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The Honolulu Advertiser
Posted on: Sunday, March 12, 2006

Hawai'i among worst in access to documents

Poll: Do you feel you have more or less access to
state and county information today than 10 years ago?
Public information resources
 •  Your right to know is being eroded

By Rob Perez
Advertiser Staff Writer

Leslie Kondo, director of the state Office of Information Practices, questions a study that says Hawai'i's open-records system is among the nation's worst. "We have a system that works well," he says.

GREGORY YAMAMOTO | The Honolulu Advertiser

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VIEW PORTIONS OF THE STUDY

The University of Florida has evaluated more than 130 categories of the state’s laws and constitutional provisions dealing with open government and meetings. More than 40 of them are available on the school’s Citizen Access Project Web site at www.citizenaccess.org. More categories are to be added to the site as they get updated.

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Amid concerns that Hawai'i residents are losing ground in their access to government documents, a new study shows that the state's open-records system is among the worst in the nation.

"Hawai'i has not made it easy for citizens to get access to records," said Bill Chamberlin, director of the University of Florida's Marion Brechner Citizen Access Project, which evaluates open-government systems in the 50 states. "The procedures that are in place are not as citizen-sensitive as they could be."

Based on a review of Hawai'i's laws, constitutional provisions and appellate court decisions on open government, the university found Hawai'i ranked among the 10 worst states in the country, survey officials said.

The gloomy assessment comes as open-government advocates locally and nationally kick off Sunshine Week today, drawing attention to policies that are designed to make government more accountable to its citizens.

In Hawai'i, information laws and provisions are weak in a variety of areas, including in state constitutional guarantees to access and the ability of residents to get various types of records on the Internet, according to the survey.

Hawai'i and eight other states, for instance, received the third-worst score in the category of constitutional provisions. On the plus side, the state ranked near the top in areas such as designation of computer records and government worker e-mails as public records, and the degree to which the executive branch of state government is subject to the public records law.

Leslie Kondo, director of the state's Office of Information Practices, which oversees compliance with the open-government law, questioned the notion that Hawai'i is one of the worst states when it comes to opening records.

"From my perspective, that's very misleading," he said. "We're not nearly as bad as what's reflected in the survey."

When people request information, the vast majority of them get it, assuming they're entitled to the information, Kondo said. Sometimes, the requesters need the Office of Information Practices' intervention.

"From a practical standpoint, we have a system that works well. ... When you ask for records, for the most part, you get the records," Kondo said.

LOSING GROUND

The people who have done the asking give mixed opinions on how well Hawai'i's system has worked in recent years.

Kaua'i resident Walter Lewis, 81, believes citizens in his county have been losing ground.

"Access is becoming much more difficult than it should be," the retired lawyer said. "The county has been almost paranoiac about trying to avoid disclosure of its records."

Lewis and Raymond Chuan, also a Kaua'i retiree, were denied access to the County Council's executive sessions minutes from 2002 through 2004 even though the Office of Information Practices eventually determined the records were public and must be released.

The county at one point told the two they could get an unspecified portion of the records but only if they paid about $2,800 to cover the cost of searching, editing and copying. The county wouldn't identify the type of documents they would get, Lewis said, so they balked at paying.

In December, the pair sued the county, saying it violated the state open-records law called the Uniform Information Practices Act. The suit is one of several pending in which plaintiffs are seeking executive session minutes from the Kaua'i government.

The county has denied wrongdoing and, in turn, has sued the Office of Information Practices, asking the court to overturn the agency's order dealing with minutes from one meeting. That lawsuit also is pending.

Jeff Garland, an O'ahu community-television producer who has relied on the open records law many times to get documents, says access has improved slightly in recent years, despite setbacks in certain areas.

Garland said government agencies generally have become more aware of their obligations under the law a sentiment echoed by Kondo and others. More records also are available on the Internet.

"It's been baby steps," Garland said. "Two steps forward, one step back."

TREND 'VERY WORRISOME'

One of those steps backward, according to Garland, involves an issue that has far-reaching implications.

Access to government records has begun slowly eroding as Hawai'i's state and county agencies shift what traditionally have been government functions to private organizations, Garland and other open-government advocates say.

The public's ability to inspect documents has been curtailed in the wake of a court decision last year that effectively narrowed the definition of what constitutes an agency under the state open- records law.

Although the decision so far has affected only an estimated five to 10 cases in which people were seeking records, open-government advocates fear access will diminish further as more public-private partnerships develop, resulting in documents being held by private or "hybrid" entities that may not be available to the public.

"It's a trend that's very worrisome," said Beverly Keever, a University of Hawai'i journalism professor.

A pending appeal before the Hawai'i Supreme Court is expected to determine whether the narrower definition will stick. Kondo's Office of Information Practices appealed the lower court decision in a case involving 'Olelo, a nonprofit corporation that operates the public-access cable TV channels on O'ahu on behalf of the state.

The appeal "will give a lot of direction to the public's right to get access to records that are held by these hybrid agencies that kind of look like, talk like, smell like state entities but aren't quite state entities," said Kondo.

The 'Olelo case went to court after the Office of Information Practices ruled that the nonprofit corporation was considered an agency for the purposes of open records law. The ruling was in response to a request from a community television producers group that included Garland.

The Office of Information Practices argued that because 'Olelo was so closely tied to the state and was performing a job traditionally done by government, it was subject to the Uniform Information Practices Act

But the Circuit Court sided with 'Olelo, saying it wasn't an agency under the law. Among the reasons cited was that the state had no day-to-day control of it.

Based on that ruling, the Office of Information Practices determined in roughly five to 10 pending cases that other hybrid organizations, such as the Hawai'i High School Athletic Association and Hawaiian Humane Society, were not covered by the open-records law, Kondo said.

If the lower court decision isn't overturned, people should be worried about the ramifications, said Sen. Les Ihara, D-9th (Kapahulu, Kaimuki, Palolo). "Without access," he asked, "how can you know whether these organizations are being accountable (with public funds)?"

INCREASING SECRECY

One way to improve accountability is for a government agency to specify in the contract that the private entity must comply with the open-records law, said Michael Overing, an adjunct professor of media law at the University of Southern California.

Sunshine Week starts also against a backdrop of increased government secrecy on the national front, often done in the name of national security.

Kondo says he doesn't see that same trend here, although the city after the Sept. 11 terrorist attacks cut off public access to building permits, citing security concerns. That policy has since been reversed, he said.

Access to records has further been curtailed through high processing charges, such as in the Kaua'i case involving Lewis and Chuan, open-government advocates say. Even worse, charges topping $10,000 or even $20,000 are not unheard of, they say.

But Kondo said he doesn't think the use of high fees to block access has been a problem. Sometimes high estimated charges result from broad requests and force the requester to narrow the scope, he said. "When it's used to prevent access, that's different."

Despite some shortcomings in the system, such as the lack of enforcement powers by the Office of Information Practices, Kondo said most people get the information they seek.

"To me, that's the figure that should be most important."

Reach Rob Perez at rperez@honoluluadvertiser.com.

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