governor requested a deputy attorney general position in his 2014 budget to assist with all open-records requests statewide but the Legislature cut it out.
“I believe this would have improved service as well as potentially reduced costs but unfortunately, the position wasn’t funded,” he said.
In the meantime, the public’s ability to access government records in Hawaii remains a mixed bag. Some agencies are capable of responding to complicated requests within hours and charging nothing. Others balk at the first notion of a public records request.