Openline
September 1998

Proposed Rules Amended, New Hearing Set
Attorney of the Day Service

Proposed Rules Amended, New Hearing Set

On August 31, 1998, the Office of Information Practices ("OIP") held a public hearing on the proposed rules entitled "Administrative Rules on Agency Procedures and Fees for Processing Government Record Requests."

These rules, among other requirements, would have imposed time limits on agencies to disclose public records and allowed agencies to charge fees for searching for, reviewing, and removing non-disclosable information from government records. After carefully reviewing the testimony received at public hearing, the OIP declined to adopt the rules as written.

Hearing Set for November 5
The OIP did, however, propose amendments to those rules. The OIP will hold another public hearing on the proposed amendments on November 5, 1998, between 9:00 a.m. and noon at the following State video conference centers:

OAHU:
Capitol Center
1177 Alakea Street, Room 302
Honolulu, Hawaii

KAUAI:
State Office Building
3060 Eiwa Street, Basement
Lihue, Hawaii

MAUI:
Judiciary Building
2145 Main Street, First Floor
Wailuku, Hawaii

HAWAII:
State Office Building
75 Aupuni Street, Basement
Hilo, Hawaii

For the official notice of the hearing on the rules, see the Honolulu Star-Bulletin's legal notice section (page D-5) on October 6, 1998, or the OIP's web site at www.state.hi.us/oip.

Reporting to the OIP
Some testifiers at the August 31st hearing feared the fee provisions in the proposed rules would be barriers to access to public records. Many testifiers asked that no fees be imposed at all. Given the legislative mandate to adopt fee rules, however, the OIP was unable to eliminate the fees provision from the rules.

The OIP recognizes that the fees provision can be an incentive to eliminate or reduce access to public records. Therefore, the OIP will review and assess what impact the proposed fees will have on access. This newly proposed rule would require agencies to report to the OIP the fees charged by the agencies under these rules. Agencies are already required to report annually the number of written record requests they received to the OIP, as required by the UIPA, section 92F-18(b), Hawaii Revised Statutes.

Time Limits and Other Agency Requirements
Various members of the public criticized the proposed time limits for agencies to respond to public requests. One testifier asserted that the rules would allow agencies to take an indefinite period of time to respond to a requester. Others asserted that these time limits would result in unreasonably long delays because agencies would always take the maximum time allowed in order to respond.

A journalist, who believed there was no problem with agencies responding to requests in a timely manner, recommended no time limits should be adopted. In addition, testifiers did not want agencies to assess fees for records that were public in their entirety.

The OIP hears from members of the public quite regularly. These people are not reporters, are not members of public interest groups, and generally are not familiar with the process of government decision making or the method of government record making and keeping. These individuals have no ready forum for their voice to be heard.

Clearly, when these individuals ask for government records, some experience delays well beyond a 10-day period. For these requesters this problem cannot be addressed without clear rules. It is for the benefit of all individuals that the OIP impose time limits upon agencies. Thus, the OIP kept time limits in the rules, despite the testimony from members of the media and public interest groups against it.

Categories of Public Records and Reduced Time Limits
The OIP recognizes that timely access is important to all people. In response to testimony, the OIP created a single rule, which sets forth three categories of records and time limits for notice and disclosure of those types of records.

Records Public in Their Entirety: Segregation is the most time-consuming aspect of disclosure. If a record is public in its entirety, an agency will not segregate any information from the record. Thus, it is reasonable to require agencies to disclose such records within 10 business days. The rule was amended to require an agency to disclose any records listed under section 92F-12, HRS or any other records that are public in their entirety within a reasonable time not to exceed 10 business days after receiving the request. No time extensions are allowed.

Records That Must Be Segregated or Will Not Be Disclosed: When segregation is required, the OIP believes that an agency should perform any review and segregation work promptly. However, an agency should have adequate time to search for, review and segregate a record. A 10-business day period achieves the balance between the public's need for timely access to the record and the agencies' need for adequate time to review the record.

Thus, when an agency segregates portions of the record, it must give notice within 10 business days of the request and then promptly disclose the public portions of the record within five business days after giving the notice. Notice is the initial response an agency must give to a formal requester, and is explained in detail in §2-71-14.

Should an agency require a prepayment, the five-business day period for disclosure begins after the prepayment is received by the agency. An agency may choose to disclose voluminous records incrementally where the agency meets the criteria for incremental disclosure set forth in §2-71-15.

Extenuating Circumstances: In the third category of records, the OIP again balanced the need for timely access and the agencies' need to deal with extenuating circumstances. The OIP felt it important to provide adequate time for dealing with circumstances believed to be extenuating but to then require prompt disclosure.

To assist the requester, the agency may provide an acknowledgment letter within 10 business days after receiving the request. (The acknowledgment is intended to reassure the requester that when extenuating circumstances exist, the request has not been abandoned.)

However, the agency must give notice within a reasonable period of time, not to exceed 20 business days after receiving the request. The agency must now disclose the record five business days after notice, while the old rule allowed 30 days after notice to disclose. If extenuating circumstances exist and the requested records are voluminous, the agency may still choose to disclose the records incrementally in accordance with §2-71-15.

Directing a Request to Another Unit of the Agency
This rule was amended to require an agency to forward a request to the head of the department for proper response when that unit receives a request for a record maintained by another unit of the agency. This eliminates guesswork on the part of the receiving unit as to where the request should be directed.

Specific Authority for Denial of Access
This subsection (b) was also revised to clarify that an agency must cite the "specific" authorities under which access to request is denied. Specifically, an agency should cite the actual exception under the UIPA or other law that the agency is relying upon in denying access to a record.

Fees
Assessment of fees remains discretionary. Under the prior and current version of the rules, agencies need not assess fees. However, testifiers have argued against these fees because government information is collected with tax dollars, and therefore no fees should be assessed to disclose that information. Given the statutory mandate to impose fees, the OIP is required to adopt rules for fees.

Despite the fact that the fees provisions remain, the rules were never meant to be a barrier to access, nor an incentive to bring in revenue. In considering the testimony, the OIP adjusted the entire regulatory scheme so as to reduce, as much as possible, the impact upon the requester.

Doubled Free Time for All Requesters for Up to $30 of Fees: Since the adoption of Act 311, 1998 Hawaii Session Laws, the OIP has received numerous complaints about this 100 percent increase in copying fees. Unfortunately, the OIP does not have jurisdiction over copying fees. Nonetheless, the OIP believes that this substantial increase, in addition to the fees to be imposed by the rules, raises significant barriers to public access.

Therefore, the OIP doubled the "free time" to be given to all persons for time spent in search, review, and segregation services. The OIP believes this increase of "free time" furthers the public interest by lowering the actual cost to the individual. The OIP doubled the amount of free time that any person would be entitled to from $15 to $30. Since 60 percent of government records are public, the OIP believes this increased free time will benefit most requesters.

In addition to serving the public’s interest, this change allows agencies to forego processing small amounts of fees that would be collected from the majority of requests that they must process. Many requests are typically not complicated and do not entail processing voluminous amounts of records. But for those requests that entail longer amounts of time, the search, review and segregation fees may still be assessed.

No Review and Segregation Fees for Entirely Public Records: The OIP wishes to clarify and emphasize that, under this proposed rule, no fees for the review and segregation of records can be charged where access is requested to records that are public in their entirety, including records listed in section 92F-12, Hawaii Revised Statutes.

Waiver of Fees If in the Public Interest: Several persons testified that the OIP should remove the $30 maximum on the amount of fees that can be waived, so that when a person qualifies for the waiver, all fees would be free.

The OIP designed the application of this waiver to be broad as possible--to encompass requesters such as nonprofit organizations, public interest media groups, community newsletters, etc., so long as the requester can show "the primary intention and the actual ability to widely disseminate information from the government to the general public at large." Thus, the scope of persons who would qualify for the waiver would go considerably beyond reporters for the established newspapers.

Because the waiver is broad, there will be multiple claims upon government resources by those qualifying for public interest waivers. In these fiscally difficult times, it is clear that taxpayers are not willing to place additional claims upon their tax burden.

Therefore, rather than eliminating the waiver cap, the OIP increased it from $30 to $60 so that persons who qualify for the waiver will receive a significantly greater amount of "free" service (approximately 2 hours) from an agency that searches for, reviews, and segregates records.

OIP Transferred to Lieutenant Governor’s Office
The OIP changed the title and chapter numbers to conform with Title 2 of the Hawaii Administrative Rules, the title assigned to the Office of the Lieutenant Governor.

Definitions and Terms
The OIP clarified that the term "formal request" encompasses a records request in any physical form, including electronic format. The OIP also changed the term "determined to be confidential" to "will not be disclosed" (in §2-71-33).

Rights and Remedies of Requester
Testifiers were concerned that those who used the informal request process would not have the same rights under the UIPA to appeal an agency’s denial of access to a record to the OIP or to court as those using the formal request process. As this would not be true, the OIP deleted a statement in §2-71-12 to eliminate this implication.

Form of Formal Request
The OIP clarified that the term "formal request" encompasses a records request in any physical form, including electronic format.

Calendar Days to Business Days
The OIP amended the rule to give requesters 20 "business" days rather than calendar days before a requester is presumed to have abandoned a request.

Any Other Lawful Fees
The OIP simplified this subsection so that it recognizes that an agency may charge other "lawful fees" in addition to the fees that may be assessed by this chapter.

No Written Assurance of Fees Required
As the time limit for disclosure of a record was shortened to five days after the agency has given notice, an agency should have a fairly accurate estimate of the fees that may be assessed and should not need further assurances. Thus, the ability to require a written assurance of payment was eliminated.

Attorney of the Day Service

The Office of Information Practices continues to offer its Attorney of the Day service to members of the public, to State and county government agencies, and to others who need legal assistance regarding the Uniform Information Practices Act (Modified).

However, because of recent staff cuts, morning calls to the Attorney of the Day will not be returned until the afternoon. If you need assistance, just phone the OIP at 586-1400. Thank you for your understanding.