Office of Information Practices Director Moya Gray had adopted rules governing the release of government records with a few "technical changes."
The rules have been sent to Gov. Ben Cayetano for his signature.
Gray says the rules represent an imporvement for a large majority of people who request information from government.
(Below is the Hawaii chapter's testimony which is in dispute with Gray's comment.)
Because of questions raised by public-interest groups and the media, Gray said she will create a task force to make recommendations to the OIP on wehther certain documents should be made available more rapidly.
Nov. 5, 1998
Moya Davenport Gray
Office of Information Practices
Honolulu, HI 96813
Re: OIP Draft Rules
The Hawaii chapter of the Society of Professional Journalists
opposes the new draft of the rules. The tone remains bureaucratic,
and the draft still would allow agencies to unduly delay disclosure of
information.
We still object to the time limits in the informal and formal
request systems. Perhaps the problem is one of having two distinct
systems: an informal system and a formal one.
It would appear that a government official could withhold a
record that should be immediately available for up to 10 business days or
two weeks. We believe that some officials do use delaying tactics,
hoping the requester will lose interest or in the case of the news media
the issue will lose its timeliness and hence its newsworthiness.
There have been times when officials drag out the release of
records. This rule would help to condone such actions. We have been
there, we have been delayed and put off, we have been told to go to
OIP for something that should have been released then. We are not
confident that all government employees will release documents that
should be given out immediately.
We don't what is the problem with agencies immediately
releasing documents that they have declared as open, the so-called 59
percent of records?
We have stated this before, and we state it again: Giving
agencies up to 10 days to comply with informal requests violates the spirit
of the Uniform Information Practices Act.
Some changes have been made to reduce the amount of time
to release a document under the so-called formal process; it seems five
business days have been shaved from the limit. The limits range from 25
to 45 business days. We feel that is still too long.
Here are our comments or repeats of previous stands:
-- Informal requests: This leaves open the possibility of
requests of records that should be immediately available being put on the
side for nine to 10 days. Delays have occurred for various reasons, some
political, as people try to stave off bad publicity. Release of records have and will continue to take some time until the reporter no longer needs the
information because the immediacy of the news has passed.
-- Formal requests: The time limits are intolerable. To wait 25 or
45 business days for a record is too long and not acceptable.
-- Formal request notice: Prepayment should not be required.
Section 2-71-14(b)2 should be amended to read:
"For each part of a record held to be exempt from
disclosure, the specific legal authorities under which
the request for access is denied under section,
92F-13, HRS or other laws."
-- Extenuating circumstances: Section 2-71-15 contains an
easy way for government to throw every records request into a 45-day
waiting period. This is still a LOOPHOLE. "To consult" is too easy a
standard. We believe a legal opinion should be the requirement before
extenuating circumstances can be declared.
-- Waiver: We believe the Legislature intended for these to
be waiver of fees, not partial waivers. Section 2-71-32 should be
amended to read: "The requester is a nonprofit organization or has the
primary intention and the actual ability to [widely] disseminate information
from the government record to the public at large."
Our address is P.O. Box 3141, Honolulu, HI 96802. I can be
reached at 525-8642
Thank you for your time and attention.
Sincerely,
Stirling Morita
FOI Chairman
HAWAII ADMINISTRATIVE RULES
TITLE 2
OFFICE OF THE LIEUTENANT GOVERNOR
SUBTITLE 7
OFFICE OF INFORMATION PRACTICES
CHAPTER 71
AGENCY PROCEDURES AND FEES FOR PROCESSING
RECORD REQUESTS
Subchapter 1 General Provisions
§2-71-1 Purpose, scope and construction
§2-71-2 Definitions
§2-71-3 Reporting to the OIP
§§2-71-4 to 2-71-10 (Reserved)
Subchapter 2 Agency Procedures for
Record Requests under
Chapter 92F, Hawaii Revised Statutes
§2-71-11 Informal requests for access to government
records; agency response
§2-71-12 Formal requests for access records; contents
§2-71-13 Formal request received; response; time limits
§2-71-14 Agency's notice
§2-71-15 Extenuating circumstances; disclosures
§2-71-16 Requester's responsibilit abandonment of request
§2-71-17 Segregation of information
§2-71-18 Location of disclosure; alternatives
§2-71-19 Assessment of fees; prepayment
§2-71-20 Public access to disclosable records provided
by a secondary source
§2-71-21 to 2-71-30 (Reserved)
Subchapter 3 Fees for Searching for, Reviewing and Segregating Government Records
§2-71-31 Fees for searching for, reviewing, and
segregating records; exceptions
§2-71-32 Waiver of fees when public interest served
§2-71-33 Fees charged for records that will not be disclosed
§2-71-1 Purpose, scope, and construction. The purpose of this
chapter is to establish:
(1) Procedures and time limits that shall follow when processing
requests to inspect or copy government records under part II
of the Uniform Information Practices Act (Modified), chapter 92F,
Hawaii Revised Statutes; and
(2) The fees that agencies may charge for searching for, reviewing,
and segregating government records and a waiver when the
public interest would be served. The fees set forth in this chapter
are not intended to obstruct public access to disclosable
government records, but rather are intended to allow agencies
some costs in providing access to disclosable records upon request.
[Eff ] (Auth: HRS §92F 42) (Imp: HRS §92F-11)
§2-71-2 Definitions. Unless the context otherwise requires, in this chapter: "Access" means inspection of disclosable government records, acquisition of copies disclosable government records, or both,when requested by any person. "Agency" shall be as defined in section 92F-3, HRS. "Business day" means a government agency business day within the office hours set forth in section 80-1, HRS, excluding Saturdays, Sundays, and state holidays observed pursuant to chapter 8, HRS. "Disclosable record" means a government record that is required to be made available for inspection and copying under chapter 92F, HRS, after payment of applicable fees. "Formal request" means a request the written, electronic, or other physical form that a person submits to an agency for access to records and that contains the information prescribed 2-71-12(b). "Government record" shall be as defined in section 92F-3, HRS. "Individual" shall be as defined in section 92F-3, HRS. "Informal request" means a request, in any form, that a person submits to an agency for access to records and to which the agency responds in accordance with section 2-71-11. "Maintain" means to hold, possess, preserve, retain, store, or administratively control "OIP" means the office of information practices, office of the lieutenant governor, State of Hawaii. "Person" shall be as defined in section 92F-3, HRS. "Personal record" shall be as defined in section 92F- 3, HRS. "Prepayment" means the fees that a requester must tender to the agency before the agency begins processing a request for records in accordance with section 2-71-19 (b) . "Record" means one or more government records, or any portion thereof, requested for public inspection or copying. "Requester" means any person making a request for public inspection or copying of a government record under this chapter. "Review" means to examine a government record, in response to a request for access to the record, in order to determine which portions, if any, of the record are exempt from disclosure by law. Review does not include the time spent by the agency, person, to resolve issues of general law or policy regarding the applicability of exceptions to disclosure under chapter 92F, HRS. "Search" means to look for a government record including page-by-page or line-by-line identification of a government record. A search may be performed manually or by computer using existing retrieval or programming capabilities. "Segregate" means to prepare a government record for disclosure by excising any portion of the record that is protected from disclosure under chapter 92F, HRS.
[Eff ] (Auth: HRS §92F(Imp: HRS §92F-3)
§2-71-3 Reporting to the OIP. As required by the OIP, each agency shall file with the office of information practices a report the following information: (1) The number of requests for access to records for which fees were assessed; and (2) The number of requests for access to records which qualified for a waiver of fees pursuant to section 2-71-32, and the amount of fees waived for each request. [Eff ] (Auth: HRS §92F-42) (Imp: HRS 92F-42)
§§2-71-4 to 2-71-10 (Reserved).
§2-71-11 Informal requests for access to government records; agency response. (a) Any person may, during an agency's regular business hours, submit an informal request for access to records.
(b) Upon receiving an informal request under this
section, an agency shall respond to the request by doing
one or more of the following:
(1) Provide access to any disclosable record requested
pursuant to part II of chapter 92F, HRS, in a reasonably timely
manner; provided that if the agency will charge $15 or more
in fees, pursuant to section 2-71-19, the agency shall inform the
person of the amount of fees, or an estimate thereof, before
processing the request.
(2) Deny access to all or any part of the records requested that are confidential under section 92F- 13, HRS, or any other law; provided that if the requester disagrees with the agency's denial, the agency shall advise the requester of the option of submitting a formal request.
(3) Inform the requester that the agency does not
maintain the record; or
(4) Inform the requester to submit a formal request
in accordance with section 2-71-12.
(c) When a requester is not satisfied with the agency's
response, or its failure to respond, to the informal request,
the requester may make a formal request for access to
records in accordance with section 2-71-12.
(d) A request that complies with section 2-71-12 shall
be treated as a formal request under this chapter, unless
otherwise agreed upon by the requester and the agency.
[Eff ] §92F-42) (Imp: HRS §92 -11)
§2-71-1 Formal requests for access to government records;
contents. (a) Any person may, during an agency's regular
business hours, submit a request for access to
records in accordance with this section.
(b) A formal request shall be in writing and shall the
following information:
(1) Information that would enable the agency to correspond
with or contact the requester;
(2) A reasonable description of the requested record to
enable agency personnel to locate it with reasonable effort.The description should include, if known, the record name,
subject matter, date, location, and any other additional
information that reasonably describes the requested record;
(3) If applicable, a request for a waiver of fees for searching for, reviewing, or segregating the requested record, when the requester believes that a waiver would serve the public interest in accordance with section 2-71-32; provided that the request states the requester's identity and other facts that support the request for a waiver of fees; and
(4) A request to inspect or obtain a copy of the records described and, if applicable, the means by which the requester would like to receive the copy. [Eff ] (Auth: HRS §92F-42) (Imp: HRS 92F-11)
§ 2-71-13 Formal request received; agency response; time limits. (a) When an agency receives a request for access to a record that is:
(1) Required to be disclosed under 92F-12, HRS, in its
entirety; or
(2) Available for public access in its entirety,
The agency shall disclose the record within a reasonable
time not to exceed ten business days.
(b) When an agency receives a request for access
to a record that is not covered by subsection (a), including
records that will be segregated, the agency shall:
(1) Provide a notice in accordance 2-71-14 within ten
business days; and
(2) Disclose the requested record within five business
days after providing notice or, when applicable, after
receiving a prepayment under section 2-71-19; provided that
the agency may disclose incrementally when authorized
under section 2-71-15.
(c) When an agency receives a request for access to a record that is not covered by subsection (a), and extenuating circumstances exist in accordance with section 2-71-15, the agency may provide a written acknowledgment within ten business days of the date of the request. The written acknowledgment, if provided, shall state that the notice required under 2-71-14 shall be sent within a reasonable time not to exceed twenty business days following the date when the agency received the request and shall:
(1) Provide a notice in accordance with section
2-71-14 within the time stated in the written
acknowledgment; and
(2) Disclose the requested record within five business
days after providing notice or, when applicable, after
receiving a prepayment under section 2-71-19; except
where the agency is authorized to disclose incrementally
under section 2-71-15.
(d) When a unit of an agency receives a request for a record that should have been otherwise directed
to another unit of the same agency for a response, the unit receiving the request shall promptly forward the request to the head of the unit's department.
(e) When one unit of an agency forwards a request
to the head of that department, the duties of this section
do not commence until the head receives the request.
(f) When an agency receives a request for a record that
it does not maintain and reasonably believes that another
agency maintains the record, the agency receiving the request
shall provide a notice in accordance with section 2-71-14(c)(1).
[Eff ] (Auth: HRS §92F-42 (Imp: HRS §92F-11)
§2-71-14 Agency's notice. (a) When the agency intends to disclose a record in response to a formal request, the agency's written notice to the requester shall state:
(1) The location where the record will be made
available to the requester in accordance with
section 2-71-18;
(2) The following information about fees, if applicable:
(A) A good faith estimate of all fees that will be
charged to the requester in accordance with section 2-71-19;
(B) Whether a requested waiver has been granted
under section 2-71-32; and
(C) The amount of prepayment required, if any.
(3) Instructions, if any, regarding any additional
arrangements that the requester must make with the
agency to inspect or copy the records;
(4) When the agency will make the record available
to the requester under 2-71-13; and
(5) A description of extenuating circumstances, if any,
under section 2-71-15, and, if it is the case, the agency's
intent to disclose the records incrementally.
(b) When the agency intends to deny access to all or part of the information in the requested record, the agency's notice to the requester shall state:
(1) The specific record or parts of the record
that will not be disclosed; and
(2) The specific legal authorities under which the
request for access is denied under section 92F- 13, HRS,
or other laws.
(c) When an agency is unable to disclose a record,
the agency's notice shall state that the agency is unable
to disclose the requested record, or part thereof, because:
(1) The agency does not maintain the record, and
the agency may provide the name and address of another
agency that, as the agency reasonably believes, may
maintain the requested record;
(2) The agency requires a further description or
clarification of the requested record in order to identify and
search for the record; or
(3) The request requires the agency to create a
summary or compilation of information from records that is
not readily retrievable.
[Eff ] (Auth: (Ims: HRS § 92F-11)
§2-71-15 Extenuating circumstances; incremental disclosures. (a) As used in this chapter, extenuating circumstances exist when:
(1) The agency must consult with another person
to determine whether the record is exempt from disclosure
under chapter 92F, HRS;
(2) The request requires extensive agency efforts
to search, review, or segregate the records or otherwise
prepare the records for inspection or copying;
(3) The agency requires additional time to respond to
the request in order to avoid an unreasonable interference
with statutory duties and functions; or
(4) A natural disaster or other situation beyond the agency's
control prevents the agency from sending a notice or responding
to the request within ten business days.
(b) When extenuating circumstances are present, and when the requested records are voluminous, an agency may, in good faith, elect to make the records available in increments and shall:
(1) Send a notice in accordance with section 2-71-14;
provided that the agency may instruct the requester in the
notice to pay a specified portion of the estimated fees
before the agency processes each increment in lieu of making
one prepayment under section 2-71-19; and
(2) Disclose each increment within twenty business days
after either:
(A) The prior incremental disclosure, when receiving one
prepayment in accordance with section 2-71-19; or
(B) Receipt of each increment prepayment required
under this rule.
(c) If an agency processes a request in increments, the
agency shall do so until:
(1) All requested records have been disclosed; or
(2) The requester abandons the request.
[Eff ] (Auth: (Imp: HRS §92F-11)
§2-71-16 Requester's responsibilities; abandonment of request. (a) The requester shall: (l) Pay any fees assessed by the agency in accordance with sections 2-71-15 or 2-71-19, whichever is applicable; (2) Make any arrangements with the agency to inspect and copy the disclosable record as instructed by the agency's notice; and (3) If able, provide the agency with further clarification or description of the requested record if so requested by the agency's notice under section 2-71-14. (b) The requester shall be presumed to have abandoned the record request, and the agency shall have no duty to further precess the request, when the requester fails to comply with subsection (a) within twenty business days after, whichever of the following is applicable: (1) The postmark data of the agency's notice; (2) The date that the agency made the record available under sections 2-71-13 or 2-71-16 if the requester was informed in a reasonable manner as to when and where the record would be made available [Eff ]
§2-71-17 Segregation of information in records.
(a) When information in a requested record is not
required to be disclosed under section 92F-1S, HRS, or
any other law, an agency shall assess whether the
information is reasonably seqregable from the requested
record. If the record is reasonably segreqable, the
agency shall:
(1) Provide access to the portions of the record
that are required to be disclosed under
chapter 92F, HRS; and
(2) Provide a notice to the requester in
accordance with section 2-71-14(b) regarding
information that is not disclosed.
(b) An agency shall segregate information from a
requested record in such a way so that it is reasonably
apparent that information has been removed from the
record. An agency shall not replace information that
has been segregated with information or text that did
not appear in the original record.
§2-71-18 Location of disclosure; alternatives.
(a) The location where an agency makes a record
available to the requester for inspection or copying
shall be where the agency maintains the record or where
the agency has accommodations for inspection and
copying.
(b) If access to a record is requested at a
location other than as provided in subsection (a) , the
agency shall make a reasonable effort to accommodate
the request so long as the record is not the agency's
only original record and the arrangement does not
unreasonably interfere with the agency's functions.
(c) When a requester requests that a copy of a
record be transmitted by mail, telefax, or other means,
the agency shall make a reasonable effort to transmit
the copy of the record in the manner sought by the
requester; provided that the requester pays all fees
assessed under section 2-71-19 and the transmission
does not unreasonably interfere with the agency's
functions.
§2-71-19 Assessment of fees; prepayment
(a) When a person requests access to a government
record under part II of chapter 92F, HRS, the agency
may charge the requester:
(1) Fees for searching for, reviewing, and
segregatinq the record; provided that these
fees shall be assessed in accordance with
this chapter; and
(2) Any other lawful fees.
(b) An agency may require a requester to prepay
the following before the agency begins the search for
and review of records in order to respond to a request
for access
(1) Fifty percent of the total estimated fees
for searching for, reviewing, and segregating
records when the estimated fees exceed $30;
(2) One hundred percent of other estimated
lawful fees under paragraph (a) for other
services to prepare and or transmit the
record; and
(3) One hundred percent of the outstanding fees
from previous requests, including abandoned
requests, in accordance with subsection (6)
(c) The agency shall inform the requester of the
requirement to prepay in its notice in accordance with
section 2-71-14
(d) A requester is liable for and shall pay any
fees outstanding for services rendered by an agency to
respond to any previous or current request. Upon
written request, the agency shall provide an itemized
bill of all fees assessed.
§2-71-20 Public access to disclosable records
provided by a secondary source.
(a) An agency may make arrangements to have
another person serve as a secondary source of agency
information: provided that the agency itself does the
following:
(1) Allows public inspection and duplication of
any disclosable government record that the
agency maintains pursuant to chapter 92F,
HRS; and
(2) Performs, as necessary, any review and
segregation of a government record betore
providing the record, or a copy thereof, to
the secondary source for the purpose at
making the record available for public
inspection and copying upon request.
(b) "Secondary source" means a person, including another agency, commercial entity, or nonprofit orqanization, with whom an agency makes arrangements to offer public inspection and copying of disclosable information from government records of the agency. 2-7l-2l to 2-71-3C (reserved)
§2-71-31 Fees for searching for, reviewing, and
segregating records; exceptions. (a) When an agency
intends to charge fees pursuant to section
2-71-19(a) (1), the agency shall charge the following
fees, except as otherwise provided in subsection (b)
(1) For a search for the record, $2.50 per
fifteen minutes or fraction thereof;
(2) For the review and segregation of the record,
$5 per fifteen minutes or fraction thereof;
and
(3) If applicable, the actual rate of charge,
based upon time expenditure, that is charged
to the agency by a person other than the
agency for services to assist the agency in
the search for the record.
The agency shall not assess the first $30 in total
amount of the fees under paragraphs (1) and (2).
(b) For those agencies which, by statute, are required
to recover actual costs, in lieu of the fees set forth in subsection
(a), an agency may establish fees, by rule, that do not
exceed in their totality the actual costs incurred from
searching for, reviewing, and segregating records. The
fees may include:
(1) The actual time expended by personnel in
performing the search, review, or segregation
of the record; and
(2) Where the information requested is part of an
electronic database or other electronic
method of informaticn storage, the actual
cost of:
(A) Modifications to existing programming
capacity; or
(B) Additional equipment or software used to
search for, review, or segregate the information
(c) An agency that will establish fees under
subsection (b) shall submit, before adoption of the
rule, to the OIP for review a copy of the rule,
including any amendments, setting forth the fees
(d) No fees may be assessed by the agency under
this section for the search for, review, or segregation
of a record when:
(1) It is not necessary for the agency to search
for, review, or segregate a record in order
to permit inspection or duplication of the
requested record; and
(2) To the extent permitted by section 2-71-02,
the agency finds that the public interest
would be served by a waiver of these fees.
(e) An agency may waive the fees for any agency
or any federal or foreign government entity requesting
access to a government record
§2-71-32 Waiver of fees when public interest
served. (a) An agency shall waive $6O of the fees
that may be assessed under section 2-71-31 when:
(1) The request for a waiver of fees is supported
by a statement of facts, including the
requester's identity, in accordance with
section 2-71-12; and
(2) The agency finds that the waiver of fees
would be in the public interest pursuant to
this section,
(b) A waiver of fees is in the public interest
when:
(1) The requested record pertains to the
operation or activities of an agency;
however, the agency shall not consider the
record's relative importance to the public in
applying this subsection;
(2) The record is not readily available in the
public domain; and
(3) The requester has the primary intention and
the actual ability to widely disseminate
information from the government record to the
general public at large.
2-7l-33 Fees charged for records that will not be disclosed. The agency may assess and collect fees for the search or review of a government record in accordance with section 2-71-31 even if the requested record will not be disclosed in its entirety, or a substantial portion thereof, if the agency reasonably believed that the requested record would be disclosable before searching for or reviewing the record. If the regrester fails to pay the fees, the agency may assess the outtstanding fees in accordance with section 2-71-19.
HAWAII ADMINISTRATIVE RULES TITLE 5 DEPARTMENT OF THE ATTORNEY GENERAL SUBTITLE 4 OFFICE OF INFORMATION PRACTICES
CHAPTER 41
AGENCY PROCEDURES AND FEES FOR PROCESSING
GOVERNMENT RECORD REQUESTS
Subchapter 1: General Provisions
§5-41-1 Purpose, scope, and construction
§5-41-2 Definitions
§5-41-3 to 5-41-10 (Reserved)
Subchapter 2: Agency Procedures for Processing Record
Requests under Part II of Chapter 92F, Hawaii Revised Statutes
§5-41-11 Informal requests for access to government records
agency response
§5-41-12 Formal requests for access to government records;
requester's rights; contents
§5-41-13 Formal request received; agency response
§5-41-14 Agency's notice
§5-41-15 Time limits for disclosure of requested records
§5-41-16 Extenuating circumstances; incremental disclosures
§5-41-17 Requester's responsibilities; abandonment of request
§5-41-18 Segregation of information in records
§5-41-19 Location of disclosure; alternatives
§5-41-20 Assessment of fees; prepayment
§5-41-21 Public access to disclosable records provided by a
secondary source
§§5-41-22 to 5-41-30 (Reserved)
Subchapter 3: Fees for Searching, Reviewing, and Segregating
Government Records
§5-41-31 Fees for searching, reviewing, and segregating record;
exceptions
§5-41-32 Waiver of fees when public interest served
§5-41-33 Fees charged for records exempt or not located
SUBCHAPTER 1 GENERAL PROVISIONS §5-41-1 Purpose, scope, and construction. The purpose of this chapter is to establish: (1) Procedures and time limits that agencies shall follow when processing requests to inspect or copy government records under part II of the Uniform Information Practices Act (Modified), chapter 92F, Hawaii Revised Statutes; and (2) The fees that agencies may charge for searching for, reviewing, and segregating government records and a waiver of these fees when the public interest would be served. The fees set forth in this chapter are not intended to obstruct public access to disclosable government records, but rather are intended to allow agencies to recover some costs in providing access to disclosable records upon request. [Eff ] (Auth: HRS §92F-42) (Imp: HRS §92F-11) §5-41-2 Definitions. Unless the context otherwise requires, in this chapter: "Access" means inspection of disclosable government records, acquisition of copies of disclosable government records, or both, when requested by any person. "Agency" shall be as defined in section 92F-3, HRS. "Business day" means a government agency business day within the office hours set forth in section 80-1, HRS excluding Saturdays, Sundays, and state holidays observed pursuant to chapter 8, HRS. "Disclosable record" means a government record that is required to be made available for public inspection and copying under chapter 92F, HRS, after payment of applicable fees. "Formal request" means a written request that a person submits to an agency for access to records and that contains the information prescribed by section 5-41-12(b). "Government record" shall be as defined in section 92F-3, HRS. "Individual" shall be as defined in section 92F-3, HRS. "Informal request" means a request, in any form, that a person submits to an agency for access to records and to which the agency responds in accordance with section 5-41-11. "Maintain" means to hold, possess, preserve, retain, store, or administratively control. "OIP" means the office of information practices, department of the attorney general, State of Hawaii. "Person" shall be as defined in section 92F-3, HRS. "Personal record" shall be as defined in section 92F-3, HRS. "Prepayment" means the fees that a requester must tender to the agency before the agency begins processing a request for records in accordance with section 5-41-20(b). "Record" means one or more government records, or any portion thereof, requested for public inspection or copying. "Requester" means any person making a request for public inspection or copying of a government record under this chapter. "Review" means to examine a government record, in response to a request for access to the record, in order to determine which portions, if any, of the record are exempt from disclosure by law. Review does not include the time spent by the agency, or another person, to resolve issues of general law or policy regarding the applicability of exceptions to disclosure under chapter 92F, HRS. "Search" means to look for a government record, including page-by-page or line-by-line identification of a government record. A search may be performed manually or by computer using existing retrieval or programming capabilities. "Segregate" means to prepare a government record for disclosure by excising any portion of the record that is protected from disclosure under chapter 92F, HRS. [Eff ] (Auth: HRS §92F-42) (Imp: HRS §92F-3)
Definitions of "disclosable record," "formal request," "informal request" and "prepayment" were not included in original draft of rules. These were added at the request of various government agencies, according to the OIP impact statement.
According to the OIP impact statement, the definition of review is so no one gets charged for the time to resolve where the records are and 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. . ."
OIP staff attorney Lorna Loo Aratani says informal and formal requests were set up so that agencies that didn’t want to go through a hassle could release them without notification and other requirements.
SUBCHAPTER 2 AGENCY PROCEDURES FOR PROCESSING RECORD REQUESTS UNDER PART II OF CHAPTER 92F, HAWAII REVISED STATUTES §5-41-11 Informal requests for access to government records; agency response. (a) Any person may, during an agency's regular business hours, submit an informal request for access to records. (b) Upon receiving an informal request under this section, an agency shall respond to the request by doing one or more of the following: (1) Provide access to any disclosable record requested pursuant to part II of chapter 92F, HRS, in a reasonably timely manner; provided that if the agency will charge the requester $15 or more in fees, pursuant to section 5-41-20, the agency shall inform the person of the amount of fees, or an estimate thereof, before processing the request. (2) Deny access to all or any part of the records requested that are confidential under section 92F-13, HRS, or any other law; provided that if the requester disagrees with the agency's denial, the agency shall advise the requester of the option of submitting a formal request. (3) Inform the requester that the agency does not maintain the record; or (4) Inform the requester to submit a formal request in accordance with section 5-41-12. (c) When a requester is not satisfied with the agency's response, or failure to respond, to the informal request, the requester may make a formal request for access to records in accordance with section 5-41-12. (d) A request that complies with section 5-41-12 shall be treated as a formal request under this chapter, unless otherwise agreed upon by the requester and the agency. [Eff ] (Auth: HRS §92F-42) (Imp: HRS §92F-11)
OIP Director Moya Davenport Gray says the informal procedures should relate to the 59 percent of government records that agencies say are public record.
Aratani says there is no definition of the requirement to release such records "in a reasonably timely manner." That period could be up to 10 days, she says.
Aratani says OIP hopes most requests will be on an informal basis. "This is the fastest way. You don’t have to resort to the formal procedures. Judiciary wants to do it this way. These are the kind of requests where people call on the telphone. They show up at the counter and they just say they want the information. (They say:) 'I don’t want to break down my request.' . . . We consider it the fast track process."
Aratani says: "There are some agencies that also talked to us: 'We want all our requests in writing, we want to keep track of what they’re asking for, we have a set system where our supervisors have to look at it.' Hopefully because the agency went thorugh the exercise of doing the records report, they’ve seen the record, they feel comfortable with the fact that; we’re hoping that fact will ultimately make the process go faster."
According to the OIP impact statement, "An agency receiving an informal request has the option of working on the informal request, or instructing the requester to submit a formal request."
§5-41-12 Formal requests for access to government records requester's rights; contents. (a) Any person may, during an agency's regular business hours, submit a formal request for access to records in accordance with this section. A person who submits a formal request in accordance with this chapter shall have recourse to the procedures, rights, and remedies under this chapter and chapter 92F, HRS. (b) A formal request shall be in writing and shall contain the following information: (1) Information that would enable the agency to correspond with or contact the requester; (2) A reasonable description of the requested record to enable agency personnel to locate it with reasonable effort. The description should include, if known, the record name, subject matter, date, location, and any other additional information that reasonably describes the requested record; (3) If applicable, a request for a waiver of fees for searching for, reviewing, or segregating the requested record, when the requester believes that a waiver would serve the public interest in accordance with section 5-41-32; provided that the request states the requester's identity and other facts that support the request for a waiver of fees; and (4) A request to inspect or obtain a copy of the records described and, if applicable, the means by which the requester would like to receive the copy. [Eff ] (Auth: HRS §92F-42) (Imp: HRS §92F-11) §5-41-13 Formal request received; agency response. (a) When an agency receives a formal request, the agency shall do one of the following within ten business days after receiving the request: (1) Send a written notice to the requester in accordance with section 5-41-14; (2) Where the agency will be charging $15 or less in fees, pursuant to section 5-41-20: (A) Provide access to any disclosable record requested and inform the requester of the availability of the record; and (B) If applicable, provide notice to the requester in accordance with section 5-41-14(b) regarding confidential information that is not disclosed; or (3) Where extenuating circumstances exist in accordance with section 5-41-16, provide a written acknowledgment of the request stating that the notice required under section 5-41-14 shall be sent within ten business days after providing the initial written acknowledgment. (b) When a unit of an agency receives a request for a record that should have been otherwise directed to another unit of the same agency for a response, the unit receiving the request shall promptly: (1) Inform the requester to make the request to the appropriate unit of the agency; or (2) Forward the request to the appropriate unit of the agency. (c) When one unit of an agency forwards a request to another unit, the duties of this section do not commence until the appropriate unit receives the request. (d) When an agency receives a request for a record that it does not maintain and reasonably believes that another agency maintains the record, the agency receiving the request shall provide a notice in accordance with section 5-41-14(c)(1). [Eff ] (Auth: HRS §92F-42) (Imp: HRS §92F-11)
According to the OIP impact statement, formal requests "help to minimize misunderstandings between an agency and the requester" on whether he or she has actually requested records and which records are actually requested.
OIP Director Moya Davenport Gray says 21 percent of government records fall into the so-called gray area between public and confidential. She said these documents usually have some confidential information along with public information.
These kinds of records are the kind she expects will be covered by the two procedures above so that not all records will go through this review, she says.
The OIP impact statement says this section allows an agency to provide access within the 10-day period without having to give written notice when the agency will charge fees of $15 or less.
The original draft of the rules called for the agency to forward the request to another agency where the records are located -- if they are part of the same department.
But the new rules give an agency options because agencies complained that satellite operations may not know where to send the request.
§5-41-14 Agency's notice. (a) When the agency intends to disclose a record in response to a formal request, the agency's notice to the requester shall state: (1) The location where the record will be made available to the requester in accordance with section 5-41-19; (2) The following information about fees, if applicable: (A) A good faith estimate of all fees that will be charged to the requester under section 5-41-20; (B) Whether a requested waiver has been granted under section 5-41-32; and (C) The amount of prepayment. (3) Instructions, if any, regarding any additional arrangements that the requester must make with the agency to inspect or copy the records; (4) The time period, under section 5-41-15, after which the agency will make the record available to the requester; and (5) A description of extenuating circumstances, if any, under section 5-41-16, and, if it is the case, the agency's intent to disclose the records incrementally. (b) When the agency intends to deny access to all or part of the information in the requested record, the agency's notice to the requester shall state: (1) The parts of the record that are confidential; and (2) The legal authority under which the request for access is denied under section 92F-13, HRS, or other laws. (c) When an agency is unable to disclose a record, the agency's notice shall state that the agency is unable to disclose the requested record, or part thereof, because: (1) The agency does not maintain the record, and the agency may provide the name and address of another agency that, as the agency reasonably believes, may maintain the requested record; (2) The agency requires a further description or clarification of the requested record in order to identify and search for the record; or (3) The request requires the agency to create a summary or compilation of information from records that is not readily retrievable. [Eff ] (Auth: HRS §92F-42) (Imp: HRS § 92F-11)
OIP's original draft had required agencies to explain specifically the reason for keeping information confidential.
But the new rules require that the agency only cite the applicable legal authority for confidentiality.
Because each agency has varied degrees of programming in computer systems, OIP determined that specific rules governing this would be "unduly restrictive."
Gray says: "So if you feel you are getting stonewalled by a bureaucrat somewhere out on Maui, give us a call and we’ll do what we can to assist you in getting those records. That’s out personal commitment to members of the public. The rules give you some specific tools to work with."
§5-41-15 Time limits for disclosure of requested records. When an agency intends to disclose a requested record, it shall make the record available to the requester as follows: (1) Within ten business days after the agency: (A) Receives the request, if no notice is to be given under section 5-41-13(a)(2); or (B) Gives notice to the requester pursuant to section 5-41-14; or (C) Receives the requester's prepayment, or written assurance of payment, if such is required under section 5-41-20; (2) When extenuating circumstances exist as set forth under section 5-41-16, within thirty business days after the agency: (A) Gives notice to the requester pursuant to section 5-41-14; or (B) Receives the requester's prepayment if such is required under section 5-41-20; or (3) When records are to be disclosed incrementally, within the time limits set forth in section 5-41-16. [Eff ] (Auth: HRS §92F-42) (Imp: HRS § 92F-11)
Aratani acknowledges that the 10-day limitation is an arbitrary figure.
Gray also acknowledges that there is nothing to prevent an agency from taking a simple records request and dragging it out for 30 days. OIP would work with the affected agency to handle the request.
But Gray says there was never an enforcement provision and there are no guarantees that an agency can't abuse this section.
§5-41-16 Extenuating circumstances; incremental disclosures. (a) As used in this chapter, extenuating circumstances exist when: (1) The agency must consult with another person to determine whether the record is exempt from disclosure under chapter 92F, HRS; (2) The request requires extensive agency efforts to search, review, or segregate the records, or otherwise prepare the records for inspection or copying; (3) The agency requires additional time to respond to the request in order to avoid an unreasonable interference with its other statutory duties and functions; or (4) A natural disaster or other situation beyond the agency's control prevents the agency from sending a notice or responding to the request within ten business days. (b) When extenuating circumstances are present, and when the requested records are voluminous, an agency may, in good faith, elect to make the records available in increments and shall: (1) Send a notice in accordance with section 5-41-14; provided that the agency may instruct the requester in the notice to pay a specified portion of the estimated fees before the agency processes each increment in lieu of making one prepayment under section 5-41-20; and (2) Disclose each increment within twenty business days after either: (A) The prior incremental disclosure, when receiving one prepayment in accordance with section 5-41-20; or (B) Receipt of each incremental prepayment required under this rule. (c) If an agency processes a request in increments, the agency shall do so until: (1) All requested records have been disclosed; or (2) The requester abandons the request. [Eff ] (Auth: HRS §92F-42) (Imp: HRS §92F-11)
Gray says she hopes agencies will act in good faith in not abusing use of extenuating circumstances. Under these rules, someone could delay a records request for 30 days by saying he or she needs to consult with someone, but Aratani says the agencies have to meet a bunch of other notice and other requirements and it might not be worth it for them to misuse this provision.
§5-41-17 Requester's responsibilities; abandonment of request. (a) The requester shall: (1) Pay any fees assessed by the agency in accordance with section 5-41-16 or 5-41-20, whichever is applicable; (2) Make any arrangements with the agency to inspect and copy the disclosable record as instructed by the agency's notice; (3) Provide written assurance of payment of remaining fees when requested by the agency under section 5-41-20; and (4) Provide the agency with further clarification or description of the requested record if so instructed in the notice under section 5-41-14. (b) The requester shall be presumed to have abandoned the record request, and the agency shall have no duty to further process the request, when the requester fails to comply with subsection (a) within twenty days after, whichever of the following is applicable: (1) The postmark date of the notice; (2) The date that the agency made the record available under section 5-41-15 or 5-41-16 if the agency had informed the requester as to when and where the record would be made available in a reasonable manner, such as in the notice under section 5-41-14; or (3) The date that the agency requested written assurance of payment from the requester under section 5-41-20. [Eff ] (Auth: HRS §92F-42) (Imp: HRS § 92F-11)
§5-41-18 Segregation of information in records. (a) When information in a requested record is not required to be disclosed under section 92F-13, HRS, or other laws, an agency shall assess whether the confidential information is reasonably segregable from the requested record. If the record is reasonably segregable, the agency shall: (1) Provide access to the portions of the record that are required to be disclosed under chapter 92F, HRS; and (2) Provide a notice to the requester in accordance with section 5-41-14(b) regarding confidential information that is not disclosed. (b) An agency shall segregate confidential information from a requested record in such a way so that it is reasonably apparent that information has been removed from the record. An agency shall not replace information that has been segregated with information or text that did not appear in the original record. [Eff ] (Auth: HRS §92F-42) (Imp: HRS §92F-11)
§5-41-19 Location of disclosure; alternatives. (a) The location where an agency makes a record available to the requester for inspection or copying shall be where the agency maintains the record or where the agency has accommodations for inspection and copying. (b) If access to a record is requested at a location other than as provided in subsection(a), the agency shall make a reasonable effort to accommodate the request so long as the record is not the agency's only original record and the arrangement does not unreasonably interfere with the agency's functions. (c) When a requester requests that a copy of a record be transmitted by mail, telefax, or other means, the agency shall make a reasonable effort to transmit the copy of the record in the manner sought by the requester; provided that the requester pays all fees assessed under section 5-41-20 and the transmission does not unreasonably interfere with the agency's functions. [Eff ] (Auth: HRS §92F-42) (Imp: HRS §92F-11)
Aratani says hopefully an agency will tell someone where to take their records request if they are at the wrong agency -- if the agency knows. Note: In the earlier draft of the rules, the agency was required to turn over the request to another agency if they are subdivisions of the same department.
§5-41-20 Assessment of fees; prepayment. (a) When a person requests access to a government record under part II of chapter 92F, HRS, the agency may charge the requester: (1) Fees for searching for, reviewing, and segregating the record to respond to the request; provided that these fees shall be assessed in accordance with this chapter; and (2) Any other fees, permitted by law, ordinance, or agency rule, for making a copy of the record, and for any other service that an agency may provide, including transmission, translation, and monitoring the inspection of records. (b) An agency may require a requester to prepay the following before the agency begins the search for and review of records in order to respond to a request for access: (1) Fifty per cent of the total estimated fees for searching for, reviewing, and segregating records; (2) One hundred per cent of the estimated fees under paragraph (a)(2) for other services to prepare and or transmit the record; and (3) One hundred per cent of the outstanding fees from previous requests, including abandoned requests, in accordance with subsection (e). (c) The agency shall inform the requester of the requirement to prepay in its notice in accordance with section 5-41-14 when the estimated fees exceed $15. (d) When an agency, at a later time, determines that the actual fees may exceed the estimated fees by more than $20, the agency may request the requester to provide written assurance of payment of the remaining fees. A requester's failure to provide written assurance shall be considered abandonment of the record request under section 5-41-17. (e) A requester is liable for and shall pay any fees outstanding for services rendered by an agency to respond to any previous or current request. Upon written request, the agency shall provide an itemized bill of all fees assessed. [Eff ] (Auth: HRS §92F-42) (Imp: HRS §92F-42)
Aratani says fees come into play only when the search takes longer than 15 minutes, otherwise the requester is charged for copying costs.
§5-41-21 Public access to disclosable records provided by a secondary source. (a) An agency may make arrangements to have another person serve as a secondary source of agency information; provided that the agency itself does the following: (1) Allows public inspection and duplication of any disclosable government record that the agency maintains pursuant to chapter 92F, HRS; and (2) Performs, as necessary, any review and segregation of a government record before providing the record, or a copy thereof, to the secondary source for the purpose of making the record available for public inspection and copying upon request. (b) "Secondary source" means a person, including another agency, commercial entity, or nonprofit organization, with whom an agency makes arrangements to offer public inspection and copying of disclosable information from government records of the agency. [Eff ] (Auth: HRS §92F-42) (Imp: HRS §92F-42) §§5-41-22 to 5-41-30 (Reserved).
Aratani says that under the Uniform Information Practices Act, sole source information providers are not permitted. The agency still has an obligation to disclose records even though it has a contract with a secondary source to put on a computer or online, etc.
SUBCHAPTER 3 FEES FOR SEARCHING FOR, REVIEWING, AND SEGREGATING GOVERNMENT RECORDS §5-41-31 Fees for searching for, reviewing, and segregating records; exceptions. (a) When an agency intends to charge fees pursuant to section 5-41-20(a)(1), the agency shall charge the following fees, except as otherwise provided in subsection (b): (1) For a search for the record, $2.50 per fifteen minutes or fraction thereof, except that no fee shall be charged for the actual time spent in a record search that is performed in fifteen minutes or less; (2) For the review and segregation of the record, $5 per fifteen minutes or fraction thereof, except that no fee shall be charged for the actual time spent in the review and segregation of a record that is performed in fifteen minutes or less; and (3) If applicable, the actual rate of charge, based upon time expenditure, that is charged to the agency by a person other than the agency for services to assist the agency in the search for the record. (b) In lieu of the fees set forth in subsection (a), an agency may establish fees, by statute, ordinance, or rule, that do not exceed the actual costs incurred from searching for, reviewing, and segregating of records, which may include: (1) The actual time expended by personnel in performing the search, review, or segregation of the record; and (2) Where the information requested is part of an electronic database or other electronic method of information storage, the actual cost of: (A) Modifications to existing programming capacity; or (B) Additional equipment or software used to search for, review, or segregate the information. (c) An agency that establishes or has established fees under subsection (b) shall submit to the OIP a copy of the statute, ordinance, or rule setting forth the fees. (d) No fees may be assessed for the search for, review, or segregation of a record when: (1) It is not necessary for the agency to search for, review, or segregate a record in order to permit inspection or duplication of the requested record; or (2) To the extent permitted by section 5-41-32, the agency finds that the public interest would be served by a waiver of these fees. (e) An agency may waive the fees for any agency or any federal or foreign government entity requesting access to a government record. [Eff ] (Auth: HRS §92F-42) (Imp: HRS §92F-42)
§5-41-32 Waiver of fees when public interest served. (a) An agency shall waive up to $30 of the fees to be assessed under section 5-41-31 when: (1) The request for a waiver of fees is supported by a statement of facts, including the requester's identity in accordance with section 5-41-12; and (2) The agency finds that the waiver of fees would be in the public interest pursuant to this section. (b) A waiver of fees is in the public interest when: (1) The requested record pertains to the operation or activities of an agency; however, the agency shall not consider the record's relative importance to the public in applying this subsection; (2) The record is not readily available in the public domain; and (3) The requester has the primary intention and the actual ability to widely disseminate information from the government record to the general public at large. [Eff ] (Auth: HRS §92F-42) (Imp: HRS §92F-42) §5-41-33 Fees charged for records determined to be confidential. The agency may assess and collect fees for the search or review of a government record in accordance with section 5-41-31 even if the requested record is determined to be confidential in its entirety or a substantial portion thereof if the agency reasonably believed that the requested record would be disclosable before searching for or reviewing the record. If the requester fails to pay the fees, the agency may assess the outstanding fees in accordance with section 5-41-20. [Eff ] (Auth: HRS §92F-42) (Imp: HRS §92F-42) Last modified: May 14, 1998
Aratani and Gray say the $30 waiver would cover newspapers and educational research. They say they tried to broaden the federal waiver.