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SB2139’s cap on records fees would further public interest

The following testimony was submitted by the Grassroot Institute of Hawaii for consideration by the Senate Committee on Government Operations on Feb. 6, 2024.
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Feb. 6,  2024, 3:10 p.m.
Hawaii State Capitol
Conference Room 225 and Videoconference

To: Senate Committee on Government Operations
      Sen. Angus L.K. McKelvey, Chair
      Sen. Mike Gabbard, Vice-Chair

  From: Grassroot Institute of Hawaii
             Ted Kefalas, Director of Strategic Campaigns

RE: COMMENTS IN SUPPORT OF SB2139 — RELATING TO PUBLIC RECORDS

Aloha Chair and Committee Members,

The Grassroot Institute of Hawaii would like to offer its comments in support of SB2139, which addresses 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 as well as waiving the reproduction costs for the first 100 pages of a physical record if the disclosure is in the public interest. The bill also provides for a waiver of fees related to search, segregation and review 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 Department 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, this bill should be praised for seeking to eliminate reproduction charges for digital records, creating a public interest waiver for the first 100 pages of physical copies, and capping the fees for reproduction of physical copies.

In addition, this bill provides for a public interest waiver of fees related to search, review, and segregation of records. This is a laudable addition to the law and 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 requesters, and this waiver is the most important element of the current bill.

We do have one concern: the increase in the search, review and segregation costs, which currently are 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 the state Office of Information Practices 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.

In summary, SB2139 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 testify.

Ted Kefalas
Director of Strategic Campaigns
Grassroot Institute of Hawaii
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