The Office of Information Practices ("OIP"),
following public hearings, adopted administrative rules entitled
"Agency Procedures and Fees for Processing
Government Record Requests."
These rules, which took effect on February 26, 1999,
are set forth in Chapter 71 of Title 2 of the Hawaii Administrative
Rules. The OIP was required to adopt these rules by the Uniform
Information Practices Act (Modified) ("UIPA").
The Impact Statement below was prepared as part of the rules drafting
IMPACT STATEMENT FOR PROPOSED RULES OF
THE OFFICE OF INFORMATION PRACTICES
ON AGENCY PROCEDURES AND FEES FOR
PROCESSING GOVERNMENT RECORD REQUESTS
II. Proposed Rules and Explanations
§ 5-41-1 Purpose
§ 5-41-2 Definitions
§ 5-41-11 Informal
§ 5-41-12 Formal requests
§ 5-41-13 Agency response
to formal request
§ 5-41-14 Agency notice
§ 5-41-15 Time limits for
§ 5-41-16 Extenuating circumstances;
§ 5-41-18 Segregation of records
§ 5-41-19 Location of disclosure;
§ 5-41-20 Payment of fees; prepayment
§ 5-41-21 Public access
to disclosable government records provided by a secondary source
§ 5-41-31 Fees; exceptions
§ 5-41-32 Fee waiver in
the public interest
§ 5-41-33 Fees charged for records determined
to be confidential
III. Effect on Agency Operations
IV. Final Result Expected
V. Financial Impact on the State
VI. Impact on the Public and Economic Growth of
VII. Other Alternatives
The Uniform Information Practices Act (Modified),
chapter 92F, Hawaii Revised Statutes ("UIPA"), requires
the Office of Information Practices ("OIP") to adopt certain
administrative rules as follows:
§92F-42 Powers and duties of the office of information
practices. The director of the office of information practices:
. . . .
(12) Shall adopt rules that set forth an administrative
appeals structure which provides for (A) agency procedures for processing
records requests; (B) a direct appeal from the division maintaining
the record; and (C) time limits for action by agencies;
(13) Shall adopt rules that set forth the fees and
other charges that may be imposed for searching, reviewing, or segregating
disclosable records, as well as to provide for a waiver of such
fees when the public interest would be served;
. . . .
Haw. Rev. Stat. § 92F-42(12), (13) (1993). Consequently,
the OIP is proposing rules in chapter 41 of Title 5, Hawaii Administrative
Rules, that will set forth agency procedures for processing record
requests, time limits for agency action, and the fees that an agency
may charge for searching, reviewing, and segregating records.
Every state and county government agency, as defined
in proposed rule § 5-41-2, shall be governed by these rules.
The proposed rules in this chapter specifically relate to those
procedures and policies that all agencies must follow when responding
to record requests under part II of the UIPA. The OIP's proposed
rules concerning the appeals procedures to be followed when an agency
denies access to a record will be set forth in another chapter.
In December 1995, the OIP circulated an initial draft
of these proposed rules to other State and county agencies. The
OIP received written comments and suggestions concerning the draft
rules, and held six meetings to discuss the draft rules with representatives
from agencies of the State and the City and County of Honolulu.
In response to the agencies' suggestions and concerns raised in
the written comments and at the meetings, the OIP amended the draft
rules. This impact statement identifies those rules provisions that
the OIP proposed or amended in response to the feedback from agencies.
II. PROPOSED RULES AND
A. PROPOSED RULE § 5-41-1
EXPLANATION OF PROPOSED RULE § 5-41-1
This proposed rule sets forth the purpose of the rules
in this chapter. As explained in the "Introduction" of
this Impact Statement, the UIPA requires the adoption of rules setting
forth the matters described in this rule. See Haw. Rev. Stat. §
92F-42(12), (13) (1993). This set of proposed rules is limited to
setting forth the procedures for responding to requests for public
access to records, while the procedures for responding to requests
from individuals for personal records about themselves will be set
forth in another chapter that is not discussed in this impact statement.
The purpose of establishing fees is to allow agencies
to recoup some costs in responding to requests for government records
rather than having to provide the search, review and segregation
services entirely at taxpayers' expense. The proposed rules do provide
agencies the option of establishing their own fees for the search,
review, and segregation of records that are limited to the actual
costs of providing these services. This option is proposed for those
agencies that informed the OIP of their operational requirements
to recoup the actual costs in providing these services. Although
this option prevents the uniform application of one fee schedule,
the OIP recognizes that one fee schedule cannot practically address
the different needs and circumstances of all the State and county
agencies that will be governed by the OIP's rules.
However, the assessment of fees for search, review,
and segregation is not intended to obstruct public access to disclosable
government records. Thus, under these proposed rules, the fees shall
not exceed the actual costs in providing the services. The UIPA's
legislative history states:
It is the intent of your Committee that such charges
for search, compilation, and segregation shall not be a vehicle
to prohibit access to public records. It is the further intent of
your Committee that the Office of Information Practices move aggressively
against any agency that uses such charges to chill the exercise
of first amendment rights.
H. Stand Comm. Rep. No. 342-88, 14th Leg., 1988 Reg.
Sess., Haw. H.J. 969, 972 (1988).
B. PROPOSED RULE §
EXPLANATION OF PROPOSED RULE § 5-41-2
This proposed rule provides the definitions for terms
used in this chapter. Definitions for the terms "access,"
"record," and "requester" underscore that these
proposed rules address procedures for responding only to requests
for access to public records, and not to requests for access to
one's own personal records. As requested by agencies, the OIP included
definitions for the terms "disclosable record," "formal
request," "informal request," and "prepayment."
This chapter uses certain terms and their definitions
from the UIPA. Although several agencies have asked that this proposed
rule repeat the UIPA's definitions rather than merely refer to the
UIPA, the OIP finds that, as a practical matter, the reference to
the UIPA eliminates the need to amend this rule should the definitions
in the UIPA be amended later. Furthermore, in accordance with the
rulemaking format set forth by the revisor of statutes, administrative
rules should incorporate applicable sections of the Hawaii Revised
Statutes by reference and should not repeat the statutory sections.
See Haw. Rev. Stat. § 91-4.2 (1993); Hawaii Administrative
Rules Drafting Manual 2d ed. § 00-4-2(a)(1989).
The definition of the term "government record"
that is used in the UIPA and, in turn, these proposed rules, is
broad because it encompasses any record in any physical form that
is maintained by an agency. See Haw. Rev. Stat. § 92F-3 (1993).
Hence, the term "government record" includes unofficial
copies of another agency's records, records that are in an agency's
temporary possession or retention, and records that are publicly
available elsewhere. Agencies must comply with the procedures set
forth in these proposed rules when receiving a request for any government
The definition of the term "maintain" is
taken from the Uniform Information Practices Code, a model code
that was drafted by the National Conference of Commissioners on
Uniform State Laws and upon which the UIPA was modeled ("Model
Code"). The OIP has issued several advisory opinions that refer
to the Model Code's definition of the term "maintain."
See, e.g., OIP Op. Ltr. No. 92-25 (Dec. 22, 1992); OIP Op. Ltr.
No. 95-15 (May 8, 1995).
In addition, several other terms used in this chapter,
and their definitions, are modeled upon similar provisions of the
federal Freedom of Information Act, 5 U.S.C. § 552 (1988) ("FOIA"),
and the Uniform Freedom of Information Act Fee Schedule and Guidelines,
established by the federal Office of Management and Budget ("OMB
Guidelines"). It is useful for the OIP to refer to the FOIA
provisions and OMB Guidelines for guidance because most State and
county agencies have not established agency procedures or fees for
the search, review, and segregation of records to which the OIP
In particular, the definitions for the terms "search,"
"review," and "segregate" are modeled after
those used in the OMB Guidelines. 52 Fed. Reg. 10012, 10017 (1987).
As defined in the OMB Guidelines, the term "review" does
not include the time spent resolving issues of general law or policy
about the application of exemptions from disclosure. This part of
the definition repeats the express qualification on review fees
set forth in the FOIA, 5 U.S.C. § 552(a)(4)(A) (1988).
Similarly, proposed rule § 5-41-2 includes this
qualification in the definition of the term "review,"
so that no fee for review of a record is charged for time spent
by the agency, the OIP, or any other person or agency that has an
interest in the record, to resolve issues about access. The OIP
is developing a training program about the UIPA for agencies so
that they become more familiar with and can readily apply the UIPA's
access provisions, as well as the procedures set forth in these
proposed rules. Also, as defined, the term "review" does
not include the time spent by an agency in assessing what records
are being requested for access, preparing a notice in accordance
with proposed rule § 5-41-14, or returning a record back to
its original location.
Notably, the definition of the term "access"
covers both inspection and copying of a government record. The UIPA
allows both inspection and copying of any record that is not exempt
under the UIPA's exceptions. Thus, the procedures in these proposed
rules must address both inspection and copying of records.
C. PROPOSED RULE §
EXPLANATION OF PROPOSED RULE § 5-41-11
Informal requests are treated outside the formal procedures
established under the UIPA and these proposed rules. As explained
in proposed rule § 5-41-12, and for evidentiary purposes, a
person has recourse to the procedures, rights, and remedies under
these proposed rules and the UIPA only when the person has submitted
a formal request. For this reason, proposed rule § 5-41-11,
provides that a request is presumed to be and shall be treated as
a formal request when the request complies with proposed rule §
5-41-12, which lists the contents required of a formal request.
A requester and an agency may agree to treat a formal request as
an informal request, and the agency should make a note of this agreement
on the request.
This proposed rule explains that requesters may informally
make requests for access to records in any form--in person, by telephone
or e-mail, or by any other method. An agency receiving an informal
request has the option of working on the informal request, or instructing
the requester to submit a formal request. The agency may charge
the appropriate fees for responding to informal requests as provided
under proposed rule § 5-41-20.
An agency may find it expedient and efficient to act
upon informal requests as often as possible, and may set their own
procedures on how to respond to them. Many agencies already have
existing procedures for responding to requests that the agencies
can continue to follow when responding to informal requests. For
example, an agency that receives an informal request may orally
inform a requester that the record requested for access is confidential
or is not maintained by the agency.
The OIP cautions that agencies cannot prohibit a requester
from using an alias or require the requester to reveal the requester's
identity or business affiliation when the requester is seeking access
to disclosable records. See OIP Op. Ltr. No. 90-29 (Oct. 5, 1990)
(in general, if a record is subject to public inspection, any person
may inspect and copy the record).
When an agency denies access to a record that was
the subject of an informal request, this proposed rule provides
that the requester then has the option of submitting a formal request
for the same record in order to have recourse to the procedures,
rights, and remedies afforded by these rules and the UIPA, including
the time limits for agency action and the right to appeal an agency's
denial of access.
D. PROPOSED RULE §
EXPLANATION OF PROPOSED RULE § 5-41-12
This proposed rule explains that, by submitting a
formal request for access to a government record, the requester
shall be afforded the procedures, rights, and remedies provided
under these proposed rules and the UIPA. This proposed rule then
describes that a formal request must be in writing and must contain
the items of information listed in this rule.
Formal requests help to minimize unnecessary misunderstandings
between an agency and the requester concerning whether the requester
has, in fact, requested access to records, and which particular
records are the subject of the request. As discussed later, an agency
may ask the requester to clarify the request for particular records.
An agency may prefer to require requesters to submit all requests
as formal requests; however, the agency must then comply with the
procedures set forth in these rules, including providing written
notice, when required, and adhering to time limits for responding
and providing access to records. When the OIP provides training
to agencies on these rules after they are adopted, the OIP will
provide a sample formal request format that agencies and the public
can use as a model formal request.
RIGHT TO APPEAL DENIAL OF RECORD ACCESS
Importantly, a requester's right to appeal an agency's denial of
access to a record is one of the rights afforded to a requester
who submits a formal request. Under section 92F-15, Hawaii Revised
Statutes, any person aggrieved by an agency's denial of access to
a record may bring an action to compel disclosure in circuit court
within two years after the agency's denial. Also, under section
92F-15.5, Hawaii Revised Statutes, the person may file an administrative
appeal of an agency's denial with the OIP.
A formal request and the agency's written response
provide the best evidence of the facts so that review by the OIP
or the court is focused on resolving legal issues concerning access
to the records, rather than factual issues regarding the record
requested and the agency's response. As a requester can bring a
court action up to two years from the time of the agency's denial,
the formal request and the agency's response to it may be the only
evidence documenting the submission of a request and the failure
of the agency to respond. The time limits for filing an appeal with
the OIP will be set forth in administrative rules in another chapter
that the OIP is required to adopt in accordance with section 92F-42(12),
Hawaii Revised Statutes.
REQUIRED CONTENTS OF A FORMAL REQUEST
This proposed rule requires the requester to provide certain items
of information in a formal request. These items include information
that would allow the agency to correspond with or contact the requester,
which may consist of a name (including an alias), mailing address,
and telephone number where the requester may be reached. This requirement
does not make the actual name of the requester a condition for access
to a record, but rather only allows the agency to contact and correspond
with the requester regarding the request. If a requester is uncomfortable
providing the requester's actual name, the formal request is valid
even if the requester provides a pseudonym or alias so long as the
requester ensures that mail or telephone calls will be properly
routed to the name, mailing address, and telephone number provided
in the request.
Notably, however, if the formal request includes a
request for a waiver of fees in the public interest, the requester's
identity is part of the information that must be provided in order
to determine whether the request qualifies for the waiver.
[Footnote: When an individual requests access to personal records
about the individual, the individual must provide verification of
the individual's identity. Verification of an individual's identity
will be set forth in the OIP's proposed rules in another chapter
regarding procedures for an individual's access to personal records.]
The requirement that a formal request must provide
a reasonable description of the record requested is similar to the
FOIA's requirement that requests "reasonably describe"
the records sought. 5 U.S.C. § 552(a)(3)(A) (1988). According
to the FOIA's legislative history, a description is sufficient if
it enables a professional federal employee, who is familiar with
the subject area, to locate the record "with a reasonable amount
of effort." H.R. Rep. No. 876, 93d Cong., 2d Sess. 6 (1974).
If possible, the description should include the record name, subject
matter, date, location and any other additional information that
reasonably describes the requested record.
If the requester believes that a waiver of fees would
serve the public interest in accordance with proposed rule §
5-41-32, the requester should request the waiver in the formal request
for records, and provide a statement of facts supporting the waiver
request. A requester's statement of belief that the requester is
entitled to a waiver is not determinative. Rather, the agency must
determine, from the statement of facts provided by the requester,
whether the requester meets the criteria for a waiver under proposed
rule § 5-41-32.
A requester must state in the formal request whether
inspection or duplication of the record, or both, is being requested.
Proposed rule § 5-41-19 provides guidance regarding the location
of inspection and the means of providing a copy. As previously explained
with regard to the definition of the term "access," the
UIPA allows both inspection and copying of any record that is not
exempt under the UIPA's exceptions. Thus, the procedures in these
proposed rules must address equally both inspection and copying
Several agencies have inquired about what actions
they must take to comply with the federal Americans With Disabilities
Act ("ADA") when a requester is unable to prepare a formal
request because of a disability. Agencies should consult with their
deputy attorneys general or corporation counsel regarding compliance
with other State and federal laws, such as the ADA, that are outside
of the OIP's jurisdiction. Generally, when a requester cannot prepare
a formal request, for example, because of illiteracy, the requester
may have another person assist in preparing the actual formal request
in writing. The UIPA neither prohibits nor requires that an agency
provide such assistance.
E. PROPOSED RULE §
(Agency response to formal request)
EXPLANATION OF PROPOSED RULE § 5-41-13
This proposed rule requires the agency to respond
to a formal request within ten business days after receiving a formal
request. The agency must respond to a formal request for access
to a government record that the agency maintains in one of the following
ways: (1) provide a written notice, (2) disclose any disclosable
record requested, (3) deny access to confidential information, or
(4) provide a written acknowledgment. The OIP's first draft of these
proposed rules had required an agency, in all cases, to provide
a written notice within ten days of receiving a formal request.
In response to comments received from agencies, this proposed rule
has been redesigned to provide additional options so that an agency
may determine the most efficient manner of initially responding
to a formal request.
When an agency sends either a written notice or written
acknowledgment to a requester by mail, the cancellation mark of
the mailed notice or acknowledgment may be considered evidence of
compliance, or lack thereof, with this proposed rule's time limit
of ten business days. This proposed rule's time limit is similar
to the time limit set forth in the FOIA. Under FOIA, a federal agency
must determine within ten business days after receiving a FOIA request
whether to comply with the request, and must promptly inform the
requester of its determination. 5 U.S.C. § 552(a)(6)(A) (1988).
Several agencies noted that a written notice in response to each
and every formal request adds to agencies' workload. Hence, this
proposed rule allows an agency to provide access to a record within
the ten business day period without having to provide a written
notice when the agency will be charging fees of $15 or less for
processing the request under proposed rule § 5-41-20. However,
when an agency is denying access to a record, the agency must provide
the written notice that sets forth the information required under
proposed rule § 5-41-14(b). This notice sets forth the information
about the agency's denial of access that may be reviewed by the
court or the OIP if the requester decides to appeal this denial.
The requirement that an agency's denial of access, as well as the
request itself, be in writing best serves the appeals process by
allowing the focus of an appeal to be on the legal issues rather
than issues of fact.
Under this proposed rule, an agency would provide
a written notice to the requester when the fees for processing the
request exceed $15, or when the agency will not be providing record
access within the ten business day period. Proposed rule §
5-41-14 sets forth the items of information that the agency's notice
must contain. Written notice is required to be provided so that
the requester is informed about the estimated amount of fees that
will be charged for processing the record request. Upon receiving
this notice, the requester may choose to modify or abandon the record
request in order to reduce the fees that will be charged. Also,
under proposed rule § 5-41-14, the agency's notice may instruct
the requester to make a prepayment consisting of the estimated fees
before the agency begins processing the request. If prepayment is
required, an agency is not required to begin processing the request
until prepayment is received in accordance with proposed rule §
5-41-15. Hence, a written notice allows both the requester and the
agency to receive important information from each other regarding
the processing of the request.
AGENCY ACKNOWLEDGMENT OF REQUEST RECEIVED
When the OIP circulated the first draft of these proposed rules,
several agencies noted that there may be extenuating circumstances
that prevent an agency from even providing written notice within
the ten business day period after receiving the request. For this
reason, where such extenuating circumstances do exist, this proposed
rule provides agencies the alternative of sending a written acknowledgment
of the request informing the requester that the agency will send
the written notice within ten business days thereafter. The written
acknowledgment can be a simple form letter. Thus, sending a written
acknowledgment should not unjustifiably increase an agency's paper
workload, but rather it allows an agency ten extra business days
to prepare the written notice when extenuating circumstances exist.
DIRECTING A REQUEST TO ANOTHER UNIT OF THE AGENCY
Subsection (b) of proposed rule § 5-41-13 gives options to
a unit of an agency about handling a record request that it received
but that should have been directed to another unit of the agency.
Several agencies informed the OIP that their agencies consist of
several satellite locations, and that these satellite locations
may find it difficult to be responsible for forwarding all requests
to the appropriate unit that will respond to the requests, as was
provided in this proposed rule's previous draft version. Under this
proposed rule's current version, an agency may choose to select
just one of these options to apply consistently to all misdirected
requests and instruct all of its units accordingly. In response
to agencies' comments, subsection (c) of this proposed rule clarifies
that the time limit for responding to a request does not begin until
the appropriate unit of the agency for responding to the request
receives the request.
F. PROPOSED RULE §
EXPLANATION OF PROPOSED RULE § 5-41-14
The contents of an agency's notice to a requester
depend upon whether the agency intends to disclose or deny access
to information in the requested record, or is unable to disclose
the requested record for one of several reasons set forth in this
proposed rule. Thus, the notice requires the agency to preliminarily
review the request to determine: (1) what record is being requested
or if a better description is needed, (2) whether the record requested
is maintained by the agency and, if so, (3) whether the record is
disclosable, confidential, or both. The notice requirements for
incremental disclosure are discussed in the explanation of proposed
rule § 5-41-16.
AGENCY INTENDS TO DISCLOSE RECORD
When an agency intends to disclose the requested record and will
charge fees for responding to the record request, as authorized
by proposed rule § 5-41-20, the agency must include in the
notice an estimate of the fees and the amount of the prepayment,
if any, that the requester must tender in accordance with proposed
rule § 5-41-20. When informed of the estimated fees in the
notice, the requester may choose to modify or abandon the request
to reduce the fees that will be assessed.
The agency's notice must also give information about
the location where the record will be available to the requester,
as well as any instructions to the requester regarding any additional
arrangements that the requester must make to inspect or copy the
records. For example, the notice may instruct the requester to call
an agency employee to schedule a date and time to come in and inspect
AGENCY INTENDS TO DENY ACCESS TO INFORMATION IN RECORD
When an agency intends to deny access to information in the requested
record, the agency's notice must state each part of the record that
the agency is keeping confidential, and the legal authority, under
the UIPA or other laws, for keeping that part confidential. This
information about the agency's denial of access will be reviewed
by the court or the OIP if the requester decides to appeal this
denial. The requirement that an agency's denial of access, as well
as the request itself, be in writing best serves the appeals process
by allowing the focus of an appeal to be on the legal issues rather
than issues of fact (i.e., whether in fact the agency denied access).
This proposed rule requires only that the agency's
notice cite the applicable legal authority for confidentiality.
As previously mentioned, the OIP will make training available to
the agencies about the UIPA so that the agencies will be familiar
with the UIPA's provisions, particularly with the UIPA's exceptions
to disclosure so that the agencies can readily cite them. With regard
to problematic records, the agency may also consult the OIP.
The OIP's previous version of these draft rules had
required agencies to specifically explain the basis for keeping
information confidential, but agencies informed the OIP that this
requirement would require legal expertise that agency personnel
preparing the notice do not have. However, if the requester appeals
the agency's denial of access, the agency should be prepared to
reasonably explain why they believe that the UIPA provision, or
other law, cited provides the legal authority for keeping the information
Where a requested record is made public after certain
confidential portions are segregated, the agency's notice must meet
the requirements of both subsections (a) and (b) of proposed rule
§ 5-41-14. Specifically the agency must: (1) inform the requester
that access to the disclosable part of the record will be provided
after the specified procedures are followed, as well as (2) describe
the parts that are confidential and cite the legal authority for
the denial of access.
AGENCY IS UNABLE TO DISCLOSE REQUESTED RECORD
When an agency is unable to provide access to a requested record
for one of the reasons provided in this proposed rule, the agency's
notice must explain why the agency is unable to do so. From the
agency's notice, the requester should be able to determine what
actions to take, namely whether to request the records from another
agency that has the record requested, or submit further description
or clarification of the record.
When an agency asserts that it does not maintain the
record, the assertion should be based upon the agency's reasonable
belief derived from its understanding of its record systems and
its actual efforts to locate the requested record. An agency has
a duty to conduct a reasonable search for the requested record,
and should document the efforts taken to search for the record.
The adequacy of the search can be challenged on an appeal. See generally
United States Dep't of Justice, Freedom of Information Act Guide
& Privacy Act Overview 24-25 (Sept. 1995) (discussion of the
adequacy of an agency's search for responsive records under the
Under section 92F-11(c), Hawaii Revised Statutes,
agencies are not required to compile information in response to
a records request, unless the information is readily retrievable.
The language of this statute is identical to section 2-102(b) of
the Uniform Information Practices Code, entitled "Duties of
The commentary to this section of the Uniform Information
Practices Code states:
The policy [of not requiring an agency to compile
information] . . . is most important to agencies with manual record
systems. In computerized record systems, however, agency retrieval
capabilities are significantly greater . . . [Therefore t]he request
. . . [should be granted] if the data could be routinely compiled,
given the existing programming capabilities of the agency.
[Emphasis added.] Uniform Information Practices Code,
Comment to section 2-102(b) [Duties of Agency]. See also OIP Op.
Ltr. Nos. 90-35 (Dec. 17, 1990) and 92-7 (June 29, 1992).
As each agency has unique and varied degrees of programming
capabilities and each agency faces different restraints upon its
ability to respond to a records request, the OIP has determined
that specific rules in this area may be unduly restrictive to both
the agency and the requester. Therefore, the question of what is
readily retrievable should be decided on a case-by-case basis, giving
due consideration to the factors set forth in the OIP's opinion
letters on this subject matter.
If an agency determines that a summary or compilation
of information is readily retrievable, then an agency may, where
extenuating circumstances exist, take additional time to prepare
the summary or compilation in accordance with proposed rule §
5-41-16, or the agency may choose to disclose the information incrementally
if the criteria for incremental disclosure are met.
G. PROPOSED RULE § 5-41-15
(Time limits for disclosure)
EXPLANATION OF PROPOSED RULE § 5-41-15
This proposed rule sets forth the time limits that
an agency must follow when disclosing records under the UIPA. In
those cases where the agency requires, from the requester, a prepayment
or written assurance of fees payment in accordance with proposed
rule § 5-41-20, an agency is not required to disclose the records
until after receipt of the requester's prepayment or written assurance.
In this way, an agency is not required to further process the request
should the requester choose not to provide the prepayment or written
assurance and, thus, abandons the request as provided in proposed
rule § 5-41-17.
Furthermore, this proposed rule recognizes that, when
extenuating circumstances exist in accordance with proposed rule
§ 5-41-16, an agency may be unable to process a record request
within the time limit of ten business days set for most requests.
Therefore, the proposed rule allows an agency up to thirty additional
business days to provide access to records where extenuating circumstances
exist, and further allows the agency to disclose records incrementally
if the criteria for incremental disclosure in proposed rule §
5-41-16 are met. Where the agency will be extending the time period
for responding to a request, in accordance with proposed rule §
5-41-14, the agency must state in the notice to the requester both
the extenuating circumstances that justify this extension, as well
as the date when the agency will disclose the record, or the first
increment if disclosure will occur incrementally. The time limits
for disclosing records incrementally will be discussed in the explanation
of proposed rule § 5-41-16.
In comparison, the FOIA only specifies a time limit
of ten business days for federal agencies to notify requesters of
their decision to grant or deny access to requesters, and access
to disclosable records should be granted promptly thereafter. The
FOIA does allow an extension of up to ten additional days for federal
agencies to provide notice under situations that are specified by
the FOIA to qualify as "unusual circumstances." 5 U.S.C.
§ 552(a)(6)(B) (1988). Unlike federal agencies that have FOIA
offices or officers to exclusively handle requests for records access,
State and local agencies generally must juggle their duties under
the UIPA with other statutory duties. For this reason, this proposed
rule § 5-41-15 provides a longer time extension of thirty days
than is provided under the FOIA for responding to a request where
extenuating circumstances exist.
H. PROPOSED RULE §
(Extenuating circumstances; incremental disclosures)
EXPLANATION OF PROPOSED RULE § 5-41-16
This proposed rule defines what qualifies as "extenuating circumstances,"
under which an agency has up to thirty additional business days
to respond to a formal request.
[Footnote: In comparison, the UIPA allows an agency up to twenty
additional working days to respond to an individual's request for
access to personal records about that individual if the agency provides
to the individual "a written explanation of the unusual circumstances
causing the delay." Haw. Rev. Stat. § 92F-23 (1993). This
standard of "unusual circumstances" is more stringent
than the standard of "extenuating circumstances" used
in proposed rule § 5-41-16.]
In comparison, under FOIA, a federal agency may extend
the time period for responding to a request up to an additional
ten business days in "unusual circumstances," which FOIA
defines as three specific situations: (1) the need to search for
and collect records from separate offices; (2) the need to examine
a voluminous amount of records in order to respond to the request;
and (3) the need to consult with another agency or agency component.
5 U.S.C. § 552(a)(6)(B) (1988).
This proposed rule's criteria for "extenuating
circumstances" include consideration of those factors which
affect an agency's ability to respond to a request as well as the
efforts an agency must perform to respond to that particular request.
Thus, this criteria is broader than the FOIA's criteria for "unusual
circumstances." As previously noted, unlike federal agencies
that have FOIA offices to exclusively handle record requests, State
and county agencies generally do not have staff assigned only to
responding to record requests. This proposed rule expressly recognizes
that agencies must juggle several statutory duties and functions
at the same time by including, as an extenuating circumstance, the
agency's need for additional time to respond to a request in order
to avoid an unreasonable interference with its other statutory duties
When an agency believes that it needs additional time
to respond to a request because extenuating circumstances exist
in accordance with this proposed rule, the agency must reasonably
explain the extenuating circumstance in the agency's notice. If
a requester disputes the existence of extenuating circumstances,
the requester may file a complaint with the OIP, and the OIP will
investigate the agency's claim of extenuating circumstances. See
Haw. Rev. Stat. § 92F-42(8) (1993) (The OIP's powers and duties
include "receiv[ing] complaints from . . . the public regarding
the implementation of" the UIPA).
This proposed rule explains the procedure for providing access to
disclosable records incrementally. As requested by several agencies,
this proposed rule was designed as a comprehensive section to cover
all steps that need to be taken when an agency discloses records
incrementally. Thus, guidance regarding agency notices and time
limits for incremental disclosure are found in this proposed rule
instead of the proposed rules generally covering agency notice and
Both the requester and the agency may benefit from
incremental disclosure because: (1) the requester will be provided
access to the records as the agency is able to make them available,
and (2) this method allows the agency more time to process a request
for voluminous records when extenuating circumstances also exist.
The OIP deleted a proposed requirement that an agency
must provide notice before each increment and, furthermore, extended
the time period between the disclosure of each increment from ten
to twenty business days. This version of the proposed rule requires
only one agency notice to the requester that, among other things,
states the agency's fee arrangement for incremental disclosure.
The fee arrangement to be specified by the agency in accordance
with this proposed rule will determine the actual spacing of an
agency's disclosure of increments. The amount of information that
an agency discloses in each increment is determined by the extent
to which an agency is able to process the request during the interval
of twenty business days.
RULE § 5-41-17
EXPLANATION OF PROPOSED RULE § 5-41-17
Under this proposed rule, the requester must take
certain steps to support the processing of the record request. The
requester must pay any fees assessed under sections 5-41-16 and
5-41-20, make arrangements with the agency to inspect and copy the
record, provide written assurance of payment of remaining fees and
provide further clarification or description if instructed by the
As to payment of fees, a requester must tender prepayments
(which may include a portion of the estimated fee for a pending
records request and any outstanding fees from prior record requests)
when instructed by the agency's notice under proposed rule §
5-41-14. After tender of the prepayment amounts, the requester must
also pay any remaining fees before the agency makes the requested
record available for inspection or copying.
The requester's failure to fulfill the duties in the
proposed rule raises the presumption that the request is abandoned.
When the request is presumed abandoned and if the agency has already
processed the records request, then the requester is liable for
any remaining fees assessed by the agency, so long as the agency
has informed the requester as to when and where the record would
be available for inspection and copying in its notice. The agency
may choose to collect the remaining fees for an abandoned request
at the time the requester submits another records request or at
any other time.
When a request is presumed to be abandoned, an agency
need not take any further action to process the request. Thus, the
agency may stop preparing a record for inspection or copying, and
may undo any previous acts of preparation, for example, by returning
a record to its original location, or recycling copies of records
This proposed rule recognizes that agencies cannot
afford to devote staff time and resources toward processing record
requests that a requester is not serious about pursuing. A requester
demonstrates commitment to a request by diligently fulfilling the
duties set forth in this proposed rule. This proposed rule sets
forth a time limit of twenty business days for the requester to
fulfill the delineated duties so that the agency will know when
it can close a pending request. If a requester is deemed to have
abandoned a record request under this proposed rule, the requester
can always submit another request and, thereby, restart processing
of the request; however, the agency may require the requester to
tender a prepayment, which may include any outstanding fees from
this previous request, before the agency begins processing the subsequent
request in accordance with proposed rule § 5-41-20.
J. PROPOSED RULE §
(Segregation of records)
EXPLANATION OF PROPOSED RULE § 5-41-18
The OIP has previously opined that, under the UIPA,
agencies have the duty:
(1) To remove all "reasonably segregable"
confidential information from a government record, and
(2) To make the unprotected or "public"
information available for public inspection and copying.
See OIP Op. Ltr. No. 89-5 (Nov. 20, 1989); OIP Op.
Ltr. No. 90-31 (Oct. 25, 1990); OIP Op. Ltr. No. 91-1 (Feb. 15,
1991); OIP Op. Ltr. No. 95-13 (May 8, 1995).
The UIPA does not expressly direct agencies to segregate
confidential information from a record in order to disclose public
parts of the record. However, several provisions of the UIPA suggest
that agencies have this duty, which is consistent with the UIPA's
general principles of access to government records. See Haw. Rev.
Stat. § 92F-15(b) (1993) (court may examine the government
record at issue, in camera, to assist it in determining whether
it, or any part of it, may be withheld) (emphasis added); Haw. Rev.
Stat. § 92F-42(13) (1993) (directing the OIP to adopt rules
setting forth the fees that may be charged by an agency for "segregating
The issue of whether a certain record is reasonably
segregable must be addressed on a case-by-case basis. If this issue
is raised on appeal to the OIP, the OIP will refer to its opinions
and the case law for guidance in addressing this issue.
If public information in a record is not reasonably
segregable from the record's confidential information, then an agency
may keep the record confidential in its entirety. Whether the agency
denies access either to a record in part or in its entirety, the
agency must state the legal authority for withholding that part
of the record. This requirement is explained more fully in this
impact statement's explanation of proposed rule § 5-41-14 regarding
the information that an agency must provide in its notice to a requester
when denying access to a record, or a part thereof.
Subsection (b) of this proposed rule § 5-41-18
clarifies that an agency has a duty to properly segregate a record,
in a manner such that the segregation is reasonably apparent. By
properly segregating, the agency provides the requester with the
government record that was requested. Otherwise, the agency's failure
to provide the record requested may trigger a civil action by the
requester seeking injunctive relief and attorney's fees against
the agency under section 92F-15, Hawaii Revised Statutes.
Additionally, depending on the circumstances, the
improper segregation of information in the described manner could
subject agency employees to criminal liability for "tampering
with a government record." This offense is a misdemeanor under
section 710-1017, Hawaii Revised Statutes.
In a memorandum dated October 20, 1992, that was sent
to all agencies, the OIP suggested a method of properly segregating
confidential information from a paper record so that the removal
of information is apparent. Briefly, this method involved making
a copy of the record, and masking confidential information with
a black marker, or correction fluid or tape, on the copy. Then a
copy of the segregated version of the record can then be provided
to the requester. In order to properly segregate confidential information
on an electronic record, an agency may mark "XXXX" over
confidential information on a copy of the record.
K. PROPOSED RULE § 5-41-19
(Location of disclosure; alternatives)
EXPLANATION OF PROPOSED RULE § 5-41-19
As instructed by this proposed rule, an agency will
ordinarily make a record available for public inspection or copying
at the location where the agency maintains the record, or where
the agency has accommodations for inspection and copying. For example,
if a requested record is in storage at a site other than in an office
of the agency, the agency would transport the record to an office
where it can accommodate the request for inspection or copying.
ALTERNATIVE LOCATION FOR INSPECTION OF RECORDS
With regard to a requester's request for an alternative location
for inspection of a record, several agencies informed the OIP that
moving the only originals of records that they maintain to another
location puts the records at risk of loss or damage and, thus, jeopardizes
the integrity of their recordkeeping systems. The UIPA recognizes
that agencies must protect their records from loss or damage. See
Haw. Rev. Stat. § 92F-11(e) (1993) (authorizes an agency to
adopt rules to "protect its records from theft, loss, defacement,
alteration, or deterioration").
[Footnote: The OIP will be preparing model rules that agencies may
adopt under this provision.]
Consequently, this proposed rule provides that an
agency is not required to accommodate a request for an alternative
location for inspection of a record where the record is the agency's
only original record. Also, an agency is not required to accommodate
this request where the arrangement would unreasonably interfere
with the agency's functions. If a requester is unable to go to an
agency's location to inspect a record and the agency cannot accommodate
the request for an alternative location, the requester may ask for
a copy of the record as an alternative and must pay the related
However, the OIP expects agencies to recognize the
difficulties faced by requesters residing on islands other than
the one on which the requested records are located. Therefore, the
OIP encourages State agencies to consider and develop methods of
accommodating requests for record access from requesters on other
islands that would not jeopardize their records. By doing so, agencies
will demonstrate a reasonable effort to accommodate off-island requests.
Furthermore, an agency should consult with its deputy attorney general
or corporation counsel regarding the actions that the agency must
take to comply with the ADA or laws other than the UIPA.
DELIVERY OR TRANSMISSION OF RECORD COPY
Often, a requester may wish to have a copy of a record delivered
or transmitted in a certain manner. Under this rule, an agency should
make a reasonable effort to accommodate the request, but is not
required to do so if the arrangement would unreasonably interfere
with the agency's functions. Thus, an agency is not required to
make special arrangements for delivery by messenger or courier,
but the requester may make the arrangements to have a messenger
service pick up the copy from the agency's designated location.
In accordance with proposed rule § 5-41-20, an agency may require
the requester to tender a prepayment to cover the full amount of
any fees for mailing, facsimile or other transmission that the agency
is authorized by law, ordinance, or agency rule to charge.
L. PROPOSED RULE § 5-41-20
(Assessment of fees; prepayment)
EXPLANATION OF PROPOSED RULE § 5-41-20
This proposed rule acknowledges that an agency may
charge fees for services related to the processing of requests for
access to records where these fees are authorized by law, ordinance,
or agency rule. If an agency does charge fees for the search, review,
or segregation of a record in order to respond to a record request,
then the agency shall assess such fees in accordance with the rules
proposed in subchapter 3 of this chapter. Haw. Rev. Stat. §
92F-42(13) (1993). All other fees that may be charged for services
provided to process a record request are outside the scope of the
UIPA and the OIP's jurisdiction.
Duplication fees are separate and in addition to the fees for the
search, review, and segregation of records that are provided in
this chapter. The general statute governing duplication and reproduction
fees, section 92-21, Hawaii Revised Statutes, states that "[s]uch
reproduction cost shall include but shall not be limited to, labor
cost for search and actual time for reproducing, material cost,
. . . ." Haw. Rev. Stat. § 92-21 (Supp. 1995) (emphasis
added). Because section 92-21 allows the "labor cost for search"
of the record to be included in the duplication fee, no agency may
charge an additional "labor cost for search" under section
92-21, Hawaii Revised Statutes, if the agency assesses search fees
pursuant to subchapter 3 of this chapter.
PREPAYMENT OF FEES
Under this proposed rule, an agency may require a requester to tender
a prepayment that may include a portion of the estimated fees for
processing a pending request as well as all outstanding fees from
previous requests. The prepayment provision of proposed rule §
5-41-20 ensures that an agency will recoup some costs incurred in
processing record requests even when requesters may change their
minds about their requests after the agency has completed the steps
to make the record available. In comparison, the FOIA requires prepayment,
or advance payment, of fees only when the amount of fees is likely
to exceed $200.
5 U.S.C. § 552(a)(4)(A)(v) (1988).
WRITTEN ASSURANCE OF FEES PAYMENT
An agency may also require a requester to provide written assurance
of payment of fees when, after the agency begins processing a record
request, the agency determines that the actual fees may exceed the
estimated amount by more than $20. If the requester does not provide
the written assurance, the requester is presumed to have abandoned
the request and the agency need not process the request further.
An agency's request for written assurance of fees payment is intended
to inform the requester of the expected larger amount of fees to
be assessed, and is not intended to allow an agency to delay the
processing of the record request.
This proposed rule clarifies that a requester is liable for any
fees outstanding from previous requests. An agency may include all
outstanding fees as part of the prepayment required before processing
a subsequent request in accordance with subsection (b) of this proposed
rule. In this case, if the requester does not make the required
prepayment, the requester is presumed to have abandoned the subsequent
request under proposed rule § 5-41-17 and the agency is not
required to process the record request. However, in the case where
the requester is presumed to have abandoned a previous record request,
an agency may assess outstanding fees as part of a prepayment for
a subsequent request only if, in accordance with subsection (e)
of this proposed rule, the agency's notice informed the requester
as to when and where the record would be made available.
Fees will not be refunded when the agency has already
performed the services for which the fees were paid and the agency's
response complies with the UIPA. Thus, if a requester decides to
abandon or modify a request after having made a prepayment and the
agency has already performed the services to process the request,
the requester is not entitled to a refund and will be liable for
any remaining fees for services performed.
ITEMIZATION OF FEES
The proposed rule requires an agency to provide an itemized bill
of fees assessed when asked by the requester to do so. This requirement
enables the requester to find out how fees were assessed without
having to file an appeal.
M. PROPOSED RULE §
(Public access to disclosable government records provided
by a secondary source)
EXPLANATION OF PROPOSED RULE § 5-41-21
This proposed rule anticipates that an agency may
have arrangements with one or more other persons to serve as a secondary
source of information that the agency maintains. Such arrangements
may include agreements with commercial information service providers,
as well as distribution of information through a municipal store
or public information office of an agency.
This proposed rule sets forth the agencies' duties
in order to ensure that the agencies' arrangements with secondary
sources comply with the UIPA. An agency is not excused from its
duties under the UIPA by having an arrangement with a secondary
[Footnote: The UIPA recognizes that agencies must protect their
records from loss or damage. See Haw. Rev. Stat. § 92F-11(e)
(authorizes an agency to adopt rules to "protect its records
from theft, loss, defacement, alteration, or deterioration").
The OIP will be preparing model rules that agencies may adopt under
A requester cannot be referred to nor required to obtain the records
from a secondary source. Therefore, even if an agency has an arrangement
for a secondary source to provide public access to disclosable information
from its records, the agency itself must disclose the public information
when the agency receives the request for the information.
However, an agency may advise a requester that the
records are available through a secondary source, as well as any
services that the secondary source may offer, for example, more
expedient disclosure or enhanced data.
Furthermore, agencies cannot transfer to the secondary
source the authority to perform UIPA duties such as reviewing records
for confidential information and segregating the confidential information
before disclosure. In comparison, the OMB Guidelines allow federal
agencies to contract with information service providers for the
disclosure of records subject to restrictions similar to those provided
in this proposed rule. 52 Fed. Reg. 10012, 10018 (1987).
N. PROPOSED RULE § 5-41-31
EXPLANATION OF PROPOSED RULE § 5-41-31
FEE RATES ESTABLISHED BY THE OIP
This proposed rule states the general principle that an agency may
charge fees for the search, review, or segregation of a record when
any of these services is necessary to respond to a request for record
access. When the agency does charge fees for these services, it
shall charge the fees in accordance with this proposed rule.
As previously explained, the UIPA mandates that the
OIP "adopt rules that set forth the fees and other charges
that may be imposed for searching, reviewing, or segregating disclosable
records." Haw. Rev. Stat. § 92F-42(12), (13) (1993). Accordingly,
subsection (a) of this proposed rule sets forth specific fee rates
for the search, review, and segregation of records.
The OIP intended that each fee rate set forth in subsection
(a) be close to the averaged salary rate of agency employees who
are likely to perform the particular service. Specifically, since
clerical staff employees are likely to perform the searches for
records, the proposed fee rate for a record search hypothetically
represents an averaged salary rate of all clerical agency employees.
Because supervisory and professional staff employees are likely
to perform the review and segregation of a record, the proposed
fee rate for these activities is an averaged salary rate of supervisory
or professional agency employees. When an agency segregates information
by redacting information on a copy of the record, the cost of making
the copy is not to be included in the segregation fee.
In February 1996, the OIP conducted a survey of departments
of the State and the City and County of Honolulu regarding the salary
rates of the employees that would be responsible for searching,
reviewing, and segregating records requested for access under the
[Footnote: The OIP circulated its draft rules to the other counties
for review and comment. However, the OIP did not include the neighbor
island counties in its survey of salaries because the OIP believed
that the salaries reported by the City and County of Honolulu would
be comparable and representative of the other counties' salaries.]
Twelve State departments and nineteen City departments responded
to the OIP's survey. In reviewing the survey responses, the OIP
concluded that its proposed fee rates are a close approximation
of the averaged salary of State and county employees who would perform
the search and review of records. The OIP's proposed fee rates were
generally lower than the actual salaries reported in the survey.
The survey responses from the agencies are available for review
at the OIP.
The fee schedule set forth in subsection (a) of this
proposed rule states that the fee rates do not apply to those record
requests that require fifteen minutes or less of search or review
and segregation time. As for these record requests, the OIP believes
that the small amount of revenue collected from these fees would
be exceeded by the costs of processing the collection of these fees.
In comparison, the FOIA instructs federal agencies that no fees
may be charged by an agency when "the costs of routine collection
and processing of the fees are likely to equal or exceed the amount
of the fee." 5 U.S.C. § 552(a)(4)(A)(iv)(I) (1988). The
FOIA also requires that the first two hours of search time be provided
without charge, except where the records are requested for commercial
use. 5 U.S.C. § 552(a)(4)(A)(iv)(II) (1988).
As previously discussed in the explanation of proposed
rule § 5-41-1, the purpose of establishing fees is to allow
agencies to recoup some costs in responding to requests for access
to government records, rather than having to provide the services
entirely at taxpayers' expense. Because the proposed fee rates set
forth in subsection (a) of this proposed rule correspond to relatively
low estimates of the actual average salaries of employees processing
a record request, agencies will not likely recover all costs involved
in responding to the record request. Furthermore, the OIP notes
that many government records are not stored or formatted to facilitate
the search, review and segregation of information in response to
a request. Hence, by allowing the recovery of most, but not all
costs in processing a record request, the draft rules provide a
reasonable compromise so that requesters are not shouldering the
full cost resulting from a record's location and format that are
often not designed for ease in search, review, and segregation.
The OIP intended the fee rates in this subsection
to serve as a unitary fee schedule that would be easy for the agencies
to understand and the public to comply with. This purpose is consistent
with the legislative intent behind the UIPA to create uniform procedures
throughout the State for providing access to disclosable records.
AGENCIES' ADOPTION OF ALTERNATIVE FEE RATES
Several agencies have informed the OIP that they are bound by operational
requirements to recoup the actual costs of searching, reviewing,
and segregating records. Other agencies are already governed by
statutes, ordinances or rules setting forth search, review, and
segregation fees, such as flat fees. In order to address the different
needs and circumstances of State and county agencies, subsection
(b) of proposed rule § 5-41-31 provides agencies with the option
of complying with already established fees, or establishing their
own fees for the search, review, and segregation of records so long
as the fees do not exceed the actual costs incurred in performing
these services. If agencies propose their own fees pursuant to subsection
(b), this draft rule provides that the agency's fees are to be established
by statute, ordinance, or rule. In this way, the public has an opportunity
to review an agency's fees proposed in legislation or rulemaking
and assess whether the proposed fees exceed the agency's actual
costs of providing these services.
FEES NOT APPLICABLE TO SUBPOENAS FOR DISCOVERY OF
RECORDS OR INDIVIDUALS REQUESTING ACCESS TO PERSONAL RECORDS
The fees set forth in this proposed rule do not apply to records
provided in response to subpoenas. OIP Opinion Letter No. 95-16
(July 18, 1995) concluded that the UIPA and the rules of pretrial
discovery are two separate and distinct mechanisms for the disclosure
or discovery of records. For example, record review under the UIPA
and in response to a subpoena differ because, in the first instance,
an agency assesses whether a UIPA exception to disclosure would
apply and, in the second instance, the agency assesses whether a
privilege may be asserted as a defense to discovery of the subpoenaed
The proposed fees for the search, review, or segregation
of a record apply only to requests for public access to government
records under Part II of the UIPA. Therefore, individuals may not
be charged these fees when requesting access to personal records
about themselves under Part III of the UIPA, entitled "Disclosure
of Personal Records." One of the UIPA's underlying purposes
is to "[m]ake government accountable to individuals in the
collection, use, and dissemination of information relating to them."
Haw. Rev. Stat. § 92F-2 (1993). This proposed rule's fee exclusion
for individuals requesting access to personal records furthers this
UIPA purpose. Similarly, the federal Privacy Act, 5 U.S.C. §
552(a)(f), provides an exemption from search and review fees for
individuals requesting access to their own personal records.
Furthermore, because the proposed rules do not include
poverty as a basis for an exemption from the fees, the fee exclusion
for individuals requesting access to their own personal records
permits those impoverished individuals to have access to their own
personal records without the burden of paying fees for the search,
review, or segregation of the personal records requested.
The OIP recognizes that certain agencies may have
operational requirements that necessitate the assessment of fees
to individuals requesting access to personal records. Therefore,
an agency may charge an individual these fees when provided by statute,
ordinance, or rule. However, the OIP cautions that individuals claiming
poverty may attempt to contest the assessment of these fees by arguing
the deprivation of personal rights, and the OIP suggests that a
provision for a fee waiver for personal record requests be considered.
EXEMPTIONS FROM FEES FOR SEARCH, REVIEW, AND SEGREGATION
An agency also may not charge the fees set forth in this proposed
rule when no search, review, or segregation has been done in order
to process a record request, or when the agency finds that the requester
qualifies for a fee waiver in the public interest in accordance
with proposed rule § 5-41-32. Under subsection (d) of this
proposed rule, the agency may also agree to give an exemption to
a state, county, or federal government agency. The agency has discretion
as to when it may grant this exemption to another agency.
O. PROPOSED RULE § 5-41-32
(Fee waiver in the public interest)
EXPLANATION OF PROPOSED RULE § 5-41-32
This proposed rule sets forth the criteria for a waiver
of fees in the public interest. As previously explained, the UIPA
requires that the OIP's rules "provide for a waiver of such
fees when the public interest would be served." Haw. Rev. Stat.
§ 92F-42(13) (1993). The provisions for a fee waiver in the
public interest do not apply to duplication fees because such fees
are not within the scope of the UIPA and these rules.
Subsection (a) of this proposed rule requires that
a requester must both request the waiver and provide a statement
of facts supporting the waiver in a formal request to the agency
under proposed rule § 5-41-12. The agency has the burden of
determining whether the requester qualifies for the waiver in accordance
with subsection (b) of this proposed rule.
Subsection (b) of this proposed rule sets forth the
substantive criteria that an agency must refer to when assessing
whether a fee waiver would serve the public interest.
The Legislature did not provide guidance regarding
the UIPA's requirement that a waiver of fees be provided when the
public interest would be served. To establish what is the public
interest that should be served, the OIP looked at the stated purposes
of the UIPA, and at the FOIA that also provides a fee waiver in
the public interest. The UIPA states:
In a democracy, the people are vested with the ultimate
decision-making power. Government agencies exist to aid the people
in the formation and conduct of public policy. Opening up the government
processes to public scrutiny and participation is the only viable
and reasonable method of protecting the public's interest. 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.
Haw. Rev. Stat. § 92F-2 (1993). Further, the
UIPA's purposes are also to "p]romote the public interest in
disclosure" and "[e]nhance government accountability through
a general policy of access to government." Id.
Given the stated purposes, the OIP concludes that
the public interest served by the UIPA is, generally, the meaningful
public participation in government processes in which public policy
is formulated and established. Specifically, the UIPA encourages
the free flow of information held in government records so as to
further the public's understanding of the policies and actions of
A free flow of information requires that the information
be transmitted or distributed to members of the public. In understanding
how information is transmitted and distributed in today's modern
society, it is clear that either government proactively disseminates
information, or that members of the public search for and locate
information. Commonly, modern democratic societies depend upon the
news media for the transmission and distribution of information
held by the government. Therefore, the OIP concludes that one method
of serving the public interest is by encouraging the free flow of
information through the news media channels which broadly transmit
or disseminate information to the public.
To determine how a fee waiver would best serve this
public interest, the OIP looked to the FOIA for guidance. The FOIA
provides a fee waiver if:
[D]isclosure of the information is in the public interest
because it is likely to contribute significantly to public understanding
of the operations or activities of the government and is not primarily
in the commercial interest of the requester.
5 U.S.C. § 552(a)(4)(A)(iii) (1988) (emphasis
added). The Department of Justice's FOIA Fee Waiver Policy Guidance
("Policy Guidance") was issued to all federal agencies
in 1987 and incorporated into the Department of Justice's own regulations
at 28 C.F.R. § 16.10 (1988). The Policy Guidance provides criteria
for determining when disclosure of federal records is in the public
The OIP determined that, in contrast to the Policy
Guidance, news media representatives will almost always have commercial
interests. Therefore, to exclude news media representatives from
a fee waiver because of those commercial interests is counterproductive
to supporting the public interest in a free flow of information
held by the government. Consequently, the proposed rule does not
require an agency to determine that the disclosure of information
is not primarily in the commercial interest of the requester.
However, the OIP recognizes the competing interests
of taxpayers fully funding the commercial interests of the news
media versus constricting the free flow of information by imposing
the aggregate costs of obtaining the information. Thus, to balance
these competing interests, this proposed rule limits the fee waiver
to $30. This compromise allows more requesters to qualify for the
waiver, but limits the total economic impact upon the taxpayer and
the agencies of providing the required fee waiver.
P. PROPOSED RULE §
(Fees charged for records determined to be confidential)
EXPLANATION OF PROPOSED RULE § 5-41-33
Under this proposed rule, an agency may charge for
the search and review of a record even when the record is ultimately
determined to be exempt from disclosure under the UIPA or other
law. The OMB Guidelines similarly advise that federal agencies may
charge fees in these situations. 52 Fed. Reg. 10012, 10019 (1987).
Since the purpose of the proposed rules is to allow
agencies to recoup some costs in responding to record requests under
the UIPA, the OIP believes that it is fair to allow agencies to
recoup costs even when the agencies' efforts to respond to requests
do not result in the disclosure of the requested records. The OIP
believes that imposing the search, review, and segregation fees
upon a request that ultimately does not result in the disclosure
of the requested record supports the policy of making records publicly
accessible. To prohibit an agency from collecting such a fee would
impose greater burdens upon the taxpayer.
If the requester fails to pay the fees for the search
or review of a record under this section after the agency has performed
these services but determined that no responsive records are disclosable,
the agency may assess the outstanding fees as part of the required
prepayment for a subsequent record request in accordance with proposed
rule § 5-41-20.
III. EFFECT ON AGENCY OPERATIONS
All State and county agencies, as defined by section
92F-3, Hawaii Revised Statutes, shall be governed by these proposed
rules. These proposed rules set forth the procedures that agencies
must follow when responding to requests for access to government
records under the UIPA. Thus, these proposed rules will guide, streamline,
and make uniform agencies' efforts to comply with the UIPA's requirements
regarding access to government records.
These proposed rules also set forth the fees that
agencies may charge for the search, review, and segregation of records
and related provisions. These rules will allow the State and counties
to recoup some of the costs in responding to requests for access
to government records.
IV. FINAL RESULT EXPECTED
As explained in the above section, these proposed
rules will guide, streamline, and make uniform agencies' efforts
to comply with the UIPA's requirements regarding access to government
records, and will allow the State and counties to recoup some of
the costs in responding to requests for access to government records.
In turn, the UIPA's effectiveness will be enhanced, and public confidence
in government will be bolstered.
V. FINANCIAL IMPACT
ON THE STATE
The proposed rules set forth the fees that an agency
may charge for the search, review, and segregation of records and
related provisions. These fees have not been traditionally charged
by all agencies. Collection of these fees should help minimize the
financial hardship on government operations when agency personnel
and facilities are used to process record requests under the UIPA.
As mandated by the UIPA, these proposed rules provide
for a waiver of the fees for searching, reviewing, and segregating
records when the public interest will be served. The proposed rules
set forth the criteria as to when a waiver would be in the public
interest under the UIPA, and also establishes a limit of $30 for
the amount of fees that can be waived when a request qualifies for
this fee waiver.
VI. IMPACT ON THE PUBLIC AND
ECONOMIC GROWTH OF THE STATE
These proposed rules set forth the procedures that
members of the public must follow when requesting access to records
under the UIPA. Members of the public will also be charged fees
for the search, review, and segregation of records when their record
requests require more than fifteen minutes of any of these agency
services. The proposed rules set forth certain exemptions from these
fees, including an exemption for individuals requesting access to
personal records and another exemption for when a waiver of the
fees would serve the public interest. There will be little, if any,
impact on the economic growth of the State by the adoption of these
VII. OTHER ALTERNATIVES
The UIPA, in section 92F-42(12) and (13), Hawaii Revised
Statutes, requires that the OIP adopt these rules. There are no
alternatives to compliance with this statutory requirement