Bill would limit public's access to state records

By Lynda Arakawa
Advertiser Capitol Bureau

A bill some fear could infringe on the public's access to government records is on the table in the Legislature.

The measure, Senate Bill 3185, would allow the state Office of Information Practices to declare someone a "vexatious requester" if the person has a pattern of abusing the state's open records laws. Under the bill, which is under discussion in House-Senate conference committee, the office would be allowed to restrict that person's requests for certain government records for two years.

Open-government advocates say while there may be a small number of people who frequently make unnecessary requests, the bill is broad and subjective enough to potentially apply to some who make legitimate requests.

Hawai'i Pro-Democracy Initiative president Robin Loomis said initiative members haven't discussed the bill yet, but that she believes "it's dangerous to go down this path."

"Unless this bill is more narrowly restrictive, I think it could limit people's rights to open government," she said. "If they narrow it down perhaps it would be good, but why are they doing this? ... There may be a few people who are abusing the process but I can't imagine that there are tons of people doing this."

Office of Information Practices director Leslie Kondo, whose agency requested the bill, said currently agencies have no way to seek relief from people whose abuse affects the efficiency of their operations. He said the bill doesn't target the news media and estimated the measure could potentially affect two or three people and that any restriction would address the particular issue of abuse rather than a total ban on all requests.

"The bill is designed not to deny somebody access to get the records; it's a way to kind of balance the public's right to access government records and agency's ability to not only provide those records but also to do its job," Kondo said. "What this bill will allow us to do is fashion appropriate ways so the agency can respond to the request as well as get its work done."

For example, he said, if someone has been repeatedly requesting the same records, that person might be restricted on the number of requests over a certain period of time and the agency would not be required to respond for that time.

Hawai'i's open records law requires state and county agencies to make their records available to the public unless they fall under certain exceptions, such as records that, if revealed, would hinder a legitimate public function.

The state Office of Information Practices, an agency under the Lieutenant Governor's Office, is charged with issuing advisory opinions on the open records law and mediating disputes between the public and government agencies over release of government records.

The bill, introduced by several Democratic and Republican senators, is practically identical to a measure included in Gov. Linda Lingle's administrative package of proposals.

Under the bill, an agency would have to show the Office of Information Practices that a person has a pattern of abusing the records request process, and the person would be given a chance to respond.

The office would consider several factors, including whether the person has been making a "large quantity or broad scope of requests," splitting requests to avoid or minimize fees, repeatedly requesting information when the agency has already responded, requesting records for a reason other than obtaining access to the records, abandoning requests when there is a fee, or making requests "that only marginally promote the public interest."

If the office finds someone has met at least two of these factors, it may declare the person is a "vexatious requester" and place limits on the requester for two years.

Senate Judiciary and Hawaiian Affairs Committee Chairwoman Colleen Hanabusa, among the bill's introducers and the lead conference committee negotiator for the bill, said agencies and other government offices have had someone tie up their fax machines with hundreds of pages, preventing others from getting access.

Hanabusa, D-21st (Nanakuli, Makaha), said the conference committee is exploring whether a "vexatious requester" can appeal to the courts.

Kondo acknowledged the bill is subjective but, "there needs to be just some trust that the person who sits here is going to analyze and weigh all the facts and use the statute in a way that it's intended to be used and not to deny access."

But it could still apply to people who are the most interested in government accountability and government performance, said Beverly Keever, a University of Hawai'i journalism professor. "It's a very subjective thing, and I don't think it's worth worrying about if the agencies perform as they're supposed to be doing and many of them are not.

"I think it's frivolous on the part of the Legislature to get so involved. And it's frivolous on the part of OIP to push this when their fundamental purpose is spelled out to provide access and to protect citizens' rights. ... This is a bill that's written for the bureaucrats, not written for the citizens."

Reach Lynda Arakawa at larakawa@honoluluadvertiser.com or at 525-8070.