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The Honolulu Advertiser
Posted on: Tuesday, March 14, 2006

Record seekers find process frustrating

Poll: Do you feel you have more or less access to
state and county information today than 10 years ago?
Public information resources
 •  Bill would create task force on sunshine law
 •  Hawai'i among worst in access to documents

By Rick Daysog
Advertiser Staff Writer

Caroline Kong has been battling the Department of Education for five months to get her daughter's full school records.

BRUCE ASATO | The Honolulu Advertiser

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LEARN MORE

The state Office of Information Practices will hold a free workshop on Hawai'i's open records and open meetings laws on Thursday.

The workshop, noon and 1:30 p.m. at the state Capitol, Room 414, will provide a general overview of the public's right to obtain records and attend meetings and will provide practical information on how to use the laws.

For further information, contact the Office of Information Practices at 586-1400.

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GETTING HELP

Here are some helpful local contacts for information on accessing public records:

The Office of Information Practices, No. 1 Capitol District Building, 250 Hotel St., Room 107, Honolulu, HI 96813, Phone: 586-1400, Fax: 586-1412, e-mail: oip@hawaii.com

Open Government Coalition of Hawaii, 3054 Ala Poha Place #806, Honolulu, HI 96818.

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Carl Foytik

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TIPS ON ASKING FOR INFORMATION

For the private citizen, requesting public records from a government agency can be a time-consuming, if not intimidating, process. But open-government advocates say that record seekers can avoid a lot of grief by following these simple tips:

• Put your request in writing. Although it’s not required, it’s helpful because it provides a record of your request, said Les Kondo, director of the state Office of Information Practices.

It also forces the government agency to respond to your request in writing, which in turn, will provide you with the agency’s rationale if the request is denied.

Kondo said the OIP’s Web site at www.hawaii.gov/oip includes a form for requesting government documents.

• Be specific. A government agency likely will respond quicker to a narrow request for records, especially if the records are readily available, Kondo said. On the other hand, agency staffers are more likely to view a broad request as "a humbug" and treat it as a low priority.

A narrow request also could mean fewer fees since the agency doesn’t have to spend much labor tracking down the records.

• Check with the right office. An agency will tell you that it doesn’t have a document but it might not tell you that the document is in a sister office in the same department. This often results in multiple delays and increased fees, said Carroll Cox, president of EnviroWatch, a nonprofit government watchdog.

Kondo believes it’s a good idea to send a request to a department director’s office so that it can be forwarded to the appropriate office.

He also recommended using the OIP’s Records Report System, which is a database listing the types of public records maintained by state and city agencies. The database, available at www.hawaii.gov/oip/rrs, does not include actual records but provides an index of the documents and describes the form in which they are stored. It also gives the name of the official who maintains the records.

• Search the Internet. During the past decade, the state and counties have placed many public records online. These include property records, business registrations, permit and licensing information and other data.

• Know the law. The open-records law spells out which records have to be turned over, which ones are exempt and how long a department has to respond to a request. Copies of the law can be found at the OIP’s Web site.

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When Caroline Kong asked for her 9-year-old daughter's complete school records last year, she expected some resistance from the state Department of Education but didn't figure she'd wind up in a five-month battle.

The Kaimuki resident, whose daughter is a special education student, said department officials initially turned over a portion of the documents but withheld other information, including e-mails and notes between the school and the DOE's service providers.

In December, Kong sought the assistance of the Office of Information Practices, which administers the state's public records and open meetings laws. Last Tuesday, the OIP ruled that Kong is entitled to the records.

"It seems to be their standard operating procedure to talk around your question, stall you, wear you out and hope you give up," Kong said of school officials. "It's very frustrating."

DOE spokesman Greg Knudsen declined comment on the specifics of Kong's case. Under federal law and the state's open records law, parents are supposed to have access to their children's records, including e-mails and notes, Knudsen said, but he couldn't explain why Kong encountered trouble getting her daughter's records.

Kong is one of hundreds of local residents who find themselves at odds each year with state and county agencies over access to government records.

Despite increased efforts by the Office of Information Practices to enforce Hawai'i's public records and open meetings laws, open government advocates say that members of the community face an uphill battle when seeking government information.

Too often, they say, county or state government workers don't understand the public records law or aren't trained to handle requests from citizens. Other times agencies are too slow to act on information requests or charge excessive fees to provide those records, the advocates say.

Several believe the Office of Information Practices lacks the enforcement powers to compel state and city agencies to follow the law.

FEES STAND IN WAY

Enacted in 1989, Hawai'i's public-records law generally requires a state agency to release public records, with exceptions provided for disciplinary proceedings, records protected by law or court order and personal information such as Social Security numbers and medical records.

But despite the law's stated intent to conduct government as openly as possible, even such seasoned Hawai'i public records researchers as Carl Foytik say they face difficulties getting information.

The Makiki resident figures he's made scores of requests for government documents from state and city officials over the past decade. Foytik estimated that a quarter of his requests were denied with little rationale, forcing him to seek the assistance of the Office of Information Practices.

About five years ago, Foytik asked the state Department of Human Services if he could inspect records on decisions by the department's Administrative Appeals Office denying welfare payments to people with disabilities.

The department told him some of the records contained personal information that would have to be removed and he would have to pay $1,397 to cover the cost of doing that, Foytik said.

Foytik said he made his request on behalf of a disabled Makiki woman, who could not afford the expense because the state planned to eliminate her $250 monthly welfare benefits.

The Office of Information Practices eventually ruled the state should be responsible for the cost of removing the personal material because it was the department's decision to incorporate the information in its rulings.

Foytik said the woman's welfare benefits were restored after they were able to show that the state relied on a flawed recommendation by a private psychiatrist.

DHS spokesman Derick Dahilig said department officials are prohibited from commenting on specific welfare cases.

SLOW TO COMPLY

Hilo, Hawai'i, resident Claudia Rohr believes she's a victim of government stall tactics.

In August, Rohr asked the state Health Department's Clean Water Branch for a copy of its report on toxic substances in a stream near the Big Island's Pepe'ekeo Point. Rohr said health officials denied her request for the report, saying they didn't want to compromise a pending investigation.

That prompted her to file a complaint with the Office of Information Practices, which was set to rule in her favor in October, Rohr said. A day before the OIP's ruling, the Health Department agreed to provide her with copies of its report, she said.

Rohr said she first alerted state and federal officials about a problem with the stream several years ago when she noticed it had a reddish color. Rohr, a real-estate agent who brokered the sale of nearby land in 2003, said she knew the property included a coal ash stockpile, which had been left by former owner, Hilo Coast Power Co.

"They delayed in giving me the records for several months and in the end gave it to me to avoid a negative ruling by the OIP," she said. "They just stalled me."

Denis Lau, chief of the Health Department's Clean Water Branch, said the department didn't give Rohr the records immediately because it was considering enforcement actions against the landowner. He said the state attorney general's office had advised his department that the release of the records could frustrate the government's function, which is one of the exemptions to the state's open records law.

Lau said the department later gave the records to Rohr after further investigation found no evidence of toxic materials at the property.

Rohr's experience is not unusual.

Carroll Cox, president of EnviroWatch Inc., a nonprofit government watchdog group, said it can take up to a year to get information he requests. That's because some departments keep shoddy records or lack training on Hawai'i's open records law, Cox said.

About a year ago, Cox said he asked the city Department of Planning and Permitting for public access records covering the Ko Olina boat ramp. After the department turned over some records, Cox said he found out from an office insider that the department didn't give him nine files.

The missing files, which eventually were turned over, contained complaints from people who had been denied access to the Ko Olina shoreline, Cox said.

"The problem is when you go to get the records at a state or city department, each of its divisions has its own interpretation on what is public," Cox said.

David Tanoue, the planning department's deputy director, denied any effort to conceal information. Tanoue said many of the files requested by Cox were more than 15 years old, which took time to locate.

Reach Rick Daysog at rdaysog@honoluluadvertiser.com.