State may cut public’s
right to records

The new rules, secret at present, impose
fees and add response time

By Ian Lind
Star-Bulletin

The state is preparing new rules that will dramatically change the public's access to government information, but the specific proposals are secret, at least for now.

The proposed rules create requirements for information requests, impose new fees, and set generous time limits before government agencies must respond to requests from the public.

Open government advocates are worried that it will end up being more costly and time-consuming to pry public information out of state and county agencies than from the federal government, something they say is unnecessary and unacceptable.

Moya Gray, director of the Office of Information Practices, said the rules will not be disclosed publicly until the ongoing internal review is completed and public hearings are scheduled.

"I'm really crossing my fingers that we'll have hearings before the end of the year," Gray said, but the process could easily extend into 1998.

Adoption of rules is one of the final steps in implementing the 1988 Uniform Information Practices Act, which gives the public a broad right to inspect or copy state or county records.

Under this law, information maintained by government agencies is exempt from disclosure only if it would be an unnecessary invasion of personal privacy, or if it falls within a limited number of specific exemptions.

The rules are significant because they spell out procedures that agencies will use to interpret and implement the law.

"Rules can be devastating," said Desmond Byrne, state chairman of Common Cause and a steering committee member of the Open Government Coalition of Hawaii. "Unless they are dealt with properly, rules can negate the whole intent of the law."

Certain aspects of the proposed rules "are not access friendly," said Honolulu attorney Jeff Portnoy, who represents news media clients in cases involving access issues.

"In general, I favor rules, but these particular rules, in my opinion, create far too many impediments to the expeditious disclosure of documents."

Concerns focus on provisions for new fees and time limits contained in the initial draft of the rules, which Gray says mostly remain in updated versions:

Agencies would be authorized to charge new fees of $10 an hour to locate requested records, and $20 an hour to review the records and, if necessary, remove confidential information. These fees would have to be paid even if the agency later decided that no records could be disclosed.

The first 15 minutes of search time would be free, compared to two hours of free searching provided under the federal Freedom of Information Act.

Waivers of fees up to $50 ($75 for requests from news media) would be given if considered to be in the public interest; waivers under federal law have no dollar limit.

Agencies would be allowed to take 20 business days before providing requested information; it could stretch that to 50 business days -- 10 weeks -- if the agency claimed it needed more time.

Portnoy said agencies can't always drop everything to respond immediately to an information request. "But to allow up to 50 days to reply, in a state this size, that's crazy," he said.

"The federal government has hundreds of thousands as many documents as Hawaii, with requests covering thousands of agencies across the country and the world. It makes no sense that our rules would impose greater fees and allow longer for agencies to respond."

Byrne warned that the new fees for locating records would be an invitation for agencies to evade disclosure by using sloppy or outdated filing systems, then using the resulting charges to discourage requests from the public.

"I don't want to pay for their (agency) inefficiency," he said.

The new fees also will add a whole new layer of paperwork for agencies, which will have to keep track of time spent, fees and payments.

The federal government, by comparison, does not charge for routine information requests where the cost of bookkeeping and collection exceeds the fee.

Gray said provisions for public interest waivers have been broadened in the most recent version of the rules, but did not provide details. She acknowledged the concern that it may be difficult to make any major changes in the rules by the time public hearings are held. Gray said this was why she solicited comments from public interest groups and concerned individuals early in the process.

"There was a great deal of publicity given to these draft rules, and yet people still did not feel compelled to participate in the process," Gray said. "That's symptomatic of our society."

---

Proposed changes

Here are some new rules proposed to cover requests for government information:

Fees: Agencies could charge $10 an hour to locate requested records, and $20 an hour to review them and, if needed, remove confidential information.

Searches: The first 15 minutes of search time would be free, compared to two hours of free searching under federal law.

Time: Agencies could take up to 50 business days before providing information.