Monday, June 15, 1998

requests meet with

In apparent violation
of state law, Transportation
staffers want reasons

By Ian Y. Lind


Small indignities.

That's what people suffer when requesting copies of state highway plans or maps from the Department of Transportation.

Agency staff immediately ask why the copies are being requested and what they will be used for, according to a person who later complained to the Star-Bulletin.

An inquiry by this newspaper met with the same question, an apparent violation of the state's public-records law.

Requests are then processed through administrative and legal reviews which delay and frustrate requesters and increase costs to taxpayers.

It's a problem that directly affects people each day who need these highway records, such as homeowners and contractors preparing to build or landscape onir,10p6,6p9 roadside lots, community groups concerned about traffic flow or highway safety, and people investigating automobile accidents.

But the bureaucratic mind-set is what many hold responsible for the high cost and closed nature of state government.

The problem: Ask the Transportation Department for a copy of the plan for a stretch of highway, and you'll be required to apply in writing with a statement explaining what you intend to do with the plans.

If there was an accident that could lead to a lawsuit, you will also be asked to provide the names of anyone injured and a specific description of their injuries, along with related information.

After a clerk does a preliminary check of the request, you'll have to wait a few days while the answers are reviewed by highway staff and maybe a deputy attorney general before learning if you'll be able to purchase the copies.

Transportation officials agree the plans are public records. They say requests for copies are rarely turned down.

The department's procedures, however, appear contrary to state law. Prior legal opinions by the Office of Information Practices have determined that the reason a person wants a government record is not relevant to whether it must be disclosed.

"It is a generally accepted principle that you shouldn't have to say why you want a record," said Jennifer Chock, Office of Information Practices staff attorney.

Allan Nishimura, the transportation employee assigned to review the requests for copies, said he was unaware the questions might not be proper.

"We've been using this procedure for a long time," Nishimura said. "I just inherited it."

Transportation spokeswoman Marilyn Kali also said she was unaware of the procedures.

After conferring with Nishimura, she confirmed that people who aren't involved in litigation are asked their reasons for wanting copies.

"Some state consultant contracts say we provide certain plans free of charge, so if they come in as part of their contract, we need to know not to charge. So that's the reason we would ask," Kali said.

Both she and Nishimura said requests involving possible lawsuits require review by state lawyers. "It's not so much whether we're going to give the information out, but to let the AG be aware of who is asking," Kali said.

Deputy Attorney General George Hom agreed that it's just a matter of information.

"We just want to know who is going to be filing lawsuits. It's never a question of turning down a request," he said.

"But if there's litigation, they don't get the copies," Hom added. "If the state's a party (in a lawsuit), we would tell them no."

Hom said anyone involved in a lawsuit should go through the discovery process in court to get the records.

Government records that are protected from court discovery are also exempt from mandatory disclosure under the public-record law. Hom acknowledged that highway plans are not protected but are withheld anyway if litigation exists.

"If the state's a party to a suit, we'll object to disclosure. If somebody doesn't like it, have them take us to court. We'll let the judge decide," Hom said.

He denied the legal review causes unnecessary delays.

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