THE FACTS ABOUT RECORD REQUEST FEES AND THE PUBLIC INTEREST WAIVERPosted on Apr 24, 2023 in Featured, What's New
Civil Beat has published a number of subjective opinion pieces about the record request fee caps and public interest waivers in HB 719 relating to Public Records. OIP offers here some objective facts to balance the discussion and impartially aid in public understanding of the bill in its broader context.
FACT #1: The objective data collected since 2016 from the UIPA Request Log shows that agencies in Hawaii are quickly providing records to most requesters within 8 business days and at no charge. Unlike the months, if not years, that federal agencies take to respond to Freedom of Information Act (FOIA) record requests, State and county agencies respond within 8 business days, on average, to the typical request made under Hawaii’s Uniform Information Practices Act (UIPA), Chapter 92F, HRS. Requesters paid nothing for their requests to State agencies 88% of the time and to county agencies 76% of the time.
FACT #2: Requesters can clarify their initial record request to bring down the estimated fees and costs initially quoted by an agency. Sometimes, a request as initially submitted applies to a very large amount of records that may take the agency an unusually high amount of time to process, in which case an equally high fee estimate based on that required time may initially be quoted. Usually, once the requester clarifies the request, the agency can adjust its fee estimate accordingly and the initial large estimate is never actually charged. If, however, the requester still believes that the agency’s fee quote is excessive, they can seek OIP’s assistance. For example, in OIP Op. Ltr. No. F23-02, the agency initially quoted a reporter an estimated fee of over $1,000,000 to redact and provide records, which with OIP’s early assistance was reduced to $290 and could ultimately be zero, depending on the records that the reporter requests.
FACT #3: Media requesters are not paying excessive amounts for record requests. Besides the example above, objective data from the UIPA Record Request Log shows that media requesters are not actually paying excessive amounts for record request fees. The Table 10 Supplement at the end of each annual OIP Log summary report shows payments of $50 or more in fees and costs and asks agencies identify the requesters, if possible. The requesters that paid $50 or more were mostly identified as law firms, commercial companies, and special interest groups. For fiscal years 2016 through 2022, the highest amounts charged by the State were $7,469.75 (all costs, not fees) to each of two commercial companies seeking highway data records. During this same time, State agencies charged between $70 to $555 to six media requesters. As for the counties, in fiscal year 2022, the Honolulu Police Department charged $1,005 to Nick Grube of Civil Beat for his record request that was processed over time because it required a large amount of agency time to review and redact confidential information so the remainder of the records could be publicly disclosed. For an organization like Civil Beat with total expenses of $3,815,258 and net assets (after liabilities) of $2,651,159 in 2020, $1,005 seems to be a relatively insignificant business expense.
FACT #4: True costs of record requests to taxpayers is much higher than what agencies are allowed to recover. OIP’s current rules were adopted in 1999 and allow agencies to charge $2.50 per 15 minutes to search for responsive records, records, and $5 per 15 minutes to review and segregate (redact) records. Additionally, OIP rules do not allow agencies to recover the costs for their government attorneys to provide advice, such as how to respond or redact records, or to defend them when a complaint is filed with OIP challenging the agencies’ redactions. OIP’s existing rules also require the first $30 of fees to be waived. Alternatively, OIP’s rules already allow agencies to determine if a public interest waiver is justified, for which there is a $60 fee waiver.
Over the past 24 years, inflation has increased average government salaries (excluding benefits) substantially above the levels on which OIP’s rules were based, especially for the managers and professionals who often must review and segregate the records. Because of that inflation, even when an agency can charge for most of its time spent processing a request, the amount charged does not come close to recouping the agency’s cost for its employees’ time. The statutory fee caps of $5 per 15 minutes for search and $7.50 per 15 minutes for review and segregation set by HB 719, HD 1, SD 2, will mean that the fee rules cannot be amended to fully account for inflation and will result in fees that are much lower than the actual cost of a government employee’s time, which Hawaii’s taxpayers must fund.
FACT #5: With a full fee waiver and no ability to charge reasonable fees and costs for a record request, an agency would not be able to negotiate lower fees to curtail unreasonably excessive, vexatious, or repeated requests that would hurt the public by interrupting the agency’s normal operations, increasing agency personnel and overtime costs, and delay the time for the agency to respond to typical and personal record requests.
First, it is important to note that FOIA does not require federal agencies to provide a full waiver of fees for a public interest request.
Second, requiring a full fee waiver for all public interest requests will mean agencies must provide such records at no charge to all qualifying requests, not just those from the media, no matter how numerous and complex the requests are, or whether they are politically motivated, or whether they are even from state residents. If this predictably leads to agency staff being increasingly tied up with complex record requests for which they cannot charge, Hawaii’s taxpayers will ultimately be the ones to pay for additional government personnel and overtime costs, and residents may also find themselves waiting longer for their own record requests, as is the case with the federal agencies under FOIA rules.
FACT #6: The initial versions of HB 719 this legislative session would have provided a public interest fee waiver only for non-profit organizations or bloggers such as Civil Beat, and would not have benefitted for-profit, commercial media companies.
As OIP repeatedly pointed out in its testimony on HB 719 and its HD 1, the bill would have required OIP’s existing rules to be changed by adding a requirement that a public interest request NOT be “primarily in the commercial interest,” which is a requirement that OIP had specifically rejected in adopting its current rule so as to not exclude news media representatives. As originally written, HB 719 would not have benefitted commercially operated media companies like the Honolulu Star-Advertiser, but would have benefitted non-profit organizations like Civil Beat or Civil Beat Law Center.
FACT #7: Open records laws are increasingly being misused as a weapon for political or personal vendettas, not for the public interest. Anyone, not just media companies or residents, can make a record request under Hawaii’s UIPA, and most people requesting government records do so with good intentions and not to harass agencies. But the UIPA and other open record laws are sometimes abused and even weaponized by people more interested in interfering with an agency’s work than in obtaining information, which has been happening with increasing frequency on the mainland. The Washington Post reported in March that requesters have recently inundated state and local government agencies for information related to politically divisive issues, such as the types of books and education being provided to children.
Here in Hawaii, the Office of Elections has received nearly 200 similar record requests regarding the 2020 election, and the Department of Health (DOH) was also overwhelmed by repeat requesters, mostly nonresidents, who sought former President Obama’s birth records. Just one or two requesters can wreak havoc under the UIPA and divert staff from an agency’s primary mission, as the DOH experienced with extensive and repeated requests from a pair of residents, who also made such requests to former Governor Linda Lingle’s administration, Governor Green when he was a Senator, the Hawaii Health Systems Corporation when Attorney General Anne Lopez was its General Counsel, and even OIP. Despite the laudable purpose behind the UIPA, the law is not always used as intended, which is more likely to occur when there are no fees to keep record requests reasonable and no statutory protection against abuse.
FACT #8: There is no statutory protection against abuses of the record request process in the UIPA or in HB 719. In response to the numerous and repeated requests for President Obama’s birth records, the UIPA was temporarily amended to allow agencies to stop responding when the same person repeatedly requested the same records. But that provision sunsetted several years ago and is no longer part of the UIPA. There is currently no statutory protection against numerous repetitive requests or other forms of abuse of the record request process, and HB 719 does not include any protection against such abuse.
OIP will provide more information in a related article about the deliberative process exception that was added to HB 719, HD 1, SD 2.
For balanced and objective facts about OIP, the UIPA, or open government legislative proposals, check OIP’s website at oip.hawaii.gov, sign up for OIP’s What’s New emailed articles at [email protected], or call (808) 586-1400 to speak to the Attorney of the Day.