The following testimony was submitted by the Grassroot Institute of Hawaii for consideration March 16, 2022, by the House Committee on Government Reform.
To: House Committee on Government Reform
Rep. Angus L.K. McKelvey, Chair
Rep. Tina Wildberger, Vice Chair
From: Grassroot Institute of Hawaii
Joe Kent, Executive Vice President
RE: SB3252 SD2 — RELATING TO PUBLIC RECORDS
Dear Chair and Committee Members:
The Grassroot Institute of Hawaii would like to commend the Legislature for considering this bill, SB3252 SD2, which touches on a significant problem encountered in open-records requests: the use of high search and reproduction costs as a method to discourage the pursuit of a Uniform Information Practices Act request.
Specifically, the bill would impose a cap on fees for reproduction of public records as well as on the searching, reviewing and segregating of such records.
In addition, the bill provides for a waiver of the first 100 pages of reproduction costs, if disclosure is in the public interest; waives costs for duplication of records in electronic format; and provides for a waiver of fees when the public interest is served.
As an educational research organization and public watchdog group, the Grassroot Institute of Hawaii often uses open-records requests to shine the light of transparency on the inner workings of government. Our UIPA requests run the gamut, from requests for records of budget and financial documents to requests for details of the plans for the Honolulu rail project.
In the course of our work, we have seen that some government agencies are more forthcoming than others, and that there are varying interpretations of the public-interest-fee waiver. Thus, some agencies will waive all costs associated with the search — as the statute clearly intended — while others will use the waiver as a “discount” of sorts, reducing but not waiving the search and reproduction fees.
On occasion, an agency will quote such a high fee requirement that accessing the requested records becomes an impossibility for the average person — or even a researcher or journalist.
For example, in 2021, the Grassroot Institute requested three years of administrative forfeiture records from the Office of the Attorney General. As this was to be part of a report on asset forfeiture in Hawaii, we requested a waiver in the public interest. The Attorney General’s Office quoted a total cost of $2,190 — only $10 of which related to reproducing records — which included a $60 “fee waiver” because the request was in the public interest.
On another occasion, we requested communications between the governor’s office and certain agencies regarding the COVID-19 emergency — a nearly identical request to one filed by The Associated Press. The office quoted a total cost of $342,876 for the request, which included a $60 “fee waiver” because the request was in the public interest.
One might suggest that this request was too broad, in which case, it would have been more in keeping with the intent of the open-records law to discuss a way to narrow the request, as other agencies often do, rather than producing a cost quote intended to avoid any disclosure at all.
By including a clarification that waivers in the public interest are intended to apply to the search, review and segregation fees in their entirety, this bill would go a long way toward ending the use of high costs as a way to dodge record requests.
We do have one concern: the increase in the search, review and segregation costs, which are currently set at $2.50 per 15-minute increment of searching time and $5 per 15-minute increment of review and segregation time.
We urge you to cap those costs at the current rate rather than increasing them to $5 and $7.50, respectively.
We understand the desire to discourage nuisance requests or the abuse of the open-records law, but agencies should not be able to avoid disclosure of public records through the use of high fees. There are other avenues available to help address an overbroad request or “fishing expeditions,” such as a dialogue about reducing the scope of a request, delayed fulfillment of the request, and guidance from the state Office of Information Practices, among others.
In summary, SB3252 SD1 has the potential to improve transparency and open government in our state by strengthening the public interest element of the law.
Thank you for the opportunity to submit our comments.
Executive Vice President
Grassroot Institute of Hawaii