A few years ago, state prison officials kept getting sued because they were holding inmates past their scheduled release dates, sometimes for many months. It was a continuing problem not only in Hawaiʻi but throughout the country.

One local reporter asked the corrections department to run a computer search of its offender tracking database and pop out a list of release dates so she could see how many people were still being held when they should have already been set free.

The state sent her an estimate for $1 million to provide the information, saying it would take 187,000 hours to search the database. 

She appealed the cost to the state Office of Information Practices and, four years later, the corrections department adjusted its estimate — to $290.

That might be one of the most egregious cases of a public agency wildly overcharging someone who was trying to get information to help the public understand an important issue. 

But it is hardly the only instance. Civil Beat has been tracking public records costs and atrocities since it was launched 16 years ago, and there’s a laundry list of examples of agencies using excessive fees to thwart the release of what should easily be public information. More charitably — but just as bad from the public’s perspective — some agencies’ records are in such disarray that it’s tough to sort the public files from the private ones. It’s no wonder state officials drag their heels and complain that it’s such a burden to process a public request they shouldn’t have to.

Finally, OIP is updating its nearly 30-year-old public records rules to eliminate charges for records requests that are in the public interest —  essentially when the person or organization that obtains the record intends to and has the ability to share the information widely. OIP is also proposing to double fees for non-public interest requesters — law firms, commercial companies, internet sites that use government information — in an effort to better reflect today’s cost for staff time to process requests.

The fee waiver has been the holy grail of public records advocates for many years, and no one has pursued it more doggedly than Brian Black of the Public First Law Center. Since the law center was created in 2013, Black has tried to get the fees reduced in a number of ways. He’s urged governors to use executive orders to cut fees. He’s worked with lawmakers, drafting bills and testifying year after year. He’s worked with individual counties to try and make it less costly for people to obtain records at the local level.

Finally, a two-year effort to work with OIP and the Hawaiʻi Attorney General’s Office to rewrite the administrative rules seems to be paying off. OIP has scheduled a public hearing for Dec. 1 on the proposed rules, which have already received preliminary approval from the AG and the governor. Black hopes the new fee structure will kick in by spring.

He credits new leadership at OIP and a long-standing commitment by Gov. Josh Green to improve government transparency.

It’s been a long and bumpy ride. And like many things in Hawaiʻi that seem like they should be simple and doable, politics and personalities often got in the way.

Not So Public

Hawaiʻi’s public records law has been in place since 1988. It presumes all government records are open to public inspection unless specifically closed by law. The law anticipated fees but no rules were ever put in place to implement them until 1999. At the time, a House committee said OIP should “move aggressively against any agency that uses such charges to chill the exercise of first amendment rights.”

For nearly 30 years, the fees have been set at $10 an hour to search for a record and $20 an hour to review and redact (black out) information deemed to be confidential in the document. Copy fees are extra and not set by public records law.

In 2013, Civil Beat published a series exploring the high cost of public records in Hawaiʻi. As an example, we asked for then-Gov. Neil Abercrombie’s travel records since he took office. At the time, some ledgers and receipts were stuffed in those old brown accordion files, and they didn’t want a reporter just pawing through them. They did want $1,016 to cover more than 50 hours to find the records, review them and black out information the governor’s office considered private plus copying costs for what amounted to 1,420 pages.

That wasn’t the worst, though. The City and County of Honolulu wanted $11,000 just to tell us how many public records requests it had received in the previous two years. At one point, the state Department of Human Services wanted $123,000 to look at all public records requests it had received in the last year. Officials there said it would take 11,591 man-hours — or a year and four months — to search for the records and copy an estimated 2,500 pages of documents. 

Other agencies, including state offices, either handled the query for free or quoted us a few hundred dollars. 

For decades, despite the intent of the Legislature, public records fees have been consistently inconsistent. 

In 2018, following the false missile alert that for a short time had much of the public in a panic, Gov. David Ige’s office said it would cost $4,500 to produce emails to and from the governor’s staff on the day of the alert. Emails involving just four staffers would cost $1,500. 

Members of the public also have been regularly handed a gigantic bill for public information. Just last year, a Kahuku mom was researching why it cost so much to transport cheerleaders to football games. She asked the Department of Education a breakdown of each sports teams budgets for the past three years along with policies and documentation used to determine which teams got funding.

That would cost her more than $83,000, DOE said.

Driving Force Meets Brick Wall

Black and the law center (originally called Civil Beat Law Center for the Public Interest but changed to Public First Law Center in 2024) have been pushing for an elimination of fees for public interest requests for more than a decade. 

In 2014, he organized a coalition of local media and good-government groups that sent a letter to Ige asking for the fees to be eliminated through an executive order. But Ige proved to be no friend to the public when it came to making records more easily accessible. He all but ignored the coalition’s request until 2017 when he sent a memo to state agencies telling them they should help the public find ways to reduce the cost of processing records’ requests.

In 2017, Ige’s administration under then-OIP Director Cheryl Park — who was arguably worse than Ige when it came to making it easier for people to get access to records — proposed tripling the search and review fees, a move that was roundly opposed by good-government advocates and fizzled unceremoniously a couple years later.

In 2020, it was Ige who issued executive orders suspending the public records law during the pandemic, a move that lawmakers scrambled to reverse, and Ige backed off of it later in 2021.

When lawmakers unanimously passed a measure that capped fees for some requesters and eliminated fees for public interest requests in 2022, Ige vetoed it.

Josh Green, running for the governor’s office in 2022, declared his support for such a measure and government transparency in general. He let it be known he would have signed the bill without question.

For the next few years, bills drafted and supported by the law center were considered in the Legislature. But each was largely opposed by Park, who was still the OIP director, and state agencies who were happy to testify about the terrible strain of finding and producing public records. They argued that overworked state and county agencies shouldn’t be asked to pull records for the public for free or people would take advantage of that and requests would explode.

That prompted Black to do a study of just how many public interest requests we were talking about here. Turns out that true public interest requests, the kind that would be produced at no cost to the requester under the new fee rules and the kind we in the media like to trumpet as transparency horror stories, were few and far between. 

Logs kept by agencies and maintained by OIP show that public interest requesters account for fewer than 5% of all requests made. In 2022, the year Ige vetoed the legislation, the fees charged for records in the public interest only added up to about $5,000. 

Most records requests are made by law firms that need government documents for clients or commercial interests researching information on a specific property, for instance. More websites are springing up that post vast amounts of government information, too.

Then A Key Opponent Retires

Park, who had consistently opposed cutting back fees despite Green and the AG’s urging, finally retired in 2024 after 13 long years as head of OIP. Green quickly appointed her deputy, Carlotta Amerino, to take over and the work of reforming the fee schedule began, albeit slowly.

The difference between the Ige and Green administrations has been significant, Black told me. He contrasted Ige’s unwillingness to release records during the false missile alert to how Green handled information about the Lahaina fire, for instance, when his administration created a website and posted many documents online without charge. 

Green’s also never suspended the public records law in any of his emergency proclamations, either after the 2023 fire or in any other of his many emergency proclamations.

“I do think this will make a significant difference.”

Brian Black, Public First Law Center

The proposed rules still include a check on runaway records requests by the media or other public interest groups. The rules would give an agency the right to deny the public interest waiver for requests that are “unduly burdensome.”

Black defines that as a voluminous request seeking every record the government might have on a subject. “Framing a request as ‘I want any and all records about whatever topic'” would be a problem he says, because an agency might need to go to every person in the department and ask for all records over a long time period and search within that.

The new rules would force a requester to have a conversation with an agency and try to narrow down the request to get what they are really seeking, he says.

But even if a request was deemed “unduly burdensome,” the government would still be required to process it. It’s just the requester wouldn’t qualify for the public interest waiver and the search might be expensive.

So what’s to keep an agency from doing as they’ve done for decades and judge a request to be unduly burdensome, deny a public interest waiver and try to charge thousands of dollars?

Black says the Green administration has committed to making public information easier to access and already has issued an executive memo directing agencies to engage in dialogue with requesters. “You should be able to get to a point where someone who is acting in the public interest can get what they want, and it won’t be considered unduly burdensome.”

I’m much more skeptical, of course, having been on the receiving end of numerous responses to my public records requests that are the equivalent of telling me to get lost. And even if Green gets his folks in line, there’s still some semi-autonomous entities like the University of Hawaiʻi that don’t have to toe Green’s line as well as the city and the counties that would need to get on board with this concept.

“I do think this will make a significant difference,” Black says.

 And I hope he’s right. It’s been a long time coming.

The Public First Law Center, formerly the Civil Beat Law Center for the Public Interest, is an independent organization created with funding from Pierre Omidyar, who is also a co-founder of Civil Beat. Civil Beat Ideas Editor Patti Epler is a member of its board.