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Hawaii's Public Records: High Fees Are Keeping Public Information Secret

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STACKS OF PAPER
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Neil Abercrombie’s job as Hawaii governor takes him around the world.

Tourism meetings in Tokyo. A trade show in Los Angeles. A forum in Beijing.

Those kinds of trips sound pricey. But independently reviewing the travel expenses to see if they are worth taxpayers’ money is definitely cost-prohibitive.

And Abercrombie is running for governor again. Who’s to say he’s not mixing public business with campaign activities?

One way to keep tabs on the public’s money is to review the governor’s travel records. That’s pretty standard procedure for journalists in most states, especially when an incumbent is up for reelection.

But it’s tough to do in Hawaii. The cost of public records effectively invalidates the state public records law in many instances. It’s just too expensive for the public to pay the price the agencies charge to review records that are legally available under the Uniform Information Practices Act, Hawaii’s decades-old public records law.

Take the governor’s travel records, for instance. Civil Beat asked for all his travel records and related expenses since he took office on Dec. 6, 2010. (Read more details of the request and the governor's response here.)

Abercrombie’s office told us that would cost $1,016.

The governor’s office said it would take more than 50 hours to find the records, review them and black out information the office considers private. That would cost $945.

Add $71 to copy 1,420 pages at 5 cents per page.

Amy Luke, executive assistant to the governor’s chief of staff, said the estimate was based on a similar request that was ultimately abandoned by Boston-based MuckRock News. The governor’s office told MuckRock it would cost $522.50 for Abercrombie’s travel records. She said the estimate for Civil Beat was higher because we wanted the cost of the security detail, too.

“The fees are simply prohibitive for what should have been a basic document,” MuckRock Editor Michael Morisy told Civil Beat.
MuckRock asked seven states in March for their governor’s travel records. Hawaii charged the most by far. Alaska was second highest at $120. California and Arizona fulfilled the request for free, according to MuckRock’s online database.

Over the past four months, Civil Beat has interviewed media outlets, attorneys, nonprofit directors and other people who use the public records law to obtain information but have sometimes been thwarted in their efforts because of the high cost.

Honolulu attorney Jeff Portnoy, who handles many First Amendment cases, says the prohibitive cost of records is a widespread problem in Hawaii. High fees can keep important information out of citizens’ hands and shield government operations from public view.

“There are agencies that have developed a defensive mechanism to producing documents, starting with charging so much that the requester is either unable or unwilling to go forward with the request,” Portnoy said. “That’s wrong ... it is the public policy of the state that government should be conducted in the open.”

The Research Effort

Civil Beat wanted to examine just how much of a problem the cost of public records is in Hawaii, beyond simple anecdotes. In July, we 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. This form is called a Notice to Requester, generally a two- to three-page document that says whether a record is public and how much the charge will be to provide it.

It seemed simple enough, but the responses varied wildly from one agency to the next.

Many agencies don’t track their public records requests in a systematic way, such as filing all requests in a central place. Some officials told us they would have to dig back through two years of files to find out what sorts of public records requests had come in, let alone what the cost would have been to provide the records.

Of the 29 state agencies we requested records from, 11 fulfilled the request within a few weeks at no charge. Four have asked for more time. And we have yet to hear back from the Department of Land and Natural Resources or the Office of Hawaiian Affairs, despite follow-up phone calls and emails.

A number of agencies, including the City and County of Honolulu, wanted to charge us for our request. Their estimates ranged from $3 to more than $11,000.

So what’s the overall cost of finding out the cost of public records for the past two years?

So far, that would be at least $2,400 for the state agencies plus $11,240 for Honolulu. We still haven’t received an estimate for records from Maui. Hawaii and Kauai counties gave us their records for free.

We decided to take the next step. We invested $400 to see what some of those agencies are charging for the records people are seeking.

To date, we’ve collected some 350 Notices to Requesters from 25 agencies, including the agencies that provided the records at no cost. Hundreds more are available from the other agencies, but we decided to hold off paying for those after receiving what appears to be a solid sampling.

Generally, those records show that agencies don't charge unreasonable fees when the record request is a simple one. But the costs soar when the record seeker wants more than just a single record or wants to look more closely at the background of a government action.

The Department of Education turned over bid and contract information on food services to Interflex Inc. for $38, most of that to copy 140 pages at 25 cents a page.

Friends of Lanai, a citizens group that has been fighting to keep wind farms off the island, wanted to see what was going on with a plan by Lanai's former owner, billionaire David Murdock, who had retained the rights to develop a wind farm even after he sold the island to Oracle CEO Larry Ellison. The state wanted $170 just to find and process any emails or other communications from a nine-month period in 2012 between energy director Mark Glick, the governor, federal energy officials and Murdock or his company, Castle & Cooke. The Notice to Requester obtained by Civil Beat didn't include a copying fee.

But when someone asked for all the documents relating to grants for two different electric vehicle companies, the Department of Business, Economic Development and Tourism said it would cost $1,470 for the 110 hours it would take to find the documents, review them and redact any confidential information.

The Rules About Costs

State administrative rules allow agencies to charge $10 per hour to search their files for records, $20 per hour to review records — which generally includes redacting information the government thinks should be kept private — and at least 5 cents per page for copies. An agency can waive the first $30 for general requests and $60 if it’s “non-commercial” and in the public interest. It also has the option to waive the fees altogether at its discretion.

The Office of Information Practices was created in 1988 to administer the public records law, Chapter 92F. The office established the rules setting the fees 11 years later, in 1999.

Looking forward, state officials say the fees agencies can charge may need to be increased to help recover more of the cost. The rates, which haven’t been reviewed since they were first put in place, don’t account for today’s higher employee salaries, said Jennifer Brooks, OIP staff attorney.

The UIPA became law in 1988 after Gov. John Waihee formed a committee to thoroughly examine how the existing laws governing the release of public records were working and what should be done to fix them.

“In a democracy, citizens must be able to understand what is occurring within their government in order to participate in the process of governing,” the committee wrote in its December 1987 report on public records and privacy. “Of equal importance, citizens must believe their government to be accessible if they are to continue to place their faith in that government whether or not they choose to actively participate in its processes.”

Today, it’s clear the UIPA hasn’t always lived up to its original vision of greater public access. And the problems seem to have only compounded when the state finally implemented the administrative rules that determine how much agencies can charge for records.

The Reality of Hawaii’s Public Records Process

Earlier this year, Michelle Sarmiento Salvas wanted a copy of all the policies, directives, training information, guidelines and other written material that guides Kauai Police Department officers in 16 different areas, ranging from how they handle confidential informants and arrests to maintaining evidence and doing drug busts.

The Kauai Police Department told her in June that would cost her $252,000. And KPD said it wouldn’t be able to provide all the records. Some are confidential to “avoid the frustration of a legitimate government function,” officials said.

KPD estimated Salvas’ request 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.

Salvas abandoned the records request.

“Access to public records is an access to justice,” said Kauai attorney Dan Hempey, who has fought the county over its application of the open records law. “It’s one of the most important issues in our democracy.”

In another extreme example, the Honolulu Police Department wanted more than $100,000 in February to provide a Texas attorney with 24,258 mugshots.

The department told the attorney it would only take 30 minutes to compile the information, but that it would charge him $4 per photograph, resulting in a $97,032 fee. HPD also wanted the attorney, who never followed through on his request, to pay $4,305.25 for photocopying 16,000 pages of records.

Sometimes the cost of a records request depends on who gets there first — or last.

Civil Beat asked the governor’s office in October 2012 for all communications to and from the office that were related to the now-defunct Public Land Development Corporation.

Unbeknownst to Civil Beat at the time, the Sierra Club had made essentially the same request. The nonprofit was first to write a check though, and paid $500 for the documents. Civil Beat got the vast majority of the same records a few weeks later — for $230.

Sometimes records requests just die because the cost is too high.

KITV asked the City and County of Honolulu in September 2012 for a copy of its rockfall risk study. The study identified places around Oahu where homes were in danger of being destroyed by falling rocks.

KITV News Director Chuck Parker couldn’t recall the exact amount the city wanted for the study, but said it was high enough — hundreds of dollars — that the station was going to abandon the request.

But a few months later, the city finally released the rockfall study at no charge. KITV ran an exclusive story in January about the city finalizing the hazardous rockfall list after spending a decade surveying areas around the island that threaten public safety and property.

“In some cases, yes, the cost is a barrier,” Parker said.

He recognizes the agencies are on solid legal ground in charging for public records but, he noted, the fees need to be reasonable.

“In a way it’s like a corporation,” Parker said. “Shareholders in a corporation have a right to know what the officers of the corporation are doing because they have a stake in the outcome.

“Taxpayers, likewise, have a stake in what the government does. And they have a right to know what the government is doing. And since the government is of, by and for the people, it should embrace the concepts of disclosure and transparency.”

Government agencies are also inconsistent — and unbending — in the way they assess fees, a review of the records we collected from the state and counties shows.

The Department of Commerce and Consumer Affairs’ Board of Massage Therapy wanted a personal check or money order for 25 cents to fulfill a request for a one-page transcript.

The agency said it would only take 15 minutes to find the record, so that would cost $2.50. The general waiver of $30 took care of that fee.

But copying fees are separate. So the state insisted the woman making the request give them 25 cents in advance — check or money order only — before she could have the piece of paper.

The Department of Education received our request for the Notices to Requesters on July 11. Six weeks later, DOE told us it would take seven hours to find the records, review them and redact any confidential information. Add 40 to 50 pages at 25 cents per page, for a total estimated fee of $70.

Civil Beat sent the department a check and, over the next five weeks, inquired periodically how the request was coming. Last week, we received the first “increment” in what the agency said would be five increments. This batch included five Notices to Requesters; three had minor redactions to black out personal phone numbers but that was it.

Three months after our initial request, we have 10 pages and are waiting for the next installments.

Hawaii isn’t the only state where both the public and the agencies are frustrated by the public records process.

Civil Beat looked into public records fees across the country and found that it’s often a struggle to balance the cost of staff time to get the records together with the public’s legitimate interest in getting the information in a timely fashion.

In some states, the problem has gotten to the point that lawsuits have been filed and legislation passed to significantly reduce or even eliminate the costs of obtaining public records.

“No matter what you do there is a cost associated with this function of government, and the question is how is that function allocated,” said Jeff Hermes, director of the Digital Media Law Project at Harvard University’s Berkman Center for Internet & Society.

“If the cost is not coming from the requester, it’s coming from the taxpayer elsewhere. With that being the case what’s the fair allocation?”

Nick Grube contributed to this story.

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