Public Records Are Our Records

Please Support S.B. 3252 by asking the leaders of the Legislature to override any veto and telling Governor Ige not to veto it.

Specific suggestions for comments at the bottom.

State and county government touches our lives in a wide variety of ways. Whether you are interested in the environment, policing, Native Hawaiian rights, education, fiscal responsibility, or something else, public records are critical to understanding what is going on. The light of that public scrutiny leads to better government decisions.

But many government records remain hidden from the public—not because the records are confidential, but because agencies use excessive fees to keep organizations from obtaining and publishing the records.  We need to make it easier for nonprofits and news media to keep our community informed.  This year, the Legislature passed S.B. 3252 to reaffirm its intent to waive fees for public interest requests.  If it becomes law, S.B. 3252 will allow nonprofits and news media to investigate community concerns, better understand what agencies are doing about those concerns, and keep the general public more informed.

There are countless examples of public interest requests.  The Sierra Club wanted more information about Red Hill from the Department of Health.  Kilakila O Haleakala wanted to know more about efforts by the University of Hawaii to politically influence a hearing related to a telescope on Haleakala.  Center for Food Safety wanted more information from the Department of Agriculture about testing at GMO agricultural fields.  The Education Institute of Hawaii wanted more information about Department of Education finances.  The Grassroot Institute of Hawaii wanted more information about alternatives that the Honolulu Authority for Rapid Transportation considered after a funding shortfall.  

The Honolulu Star-Advertiser wanted more information about the abuse of revocable permits for State land by the Department of Land and Natural Resources.  KITV wanted more information from the City & County of Honolulu regarding the City’s study of rockfall hazards across the island.  Civil Beat wanted more information about use of force in prisons and police departments.  Hawaii News Now wanted more information from the Department of the Attorney General regarding efforts to collect millions in overpayments to State employees.

The Legislature never intended for agencies to be able to use fees to block organizations from getting records when disclosure of those records serves the public interest.  For decades the law has stated that fees must be waived for public interest requests, but agencies have refused to waive fees, giving only a $60 discount while wildly estimating that hundreds or thousands of dollars must be paid after the discount.

Requiring payment of unreasonable fees is an easy way for officials to cover up problems at government agencies.  Nonprofit organizations and news media cannot afford to pay inflated agency estimates for public records, and, despite serious concerns about what government agencies are doing, every year organizations abandon requests because it will cost too much to investigate further.

The House’s Commission to Improve Standards of Conduct recommended this bill, and it is easy to see why.  Over the last several years, Hawaii has struggled with a variety of scandals involving officials at every level of government.  More transparency—at a minimum—will help restore public trust and confidence in government.  Across all sectors of government, this bill will empower the community to shine a light on government officials and make it harder for the corruption, incompetence, and inefficiency that thrives in the shadows.

Unsurprisingly, agencies oppose the bill as the agencies would rather keep the public in the dark.  Many agencies claim—without any data—that the bill will be too expensive. The data says otherwise.  Years of information about public record requests in Hawaii shows that organizations making public interests requests are a small fraction of all the requests made statewide—roughly 5% of requests each year.  Fulfilling these requests will not overwhelm agencies.  In the end, there will be some cost to government resources, but it is more than offset by the significant public benefit of true government accountability and a better informed citizenry.

Governor Ige has strongly supported transparency and accountability initiatives in the past.  But he also has been led astray before by unfounded agency assertions—later proved incorrect—that certain actions will be too hard on the agencies.  That is why it is important for him to hear from you.

On June 27, Governor Ige stated his intent to veto S.B. 3252. In his press conference, he claimed that agencies would be overwhelmed by public record requests because everyone would ask for the public interest waiver and make vague requests that the agencies would not be able to fulfill (he used the example of a request for all documents about clean water). Here are highlights of why the Governor’s claims are wrong.

• Years of government data shows that public interest requests are a small fraction of requests and will not overwhelm agencies.
• Not everyone can ask for a public interest waiver. S.B. 3252 adopts a standard used in federal law for over 40 years that severely limits who qualifies for the waiver.
• Agencies are not required to respond to vague requests. A requester must provide a “reasonable description of the requested record”–meaning an agency employee can “locate the record with a reasonable amount of effort.” A vague request for everything about clean water is not a “reasonable description” of a requested record.
• Agencies will never be overwhelmed by records requests because an agency can prioritize other required duties over responding to records requests. An agency is permitted to stagger disclosure of records to “avoid an unreasonable interference with its other statutory duties and functions.”

Government agencies fear public scrutiny and thus oppose S.B. 3252. Unfortunately, Governor Ige is listening to the agencies’ speculation–which is directly contradicted by all available law and data. When he did the same thing (listened uncritically to agency fears) at the beginning of the COVID pandemic, Governor Ige threw out the public records law, resulting in universal national ridicule across the country because no other governor showed such little regard for the public’s right to know what is happening during an emergency. And the data ultimately showed that the agency fears were unwarranted.

The Legislature is considering now whether to hold a special session to override any possible vetoes by the Governor. And the Governor will make his final veto decision by July 12. Outreach to both the Legislature and the Governor can make a difference on this bill.

How to Contact the Legislature and the Governor

E-mail House Speaker Scott Saiki (repsaiki@Capitol.hawaii.gov), Senate President Ron Kouchi (senkouchi@capitol.hawaii.gov), and your local legislators to hold a special session and override any veto of S.B. 3252 by Governor Ige. Sample e-mail if you are pressed for time:

I support S.B. 3252. We need more accountability in government. If Governor Ige vetoes S.B. 3252, please include that bill in a special session. Our community needs public interest organizations that can investigate what our government is doing. When government officials believe that no one is watching, bribery, waste, and abuse of authority flourish. S.B. 3252 opens the door to necessary public scrutiny and education that will deter government corruption. The cost of this bill is well worth the substantial benefit of a community that actually knows what is happening.

Governor Ige is accepting comments on legislation at https://governor.hawaii.gov/contact-us/comments-on-legislation/.  Be sure to enter the bill number (as shown in the screenshot).  

If you are a nonprofit or news media organization, emphasize how important public records are to your organization.  If you are a member of the public, emphasize how much you rely on nonprofit and news media organizations to help you understand what is going on in government agencies.

If you are pressed for time, simply tell Governor Ige:

I support S.B. 3252.  We need more accountability in government. This bill allows nonprofit and news media organizations to keep us informed about what government agencies are doing. The cost of this bill is well worth the substantial benefit of a community that actually knows what is happening.

Read the Law Center’s original comments to the Governor.