By: Nathan Eagle; Civil Beat; June 11, 2018
Hawaii’s governor has broad influence over how accessible state government is to the public.
The state’s chief executive can set a strong policy on release of public information including controlling to a large extent the fees agencies charge to process public records requests. The governor appoints the head of the state’s public information office and must approve any rules set by that agency.
Civil Beat asked the top gubernatorial candidates from the Democrat and Republican parties to talk about several issues relating to government transparency that have recently been at the center of public attention.
Democratic Gov. David Ige sat down with Civil Beat for a 30-minute phone interview. He talked at length about his views, what he has done as governor to improve transparency and his concerns about contentious issues.
Democratic U.S. Rep Colleen Hanabusa wasn’t available for a formal interview. But she did speak with Civil Beat for a few minutes when a reporter approached her after a public appearance.
Republican contender John Carroll, a former state lawmaker who has run for governor in the past, talked with Civil Beat for an hour in an interview at his office.
GOP candidate Ray L’Heureux, a former state Department of Education assistant superintendent who recently entered the race, was traveling with his family in Europe but called back during a layover in the Seattle airport. He spent about 30 minutes on the phone.
State Rep. Andria Tupola did not return repeated phone calls and emails left with her legislative office and campaign staff over the past two weeks requesting an interview.
The Key Issues
Public records: In Hawaii, it’s often time-consuming and expensive to access public information kept by state and county agencies — whether that’s police misconduct files, rockfall risk studies, care facility inspection reports, politicians’ travel records or correspondence about development projects.
And it’s often a challenge to get help from the Office of Information Practices. The time it takes OIP to resolve complaints has quadrupled in recent years, the backlog of cases is trending upward and there’s an average delay of two to three years for OIP to issue a formal opinion in complex cases, according to a February report by The Civil Beat Law Center for the Public Interest.
OIP, which administers the state’s open meetings and public records law, set rules in 1998 that allow agencies to charge $2.50 per 15 minutes of search time and $5 per 15 minutes of review and segregation — plus copying costs.
OIP drafted new rules in September that would triple the fees while adding a new provision that would let an agency charge $7.50 per 15 minutes to supervise someone who wants to review a record at an agency’s office, though the first two hours would be free.
It cost state agencies in fiscal 2017, which ended June 30, about $164,000 to respond to records requests. The agencies were able to charge about $110,000 for fees and costs allowed under OIP’s rules, and collected about $43,000 from the individuals requesting the information, according to OIP.
Financial disclosure: The Legislature last session nearly passed Senate Bill 2609 that would have put off limits much of the publicly available information that’s used to identify potential conflicts of interest for members of key state boards and commissions. It’s a measure that could likely end up on the governor’s desk in the coming years.
The law, which passed the Senate unanimously in 2014, added 15 boards to the list of those whose members must disclose their financial interests publicly, including the University of Hawaii Board of Regents, Public Utilities Commission and Hawaii Community Development Authority.
The disclosure forms, which are submitted to the state Ethics Commission, show broad salary ranges for the filer and their spouse, property and business interests, memberships to other boards and stock holdings. The purpose of the disclosure is to reveal any potential conflicts of interest and boost the public’s faith in the governmental process.
Ige: Better Technology Will Improve Transparency
Frustrated with former Gov. Neil Abercrombie’s record on transparency, a group of 22 media outlets and open-government groups delivered a letter to Ige’s chief of staff, Mike McCartney, a few weeks after he took office in December 2014.
The letter asked Ige to speak out strongly in favor of government transparency in light of a rising public demand for openness and “increasing public suspicion of institutions that respond to scrutiny without comment or full disclosure.”
The groups — which included Civil Beat, TV stations, Hawaii Public Radio, online news outlets and nonprofits like Common Cause and League of Women Voters — sought three things: require state agencies to presume government documents are public and invoke exceptions to disclosure only if they must; mandate that each state agency post contact information for the public to easily find out how to submit records requests; and make requests in the public interest free or only charge copying costs.
Nearly three years later, in August 2017, Ige issued an executive memo that addressed the first two points, which some agencies followed. He also encouraged state agencies to “take practical actions to reduce the costs” of fulfilling records requests.
In a recent interview, Ige said the memo “took a little bit of time” to issue because he was focused early on with helping his Cabinet members understand the responsibilities in their departments, as many lacked state government experience. His goal has been to change the culture of state government, in part by bringing in experienced professionals from the private sector.
During his time in the state Senate, Ige said, it was easier to implement sweeping improvements in government transparency because the Legislature is a smaller branch and comparatively free of technological hurdles. The executive branch is huge, by contrast, and departments are not even on the same email or operating systems, he said.
In 2008, when Hanabusa was Senate president, she appointed Ige to be technology liaison for the chamber’s paperless initiative. He propelled the Senate into the 21st Century by getting bills, testimony and other legislative documents, including the budget, on the Capitol’s public website — something Ige said was “unheard of at that time.”
Both candidates take credit for the paperless initiative’s success.
Ige has endeavored to build upon it in the executive branch by instituting eSign technology to reduce paper and save time by enabling him and other state officials to sign documents electronically. He’s also worked to transform paper-based processes into electronic systems.
He said that boosts transparency by making it easier for departments to comply with records requests, noting that some agencies rely on older information systems that take longer to find the public documents being sought.
This, in turn, would also reduce the search-and-segregation fees charged for records requests, he said.
Ige said he is letting the OIP proposal to increase fees go through a review process with the Attorney General’s office before deciding if he should approve the rules, make changes or reject them.
Charging fees for public records is not ideal, he said, but there needs to be some mechanism to recover at least some of the costs of fulfilling information requests.
“It’s not something that we want to have to do but we do get increasing requests for information.” — Gov. David Ige
“It’s not something that we want to have to do but we do get increasing requests for information,” he said. “It has been a challenge, especially in agencies that have older information systems.”
Ige asked for salary increases for OIP this year, which the Legislature approved. He thinks the OIP director has done a good job managing the agency.
And as more agencies go paperless, he said, it will make responding to records requests much easier — no more printing documents, then redacting confidential information and scanning it back into the system.
“That’s the longterm goal — getting all the agencies to think about access to public information from ground zero,” Ige said. “And as we change and modernize processes then we should approach it with the perspective of how can we improve transparency, how can we improve public access to public information, because I do believe that government benefits from that and the public benefits from increased transparency.”
When it comes to financial disclosures, Ige’s experience as governor in finding people to fill seats on numerous state boards and commissions has caused him to rethink his position on a law he supported — and campaigned on — in 2014.
On the campaign trail four years ago, Ige criticized political rival Abercrombie for considering vetoing the bill. When the bill became law without Abercrombie’s signature, Ige heralded its passage.
“It does limit those who are willing to serve.” — Gov. David Ige
But he says he found out firsthand how hard it can be to find people to serve on state boards — many on a volunteer basis. Now, he says, it may be necessary to take another look at the law.
His administration did not put forward the measure, that lawmakers nearly passed last session, which would have redacted salary information but let the public see employer and other affiliations.
“We didn’t propose any amendments,” Ige said. “But we do need to look at it and think about it. It does limit those who are willing to serve.”
He said several chief executive officers he approached to serve on state boards were interested until the financial disclosure issue came up.
Specifically, Ige said he has been working to transition the University of Hawaii to do more technology and entrepreneurship so he wanted people on the Board of Regents who could help foster that goal of moving beyond earth sciences and other subjects the school already does well.
“I don’t think they have anything to hide, per se, but they’re not going to disclose their financial information to do public service,” he said. “It does make it a little more complicated to find a broader experience and expertise when we’re looking at trying to transform the university in these areas.”
Ige said all that means is “it’s going to take a lot more work to find people willing to serve on boards and commissions.”
Hanabusa: Don’t Increase Fees
Hanabusa is on the same page as Ige when it comes to financial disclosures but differs when it comes to OIP and charging for public records.
In a short interview last week, she said the disclosure law has caused some problems in terms of people being willing to serve on boards and commissions.
She said there needs to be a distinction between what the public can know about the financial interests of appointed board members as opposed to information about elected officials like herself.
“Elected officials are fair game; we put ourselves out there,” Hanabusa said. “But for some people, I can understand they don’t want the public to be able to have access to their information.”
“And we have to find a way — and I’m sure there is a way — to balance that with the people’s right to know,” she said. “People want to know if there’s anybody benefitting from being on a board or commission — is there a financial benefit — and that’s a different question in terms of a disclosure.”
When it comes to OIP, Hanabusa said that while she has not reviewed the draft rules yet she would not support anything that makes it more difficult for the people to know what their government is doing.
“The public confidence is always lost when they view government as hiding something.” — Congresswoman Colleen Hanabusa
“The public confidence is always lost when they view government as hiding something,” she said.
Hanabusa scoffed at the notion of tripling fees for public records requests.
“Excuse me, I’m a Democrat, but it almost sounds like a Trump tactic,” she said. “It’d be a travesty to ask the average person to pay for all that time.”
The congresswoman said she understands charging for copying costs but does not agree the public should have to pay for the time an agency spends searching for the information and blacking out content it thinks should not be revealed.
“The only way that government is accountable is if government itself can be held accountable by the people. And the only way that people can hold it accountable is with knowledge,” she said.
“I think that anything that acts as a chilling effect on a person’s right to know or the right to ask those questions, we will all lose. Whether it’s media or just a citizen who wants to know, everyone must have access.”
Carroll: Make Public Records Free
Carroll, who served in the Legislature in the 1970s and early ’80s, said he is opposed to any increase in fees for public records.
“Absolutely not,” he said, adding that the government should have stopped charging for public records a long time ago.
Recouping copying costs is fine, he said, but not charging for the time it takes to find the records and redact them.
When it comes to financial disclosures, Carroll said the current law should not be watered down.
“If they’ve got something to hide then you shouldn’t want them anyways,” he said.
Tupola: Boards Must Disclose Financial Ties
Tupola could not be reached for comment for this story despite repeated attempts and multiple messages left with her office over the past few weeks.
A review of her previous public statements on the issue shows Tupola made government transparency a major focus this past legislative session, in her role as House minority leader.
She and her four Republican colleagues denounced Senate Bill 2609, the financial disclosure roll back, as the “most unethical bill of the session.”
“The reason this body is putting forth this measure is to try to encourage more participation on voluntary boards,” Tupola said in a statement in April as the measure was headed toward passage.
“However, none of us have seen any research studies showing us that there is a direct nexus between us not disclosing dollar amounts and suddenly people signing up to be on boards and commissions,” she said.
Tupola voted against the measure, which cleared the House but died when the two chambers couldn’t agree on a final version.
In response to a 2016 candidate questionnaire from Civil Beat, Tupola said she would support eliminating Hawaii’s high fees for access to public records when the request is in the public interest.
L’Heureux: More Transparency Needed
Recalling his experience with the Department of Education, L’Heureux said if a government agency doesn’t want to provide certain information it will just “slow roll you all day long.”
In general, he said public records should be free and easily accessible online.
For complex requests, he said he could understand recouping the cost of making copies and the time for searching and redacting certain information. But he said OIP’s plan to triple the fees is excessive.
“It’s punitive to the person that’s seeking the information, whether it’s someone from the media or a private person,” L’Heureux said.
He said the high fees that state agencies charge records requesters are a stall tactic more than anything else.
“It’s just the culture of all the state agencies to hold things as close to their vest as possible,” L’Heureux said.
With financial disclosures, he said it makes sense for board and commission members to make that information public as they currently do.
“I think it’s essential,” he said, noting that the boards serve public interests and weeding out any potential conflicts is critical.
Other candidates for governor who were not included in this story are Ernest Caravalho, Wendell Ka’ehu’ae’a, Richard Kim and Van Tanabe, who are also running in the Democratic primary. James Brewer is running in the Green Party primary. The three nonpartisan candidates are Selina Blackwell, Eric Link and Terrence Teruya. Civil Beat will publish the candidates’ responses to questionnaires on this issue and others as they come in.