The following testimony was submitted by the Grassroot Institute of Hawaii for consideration by the Senate Committee on Ways & Means and the Senate Committee on Judiciary on April 6, 2023.
April 6, 2023
Conference Room 211
To: Senate Committee on Ways and Means
Sen. Donovan M. Dela Cruz, Chair
Sen. Gilbert S.C. Keith-Agaran, Vice Chair
Senate Committee on Judiciary
Sen. Karl Rhoads, Chair
Sen. Mike Gabbard, Vice Chair
From: Grassroot Institute of Hawaii
Joe Kent, Executive Vice President
RE: HB719 HD1 SD1 — RELATING TO PUBLIC RECORDS
Dear Chair and Committee Members:
The Grassroot Institute of Hawaii would like to commend the Legislature for considering this bill, HB719 HD1 SD1, 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 Uniform Information Practices Act requests.
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 costs for duplication of records in electronic format, waives reproduction costs for the first hundred pages if disclosure serves the public interest; 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 state Office of the Attorney General. As this was part of an effort to research and report on asset forfeiture in Hawaii, we requested a waiver in the public interest. The AG’s Office quoted a total cost of $2,190. This included a $60 “fee waiver” because the request was in the public interest; only $10 was related to reproducing records.
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 for the agency to discuss with us a way to narrow the request, as other agencies often do, rather than producing a cost quote intended to avoid any disclosure at all.
All of which is to say, HB719 should be praised for proposing public interest waivers and caps on reproduction and search fees. This would be a laudable addition to the law that would go a long way toward addressing the use of fees as an obstruction to open-records requests.
It is often through sky-high search and review costs that agencies are able to discourage open-records requests, and this proposed waiver is the most important element of the current bill.
We do have one concern regarding the fees set forth by this bill: the increase in the search, review and segregation costs, which are currently set by the state Office of Information Practices 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.
Alternatively, we suggest that the Legislature remain silent on the search and review costs, leaving them to OIP to determine via rule, rather than setting the cost via legislative action.
We understand the desire to discourage nuisance requests or 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.
A note about the deliberative process exception
It has been suggested that this committee is considering amending this bill to include an exception to Hawaii’s open records law for “deliberative and pre-decisional” government inter- and intra-agency records concerning an agency decision about a government action.
We maintain that a deliberative-process exception would frustrate the intent of the state’s transparency laws, which by making government deliberations and actions available to the public are meant to ensure accountability and discourage corruption.
Based on our experience, we can attest to the fact that this exception would give agencies leeway to withhold nearly anything under the claim of “deliberative process.” Moreover, it would encourage agencies to conduct key government functions in a way that could shield them from disclosure.
Though the Legislature or OIP may try to delineate what documents can be deemed “predecisional” and therefore withheld under the exception, the inherent conflict between the public interest in disclosure and the agency’s desire to withhold, as well as the ambiguity of the “deliberative process,” will guarantee challenges and disputes.
Much of the work done by government agencies is deliberative in nature and an agency that is determined to obstruct records requests is incentivized to categorize large numbers of documents as “predecisional.”
A particularly secretive agency could even organize its activities in such a way as to classify more and more of its records as deliberative in nature.
From the point of view of a government watchdog organization, the deliberative exemption guarantees that requests to certain agencies will turn into endless battles over what, if anything, must be disclosed to the public.
Moreover, this exception is not necessary. It has not existed in Hawaii law for many years and there is no evidence that the lack of such an exception has frustrated the ability of government agencies to carry out decision-making processes.
If government agencies are concerned about privacy or disclosures that obstruct their ability to carry out their duties, there already are exceptions in the law that would address such issues. There is nothing remarkable about the deliberative process in itself that warrants special treatment.
Given the need to restore public trust in Hawaii’s government, we believe that more transparency, not less, is the best route forward.
It is our belief that an exception for government records related to decision-making runs counter to the spirit of Hawaii’s Uniform Information Practices Act. Its statement of purpose and rules of construction very clearly include disclosure of agency deliberations and the decision-making process.
HRS Ch. 92F-2 states: “Therefore the legislature declares that it is the policy of this State that the formation and conduct of public policy — the discussions, deliberations, decisions, and action of government agencies — shall be conducted as openly as possible.” (emphasis added)
To stay true to the intent of the law means that any exception should be biased toward timely disclosure, not secrecy.
It may be possible to reduce the potential negative impact of a deliberative process exception through wording that limits its application and length. However, that would not eliminate the problems highlighted above.
If the Legislature must introduce a deliberative process exception, we believe it should be of very limited duration and include a sunset clause that does not allow for automatic extension.
In summary, the cost cap and waivers in HB719 have the potential to improve transparency and open government in our state by strengthening the public interest element of the law. We urge you not to dilute their impact through the creation of a new way to avoid disclosure and openness.
Thank you for the opportunity to submit our comments.
Executive Vice President
Grassroot Institute of Hawaii