Hill optimistic about public records bills, ‘but you never really know’

Imagine being asked to pony up nearly $350,000 to get access to public communications between the governor’s office and state agencies.

That happened to the Grassroot Institute of Hawaii when it requested records related to the COVID-19 pandemic from then-Gov. David Ige’s office, according to Institute Policy Director Malia Hill, speaking on Sunday with H. Hawaii Media radio host Johnny Miro.

“I think we could fairly say [that] was intended to discourage the request,” Hill added, “although they did waive $60 because the request was in the public interest.”

Hill said sometimes obtaining government records can be easy — if you get a cooperative agency.

“If you don’t, that’s a different story,” 

Hill said that when looking for public records, first you need to identify the agency that has the records you want, then fill out a form from the agency’s website. The tricky part, she said, is that you have to say exactly which records you’re looking for. And those records have to exist.

Then there are fees involved, such as those for copying or for locating the requested records. Hill said that the fees’ amount often depends on the request and the agency.

Hill said there are several bills in the 2023 Legislature that would make it easier for watchdog groups to get copies of public records, among them SB991 and HB719

Both bills, she said, “do the same thing,” which is “put a cap on the fees for record requests and allow fee waivers when a request is in the public interest.”

Asked to gauge the chance of the two bills passing, Hill said that in 2022, “a fee waiver bill passed, went right through both houses, ended up on Gov. Ige’s desk and he vetoed it.” 

This year, she said, “We’re hoping that Gov. [Josh] Green will view this more favorably. But you never really know until the very last day.”

To hear the entire interview, click on the video below. A complete transcript follows.

2-19-23 Malia Hill on Johnny Miro

Johnny Miro: It’s time for Sunday morning public access programming on this H. Hawaii Media radio station. Good Sunday morning to you. I’m Johnny Miro. 

It’s time once again for our Sunday morning public access programming on our five stations here on the island of Oahu. And that will be Oldies 101.1, K-Rock 101.5, Retro 97.1, THE X at 96.7 and Jazzy 107.5. 

And I have the pleasure once again of being joined by a member of Grassroot Institute of Hawaii, and that would be policy director Malia Hill. Good Sunday morning to you, Malia.

Malia Hill: Good morning.

Miro: Transparency. We hear that buzzword utilized by politicians all over the place. I mean, that’s the word. I mean, you could probably look it up; it’s the most utilized word in politics these days. We all want to be transparent. They’re all promoting and promising transparency, But are they truly? 

Corruption and bribery here, and Malia, making the headlines in Hawaii, just in the past year, we’ve had numerous government employees and politicians convicted of accepting bribes and abusing their power. 

A lot of people here, a lot of people in Hawaii fed up with it, and it looks like lawmakers might do something. Is that the case? Why is everyone asking, “Why does it seem so corrupt?” And are we really that much worse off than any other state?

Hill: You know, you’re right that it just seems like we just keep getting this news of corruption. It just seems everywhere. 

You know, you have the “mailbox conspiracy,” you have the FBI probes that have resulted, just fairly recently, in the arrests of several members of the Honolulu government under [Mayor Kirk] Caldwell’s administration. You have those bribery investigations. You’ve seen them target, you know, even county and civil servants going to jail.

So it definitely, you know, seems, it feels like a big problem has our attention. But, you know, statistically Hawaii isn’t generally considered one of the most corrupt states. It’s kind of common sense, if you think about it. It’s always Illinois, Louisiana, places like that, that usually end up at the top of the list of the most convictions for corruption, and even if they, you know, look at it per capita, then it’s Washington, D.C. Insert your own joke here for that.

Miro: Yes.

Hill: It’s on, at least, the list. But, interestingly, there’s a Harvard researcher who went and interviewed political reporters in different states for their perceptions of the government corruption there and Hawaii ended up being much higher on those lists, especially when it came to legal corruption, which is — contributions [that] are not strictly illegal. I mean money payments, contributions not strictly illegal, but they’re made to officials with the implicit understanding of a benefit. 

So, you know, something less than full bribery, and that pushed us up a lot higher on those corruption scores. 

But, you know, there’s something else going on here too, and it’s just, don’t attribute to corruption what could be explained by incompetence or inefficiency, and I think that might be one of the things that contributes to our belief in Hawaii that there’s this rampant corruption.

We might really just be seeing a waste or mismanagement with not a corrupt agenda. But it’s still, you know, equally frustrating and it kind of leads to this, you know, loss of faith in government either way. 

And either way, transparency is actually the answer. You know, when people can see government actions and decision-making, you know, whether you’re talking about incompetence and inefficiency or you’re talking about the corruption, you know, transparency is the prescription, the cure.

Miro: It seems like the truth will always come out, so in the initial stages they are always trying to, kind of, like, deflect and then try to find a way around it. But then again, it just comes right back to the truth every single time. 

Malia Hill joining us, policy director for Grassroot Institute of Hawaii, grassrootinstitute.org for more on that. 

I’m Johnny, and I know that one of the Grassroot Institute’s missions, Malia, is to promote accountable government and that often means asking government agencies for their records. Is that right? And can you explain to listeners just how to access public records and how that keeps the government accountable?

Hill: Yeah, sure. When we talk about transparency in government, we’re talking about really two facets. You know, you have your sunshine laws and your open records laws. 

And sunshine laws are the laws that give people access to government meetings. They, like, make sure that people know that meetings are happening, what’s going to be decided, on and off, you get the idea; and it’s pretty obvious how sunshine laws promote accountability. 

You know, you actually get to sit there and watch the government in action; it prevents them from getting away with anything in secret if there’s a meeting. 

But, you know, not all government actions are taking place in these public meetings. A lot of the working decisions are happening in different agency offices. You know, they also study the statistics that go into that decision-making, they’re put on record, and that’s also something that people need access to. 

So, you know, for example, talking about the decisions that were made during the COVID-19 pandemic. You know, why did the governor make the decisions he did? Who was advising him? What information did they …. 

You know, these are decisions that governed us for months and they’re being made in private, and access to those records, you know, those documents that answer all those questions, that gives people insight into the way government operates. It helps us make decisions as, you know, informed citizens, as voters, you know, what policies we might support or oppose, or how we feel about certain candidates, where we want the state to go, into what direction we want to go, and so on. 

That’s really at the heart of why transparency is important and why open records are important.

Miro: Yeah, it seems like that lack of transparency was brought about by the emergency declarations. A lot of things change when you declare an emergency. 

Now, is it hard to get a hold of government records? Isn’t that right? And what are some of the challenges that people might experience?

Hill: Well, you know, look, getting government records, making a request, it can be easy — if you get a cooperative agency. If you don’t, that’s a different question, different story. 

But to make a request, it’s pretty simple. You just need to identify the agency that has the records you want. 

You know, let’s say you want information about taxation, so you probably want to go to the Department of Budget [and Finance], the budget department, and then you just fill out this form. They have them on the website of the Office of Information Practices.

A lot of different agencies have the form on their own websites as well. It’s just a really simple form that asks, you know, your name, your contact information, so they can send you stuff, name of the agency, but you do have to fill it out and you tell them exactly what records you’re looking for. 

Now that is tricky. You do have to ask for records that exist. You’re not allowed to ask for the people who work in these agencies to compile, to basically do your research. They can’t create records for you.

But if you know that you want a specific email that the governor sent, or, you know, the check register for an agency, something that exists in the record, you just put that in there in your request and you send it on. 

And if you get a good — and, you know, there’s a lot of complaining here, so I feel like I should give some credit where credit is due — some government agencies in Hawaii are extremely helpful. I’ve made requests and they come back and say, “Oh, you know, are you really looking for this?” Or, “That’s a really big request that you’re asking for. You know, you may want to try to narrow it down,” or “You’d be better if you sent it to this specific person.”

Sometimes you get really helpful people and that’s fantastic and it makes it very easy. And, you know, they just come up with a copy of the records that you asked for and send it to you. Sometimes you don’t, though; sometimes it can be really hard.

Miro: So it doesn’t sound like you need to have a legal background. You can figure this out for yourself if you’re just interested in looking something up and you’re a lay person. It’s, [from] what I just heard, it’s fairly easy, the process, at least to find the information and the online information that you need.

Hill: It is. And the Office of Information Practices even has, you know, you can find little tutorials and extra, you know, advice and such, if you are worried about it. But it is meant to be something that anyone can do. You shouldn’t have to be an expert to make a public records request.

Miro: And the cost on this is free?

Hill: Well, that is the big question. [laughs] No.

Miro: [laughs] OK.

Hill: That is actually the subject of a bill that is currently in the Legislature. At the moment, they can charge you for the copying fees. There is a cap on it, but they can charge you for the fees to copy. They can charge you to locate the record that you requested and they call it segregating, basically pulling it out from all the other records that they keep. So there are fees associated with it. 

And again, what kind of fees you get, it kind of can depend on the request and the agency.

Miro: So is that one of the bills that you folks are also trying to get, you know, work on? I see there’s several bills in the Legislature right now that make it easier for watchdog groups like yourself at Grassroot Institute to get copies of records. And what would those bills do, Malia?

Hill: Well, you know, the ones I was talking about, the most significant are, there’s actually two: the Senate and the House version. Senate Bill 991 and House Bill 719. And they both do the same thing. They’re bill brother and sisters. 

They put a cap on the fees for record requests and they also allow fee waivers when a request is in the public interest. So, for, often that means with media or, you know, research groups, think tanks and such that are asking for requests that are to, you know, inform the public and such.

And what that does is, you know, I said that sometimes you get a helpful agency. Well, sometimes you don’t. 

Miro: Um-hm.

Hill: Sometimes agencies use fees as a way to discourage requests. For example, I was working on trying to find out about asset forfeiture in Hawaii and I asked the attorneys general’s office for all of the records that they had for a certain number of years that followed specific asset forfeiture cases. And they came back and said it would be several thousand dollars.

Miro: Hmm.

Hill: And when Grassroot Institute did a request to Gov. [David] Ige’s office regarding communications between their office and specific agencies during the COVID-19 emergency, they came back with a cost of $342,876.

Miro: [laughs] OK.

Hill: Yeah, which I think we could fairly say was intended to discourage the request —  although they did waive $60 because the request was in the public interest. How about that?

Miro: They waived $60, huh?

Hill: Yes.

Miro: OK.

Hill: So you can see you can use fees to frustrate government transparency. So there’s proposal in these bills to cap those records or fees and waive them completely for the public interest. That’s actually a pretty big step towards more transparency.

Miro: And I believe you mentioned [the] Office of Information Practices earlier. There’s been some criticism about the open records law centered on that office. Is the Legislature considering ways to help that office become more effective?

Hill: You know, there have been bills, or there were bills, that were heard and introduced that would have, you know, changed the Office of Information Practices’ directive a little bit, given them the ability to offer guidance instead of a ruling in case of dispute, would’ve given them some more staff funding. Those bills just got deferred and might be dead, so I don’t know whether that’s going to happen. 

But it’s sort of bigger than that because, you know, what we need this criticism of the Office of Information Practices is sort of about what their philosophy is.

You know, ideally, you want them to be biased towards promoting transparency and not, you know, for example, trying to protect the agencies involved or trying to expand the room that they have with old records. 

You know, that current backlog at OIP is about three years right now. And that might be one of the reasons why people who are frustrated with their records request, are, you know, choosing to file lawsuits if they’re trying to appeal through OIP, you know. 

And then there’s the fact, while I’m just smacking around OIP, is that, you know, there’s some bills that I would say are going sort of in the wrong direction, like SB720, which creates an exception to the open records law for documents that are predecisional or deliberative.

You know, they try their best to put some limits on this: What does it mean if a document is deliberative? But you can also see, you know, I explained how agencies use fees to discourage requests that obviously agencies can use as sort of — “Oh, is this about something that we haven’t quite … it’s predecisional, it’s deliberative” — try to use that to evade requests. 

And I think it’s worth noting that the Office of Information of Practices testified as strongly in favor of this, and, you know, I just think that gives you an idea of where they’re, sort of, compromised in their approach to transparency and openness.

Miro: Yeah, that sounds so. Malia Hill from Grassroot Institute of Hawaii, and you can find her work and others at grassrootinstitute.org

I’m Johnny, and of course, transparency isn’t just about getting copies of records. It’s also about letting people watch the government in action. So are there any efforts to improve public access to meetings, hearings and the like?

Hill: You know, this is one of those things, you always see this push-pull going on, and especially in the earliest days of legislative session, because there’s always someone, an agency, a county council, that wants to try to, you know, put some limits on public access to meetings. 

And then there are often bills that try to improve public access, maybe by, you know, putting in new ideas about remote access to hearings and such.

Most of those bills, it seems, have died, but this is something we see year after year. I know one that was alive for a little while this year was an attempt to sort of deal with when people can give testimony at county council meetings. 

One bill that is still alive right now is Senate Bill 1513, which requires a board to report on the decisions taken or actions taken during their closed sessions. 

In theory, this is a good thing because, you know, these closed sessions and the executive session they tend to be this, had, in order to evade openness. 

And so my requiring those boards to explain what happened, you know, that could be a good thing, but only if eventually the final bill makes it clear that this is an additional thing they have to do, not, you know, it can’t be used in a way to try to excuse being an executive session longer than you’re supposed to, which is something that does happen on occasion.

Miro: OK, so what’s the chance of these transparency bills passing? Does anyone oppose them? It seems just pretty straightforward, you know.

Hill: You know, it always amazes me, because I feel like, “Oh, this seems so obviously simple and good. Why does it have so much opposition?” You know, like, the fee waiver bill that I was talking about, the capping fees, the fees of public interest, that passed last year. Went right through both houses, ended up on Gov. Ige’s desk and Gov. Ige vetoed it. 

So that just kind of shows you that even something that just seems like, you know, common sense but good bill, it just isn’t guaranteed to pass. 

You know, we’re hoping that Gov. [Josh] Green will view this more favorably and that, you know, we’ve made some changes that will address any concerns that there might have been that contributed to the veto. But, you know, you never really know until the very last day if the governor vetoes, I guess.

Miro: Well, I mentioned this earlier, but in the past, I know Grassroot Institute has been concerned about the governor’s emergency powers, and during the COVID-19 crisis you all worked on a bill that would allow the Legislature greater authority over the governor when it came to emergency orders. 

What happened with that bill, and are there any other emergency powers bills that you’re watching this session, Malia?

Hill: Well, you know, there’s only really one emergency powers bill that’s still alive this year, which disappoints me, because I agree emergency powers reform is extremely important. And just because, you know, we’re not currently living under emergency rule doesn’t mean that it still isn’t worthy of reform. 

But, as I said, the only bill still alive is SB767, which prevents the governor or mayors from suspending open records or vital statistics requests in an emergency. 

Very famously and notoriously, Gov. Ige did exactly that, during the early days of the COVID-19 emergency, and got a lot of criticism for it, since Hawaii is the only state that ended up suspending its open-record laws, and there’s still really no explanation as to why it was necessary. 

The law has a provision that gives agencies extra time to respond if there’s an emergency, and the bill that’s now going to the Legislature explicitly says that, just to make sure that everyone understands.

You know, I think it’s really an important issue because I think we need more transparency, not less, in a time of an emergency, because that is when it’s really important people trust the government and the decisions that are being made.

Miro: Exactly. There’s been a lot of talk about the Foley Commission and the Commission to Improve Standards of Conduct. It was formed last year to propose some new ethics rules and laws. And if I’m not mistaken, Malia, how are its recommendations faring in the Legislature? Would enacting them make a dent in Hawaii’s corruption? 

Hill: You know, I think there are some really good, really good suggestions that comes out of the Foley Commission report. And of course, you know, I think it’s important to note that they elevated transparency as one of the three ways that they identified to improve ethics and standards of government. And I do think that a lot of these recommendations would make a big difference. 

You know, a lot of the report is about the influence of money in politics, strengthening oversight and ethics. And there have been a lot of bills about ethics in government, you know, rules about campaign contributions, and so on and so forth. We’ll see how those fare as they run into the real world of the Legislature.

But I’m “fingers crossed” on the transparency reform because that cap on fees that, you know, we discussed was also part of the Foley Report. And again, it just underlines how that public access to open records is part of ethics in government.

Miro: Can I ask you a wild-card question? I think I’ve got one or two more questions left. The word corruption is being used here. 

We don’t know and we don’t know the status on something [former U.S. attorney for the district of Hawaii] Kenji Price initiated with the rail, that investigation speaking of transparency, or do you folks have any insight on how that’s going, what direction it’s taking because it’s really dropped off the radar?

Hill: You know, that is a fantastic question because it’s one of those things that every few weeks I check. You know, what do we know? Do we know what’s happened? You know, are there any updates? 

And I think the rail is a really good example of this question about corruption because we’ve seen all these corruption reports, this civil servant, you know, even something as simple as the permitting department has corruption. 

And we see how the rail goes, and we say, “It must be corruption. It’s got to be corruption.” And then we see, you know, there’s an investigation and so that makes us feel like it’s definitely corruption.

And we see the bad things that, you know, bad reports on the rail, “This was done wrongly, this needs to be fixed.” And we think, you know, “It has to be corruption.” And maybe it is or maybe it’s just mismanagement. [laughs] And I think that’s something that we need to think about. 

And, in a sense, either way, it prompts us to take action. You know, just because it isn’t corruption, if it’s just mismanagement, is that better? 

That’s why I think, you know, the transparency is the answer to both because, you know, just mismanagement is not a good excuse, and the fact that the rail is notoriously a little bit difficult to get answers from, you know, just deepens that mistrust. 

So we have that mistrust that leads us to say, “Oh, it must be corruption.” Whether it’s corruption or inefficiency, and incompetence, I do think a lot more transparency is needed out of rail.

Miro: Yes, one day maybe we’ll find out in this lifetime. 

  1. Malia, even if these bills we discussed passed, the governor still needs to sign them — the new governor, Gov. Green. And I know the Grassroot Institute was part of a letter to Gov. Green in support of greater transparency. Can you tell us a little bit more about the letter?

Hill: Yes, of course. You know, it’s a top-down kind of thing because the governor can do a lot to, sort of, set the culture for transparency all through the government, especially because a lot of the agencies you make requests to, you know, they ultimately respond to the governor. 

So, you know, we want the governor to support specific bills like the fee waiver, like the emergency bill. 

But the letter — which was actually from the Civil Beat Law Center, originated with them, and we signed on along with a bunch of media organizations, including good-government groups — it took a broader view too, because it asked the governor to embrace a presumption towards openness, just a whole cultural shift where agencies, instead of looking for reasons to withhold, they just start from the presumption that something should be released unless there’s an obvious reason then not to. 

And of course, the letter also discusses the need for the fee waiver. And it also talked about the need to restore the original purpose of the Office of Information Practices, which is supposed to be to promote openness.

Miro: OK. Did the governor respond to the letter, and do you think that he’d support these bills?

Hill: You know, he did respond positively to the letter and we have been told that his office will be looking at the specific proposals that were made in it. That’s somewhat less than, you know, what we would like, which I think is probably a standing innovation, and of course I am 100% on board. 

But still, the positive response does make us a little optimistic. And we hope that he will end up supporting, you know, these bills. 

Even so, it’s just the first step because this is really about changing the culture in a state where there’s just not this full embrace of openness and transparency. And that’s what we need to do; we need to change the culture in order to see what we want changed in the law.

Miro: A lot of information as usual, courtesy of Malia Hill from Grassroot Institute of Hawaii. Anything else to add before we say aloha this Sunday morning?

Hill: Just that I hope that people, you know, demand transparency and, you know, take advantage of their rights to be active and make record requests and show up at public meetings and so on. You know, really, that’s the best way to sort of drive out these questions of corruption or mismanagement or incompetence or waste.

Miro: Thanks so much for joining us once again. Look forward to another conversation. We’ll be speaking soon, I’m sure. Malia, have a great Sunday, and once again, thanks so much to the people at Grassroot Institute of Hawaii available at grassrootinstitute.org.

Hill: Thank you.



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