Poinography!

July 22, 2010

My UIPA saga – a $1582.15, twelve month struggle

Filed under: Hawaii Media,Hawaii State Politics — Doug @ 7:43 pm

Back in June, 2009, I wrote a post inspired by comments made by Governor Lingle alleging that the Legislature works in secrecy. As a former legislative staffer, I knew that the public can learn far more about what happens to legislation while it is under consideration at the Lege than is possible once the bills go to the Governor for consideration (i.e. approval or veto).

To illustrate the extent of that contrast, on June 28, 2009, I promptly sent the Governor a UIPA request for records, thinking I might get the records in time to analyze how she came to approve or veto those bills. Boy, was I wrong…

Make yourself comfortable, this is a very long post.

My UIPA request was pretty succinct:

I hereby respectfully request from your office (in digital or analog form, as appropriate) all records, memoranda, telephone messages, staff meeting materials, office visitors, incoming communication and outgoing communication concerning bills passed during the 2009 Regular Legislative Session. I write a blog about Hawaii politics called Poinography.

A UIPA request is to get a reply within ten days. Didn’t happen. So, on July 11, 2009, I rattled the Governor’s cage about it. Russell Pang responded on July 29, 2009, denying my request and claiming Executive Privilege.

I responded immediately:

Mr. Pang,

Mahalo for the (long overdue) response to my UIPA request. I will carefully review the response and consider my options. Clearly the response is incongruent with the Governor’s assurance that the public should “see and understand the basis for her [bill approval or veto] decisions.” I assume that you have read my June 28, 2009, blog post on this topic before drafting this response. If not, perhaps you should have.

The Governor’s hypocrisy is undeniable and will be duly noted. “What happened? How come?” indeed.

For now, I believe I am entitled to a so-called “privilege log” describing the records you are withholding from me, so consider this my request for such a log.

The next day, I thought I had better alert the Office of Information Practices that this could get messy. I wrote to the OIP:

I am trying to obtain records from the Governor’s office pertaining to bills that passed the 2009 legislature. The response they sent to me yesterday cites Executive Privilege and HRS 92F-13(3) in denying me all of the records I am seeking.

The applicability of a 92F-13(3) exemption from disclosure is arguable. The governor’s office asserts (without comment) to the contrary, but I believe that there is no necessity for all of the records I seek to remain confidential to carry out the “legitimate government function” of approval or disapproval of legislation passed by the legislature.

Continuing on the 92F-13(3) theme, in the UIPA Manual available on your website there is discussion of a “deliberative process privilege,” which I interpret to mean that inter- and intra-agency records may be withheld from me. However, I do not believe this privilege would be applied to records sent to and/or received from entities outside government. Is that an accurate assessment of the deliberative process privilege? i.e. Should there be a presumption that all non- inter- and intra-agency records should be made public?

The case law cited in their denial of my request seems to focus only on “calendars” of government officials. Oddly enough, the Vermont case they cite in denying my request found that some information on the governor’s calendar is public and is not protected by Executive Privilege. Go figure.

Finally, has there been any OIP opinion that specifically addresses (or even mentions) “executive privilege?” For that matter, (where) is the executive privilege contained in the HRS?

Unlike the Governor’s office, the OIP responded in a much more timely manner, on July 31, 2009:

I am attaching an informal opinion that addresses the questions you raise in your email dated July 30, 2009 to this office. As you will note in that letter at footnote 3 and the accompanying text, OIP has not yet had reason to specifically address a “gubernatorial executive privilege” like that adopted in a few states, which is based upon the presidential executive privilege that provides broader protection to the executive’s communications. There is no specific provision in the HRS that discusses the “executive privilege.”

Further, as discussed in that opinion, the deliberative process privilege generally protects intra-agency materials, but may also protect materials from outside the agency in those instances where they serve the same purpose as protected intra-agency materials.

If you believe you have been denied access to a record to which you are entitled, please feel free to file a written appeal of that denial to OIP. In your letter, please list the records you have been denied access to for which you wish to appeal. Please also provide OIP with a copy of your request to the Governor’s office, the response received, and any other information you believe is relevant to your appeal.

At that point I thought I was making progress. I responded to OIP on August 1, 2009:

Must the agency provide me a “privilege log” of records they intend to deny? I have asked for one.

If I appeal the decision, then will the OIP review the disputed records (as in the letter you attached) and rule on each record separately, judging, among other things, if portions could be redacted for release, or does the process permit a blanket ruling covering all the disputed records?

Would it have any bearing on this matter if the agency made numerous public statements on the theme of open government and positioned itself in contrast to another agency (the Legislature) that they characterized as being less open on the matters pertaining to the records I am seeking? Ironically, the Governor’s office responded that it is willing to provide me records maintained by the Legislature, which are already available on the internet, yet hopes to deny me its own records that concern the same legislation.

On August 7, 2009, I got this response from the OIP:

I apologize for no responding sooner. I came across your e-mail today and realized I had not yet responded. I will answer your questions in the order posed.

(1) Must the agency provide a privilege log? No. The UIPA does not require a privilege log. OIP’s administrative rules contain the requirements by which an agency must respond to a written request for a record. These rules are available on OIP’s website. When the agency is denying access to a record, the agency must designate the record (or information in the record) that is being withheld and specify the legal authority that allows the withholding. See Haw. Admin R. ยงยง 5-41-13; -14(b).

(2) If you appeal, will OIP review and rule on each record separately? If necessary to provide a determination, OIP may review and rule on each record separately. Note that in the letter sent to you that OIP was ask to review selected records from what was apparently thousands of pages of records. With respect to your request, we cannot answer that question definitively without knowing what records are involved.

(3) Would an agency’s public statement on the theme of open government have any bearing on this matter? No. OIP rules on appeals based upon whether an agency has justified withholding under the exceptions to disclosure provided by the State’s public records law, the Uniform Information Practices Act (Modified), chapter 92F, HRS.

All useful information, even if it wasn’t exactly what I wanted to hear. I mulled over my options and drafted an appeal letter to the OIP, which I sent on August 12, 2009.

The OIP sent an acknowledgment letter to me on August 18, 2009, and another to Barry Fukunaga of the Governor’s Office that same day. And then everything went quiet for a spell (this would become a trend…) until September 2, 2009, when the OIP told me that there would be a delay:

I received a call yesterday from the Deputy Attorney General that was charged with preparing the response for the Office of the Governor. During that call in which we discussed the substance of your request, I became aware of the fact that we had not provided the Governor’s office with the attachments to your August 12 letter to OIP. I informed him, based upon those attachments and my email exchanges with you, that I believed that you were primarily seeking correspondence received from third parties on legislation (rather than drafts of the legislation itself) and that your request had been narrowed in scope since the initial request as indicated in your August 12 letter. I resent him your August 12 letter with the attachments and also sent him copies of our email exchange (with your personal email address redacted). I asked him to review the materials and suggested that you be contacted if there are further questions as to what you are seeking.

I spoke again today with the Deputy AG. It is my understanding that the Governor’s office is working on responding to your request for the third party correspondence on legislation. I will send him a copy of this email and ask that a first installment of those letters be made within the next ten business days. In light of this anticipated disclosure, I suspended our request for a response. Please let me know how you wish to proceed. If you would like to seek clarification as to whether certain records will or will not be provided, please identify them specifically and I will seek the agency’s response.

Now I was getting frustrated, and it shows in the tone of my next few responses. On September 2, 2009, I sent two messages to OIP:

I am looking for more than just correspondence received. I am seeking “records” (incoming and outgoing) concerning approval or veto of legislation in the broadest sense (notes from meetings, phone logs, schedules, etc.), involving parties that are neither inter- or intra-agency. How will I know which records, if any, have been denied? A specific list of records the Governor intends to deny would be necessary.

You were correct in telling the Deputy AG that I am not seeking drafts of legislation. Such records are already publicly available at the Lege website.

and

I just sent you a message and then went to walk the dog and thought of some additional concerns…

How is it that the Deputy AG contacts you on day 10, and does so apparently without handing over any records as your letter directed them, and OIP has no problem with that? The attachments to my August 12 letter were items previously sent to (or generated by!) the Governor’s office. A failure to attach those documents does not materially change anything and should not give them another 10 days to stall, in my opinion.

If the agency now agrees to provide (some) records informally and voluntarily, then does that mean there will be no oversight, no guidance, and most importantly, no written opinion from the OIP as to which records may be properly withheld? In addition to the records I seek, with my appeal I am also hoping to get some sort of clarity from OIP as to what, if anything, “executive privilege” means in the context of UIPA. I suspect that the agency does not want ANY clarification (or limitation) on that point, and that the agency has proposed to voluntarily hand over (some) records to avoid that possibilty.

If it means that I will get no opinion by following the informal present course of action proposed by the agency, then I am inclined to request ALL the records (including the inter- and intra-agency), be denied again, and then appeal that denial so that OIP will review all the records and rule which records can be withheld and on what grounds. Thus, if there is to be no written opinion this time, let me know ASAP and I’ll start the ball rolling again with another record request.

The next day, September 3, 2009, the OIP sent a brief response:

I will send your email to the Office of the Governor and ask that they list all responsive records and provide justification for withholding those that will not be provided. For your information, I had indicated to the Deputy AG that will be responding that I would allow a 30 day extension to respond because I will be out of the office for most of September.

WHAT?! That really got me fired up. I responded immediately:

Are you the only person in OIP capable of handling these matters? I think I have waited enough. By what authority do you give a 30-day response deadline when the rest of the time it is always 10-days? Sheesh.

The OIP and the Deputy AG assigned to handle my request then exchanged letters explaining their respective points of view. The AG apparently thinking that I wanted to pick and choose records pertaining to certain legislation, and the OIP reiterating on my behalf the breadth of the request. However, this was only the beginning of a lengthy exchange of emails trying to hammer out the details. On September 14, 2009, I wrote:

Please also clarify with the Deputy AG that, contrary to Mr. Suzuki’s letter to the OIP dated September 10, 2009, I am not seeking records on every bill introduced in the 2009 regular session. I am seeking records only regarding the bills that PASSED the 2009 legislature. Furthermore, I am not seeking all records pertaining to those bills, but only those records generated and/or received between the time each of those particular bills passed the legislature and the time the Governor approved or vetoed that particular bill.

For example, the first bill on the list of legislation that passed the 2009 regular session, HB 28 CD1, passed the legislature on May 5, 2009 and the Governor approved the bill on June 12, 2009. In this example, the only records I am seeking from the Governor for HB 28 would be those generated or received between those two dates (inclusively). The same for every other bill that passed the 2009 legislature.

Then I heard nothing for few weeks. The OIP staff helping me was on vacation… Then came October 8, 2009, when I was told that she would be returning to work:

I hope you are returned to work, because I am eager to make some progress on my records request. Since my last substantive message (sent September 14), I have not heard anything from OIP, the Governor’s Office, or the AG. I believe I have adequately clarified which records I want. Now, I want access to the records, ASAP. They have had ample time to search and segregate, in my opinion.

If the Office of the Governor insists that I retrieve the records in person (which I would rather not do; I’d prefer they copy the records and deliver them to me on CD-ROM), then I am available on Monday, October 12, 2009.

The Office of the Governor (via the AG) tried to contact me on October 6, 2009, but I only found out because the OIP was cc:d that message. In the message, the AG explained that they would search and segregate the records in batches and that the first batch was ready for me to review. Also, Mr. Suzuki told me that I owed them $490(!) for the first batch, and he appended a privilege log of the inter- and intra-departmental records that were being withheld. I made arrangements to go to the AG’s office on Queen Street and review the first batch of records to see which of them I would have copied. This led to the next issue, which was the subject of an October 15, 2009, email to the Governor:

On Monday, October 12, 2009, Ms. Kinoshita of the AG’s office allowed me to review the first batch of records (associated with Acts 1 through 37 of the 2009 Regular Session) that had been searched and segregated pursuant to my UIPA request. I provided a list for Ms. Kinoshita of which non-privileged records I would like duplicated.

Upon further review, it is clear that many of the records I would like duplicated were provided to the Governor’s Office in response to a solicitation for comments sent by the Governor’s policy staff. However, I now realize that those solicitations sent by the Governor’s Policy Office are also non-privileged records that should have been provided to me pursuant to my original request (wherein I requested incoming AND outgoing records). Even if a particular solicitation for comments did not yield a response, the solicitation itself is a record that sheds light on the topic of how legislation was approved or vetoed.

Please ensure that these additional records are incorporated into the search and segregation process for all further batches of documents. Please repeat the search of the Act 1 through 37 records to provide all outgoing non-privileged records not previously disclosed.

I did not receive a timely response to that email, and in the interim I made another visit to review the next batch of documents. After that second batch showed no improvement with respect to the solicitations for comment, I decided to contact the OIP again on October 11, 2009:

What OIP rules apply to my current situation?

I assume you received the messages I sent to the Governor and OIP on October 15 and October 29, but to summarize: The Office of the Governor is (somewhat) complying with my records request. Ms. Kinoshita of the AG’s office is generating privilege logs and presenting me records in batches for my review. However, in reviewing the first batch I noticed the records presented to me (even when combined with those in the privilege log) do not represent all the records I requested. I pointed this out to the Governor and to Ms. Kinoshita, but the second batch of records did not include the missing items either. The Governor does not even acknowledge my concerns, and Deputy AG Suzuki has never responded to me personally (indeed, I don’t even know his email address to contact him directly, and the searching, segregating, and document review sessions are being ably handled by a non-Deputy staffer, Ms. Kinoshita). Do the “agency must respond in 10 days” rules apply now that the “search/segregate and provide records for my review” stage is begun? Must I initiate another formal request, be denied, appeal the denial, etc?

Do you know Mr. Suzuki’s email address, or must I communicate with him via the postal service? Sheesh. This is the only area where Ms. Kinoshita was reluctant to help me.

I realize that the Governor is currently in China, but the UIPA does not provide exceptions for travel to the timeliness requirements. Besides, surely the Governor does not fill UIPA requests personally nor must she (or should she) remain incommunicado for the duration of her travels. How shall I proceed? Can you intervene on my behalf?

The very next day, October 12, 2009, the OIP wrote:

I will contact the Governor’s office on your behalf to determine their position on the disclosure of the solicitation letters sent out by the Governor’s Policy Office. If they intend to withhold those letters, we can address that issue in an opinion.

Then… nothing. So, on December 5, 2009, I check with the OIP on the status:

Has there been any response from the Governor’s office to your contact? Have they agreed to disclose the records, or are you know drafting an opinion in response to a denial?

The OIP responds on December 8, 2009:

I have been told by a deputy attorney general that the Governor’s office has been unable to locate any solicitation letters sent out by the Governor’s Policy Office. They have been asked to double check their files. I have asked that the Governor’s office provide written confirmation to OIP that they maintain no such records. I will forward that to you upon our receipt.

I sent a quick response that same day:

FYI, so far, all the solicitations I have seen were sent by email from the policy office staff, so don’t let the AG simply tell you that they don’t have any hard copies. Their IT staff should be able to positively confirm what went out.

Which led to some understandable confusion at the OIP. The write on December 9, 2009:

Please clarify your comments sent. You have already been given access to solicitations sent from the Governor’s Policy Office that are in email form? If so, could you provide me a summary of what you have been given access to and explain what other solicitations you are seeking?

I responded the same day:

Some of the records already provided for my review are responses to solicitations sent by the policy office seeking comments from non-agency sources . (I know this because the text of the original email solicitation is sometimes reproduced and/or referred to within these responses.) However, it is highly unlikely that EVERY solicitation sent by the policy office led to a response, and I am requesting a COMPLETE account of who was solicited or otherwise contacted by the policy office—including, but not limited to, records pertaining to communication that went without a response.

The implications of this “who was invited to the game” question should be obvious. It may even be more enlightening than the “who said what about the legislation” question.

Then… nothing. So, on December 20, 2009, I write to the OIP:

Anything to report on this yet? Do you need any more information from me? Is the Governor’s policy office actively resisting, or are they just passively dragging this process out? I have not heard, nor am I able to think of, any basis to argue for the records to be denied.

I fear that the whole process is slowing to a halt after my request had finally begun to yield non-trivial records. By now I’ve invested six months of my time and paid nearly $1000 in fees. I would like to wrap this up or, at the very least, keep the project moving!

The OIP responds on December 21, 2009:

I have spoken with the AG’s office a few times since your last email. It is my understanding that the Governor’s office has double or triple checked and that the emails that you have seen are the only ones that are maintained by the office. Copies of emails sent out were apparently not kept so the only emails they have copies are are the ones where a response was received by reply email. Those are the ones that you have been given access to. However, it is also my understanding that they have located a log of the emails sent and that they are in the process of segregating personal information of the individuals sent the emails prior to disclosing the log to you. They are apparently trying to get the log to you this week.

The did eventually provide me those logs, and they will be part of the scanning project. They are interesting. However, I should probably share this rather embarassing exchange that came next. I wrote back on December 21, 2009:

Hmmm. Not to put to fine a tip on it, but do you know anything about IT?

Unless they are running a completely amateur IT operation, their mail server(s) should have, at the very least, a log of every email sent and received (even if the actual messages are no longer stored). Furthermore, if they don’t “maintain” such a log and/or archive, then I would argue that they are routinely destroying government records in violation of the UIPA. Ask a geek if you don’t believe me…

Oops. That was not cool of me. The OIP responded the same day:

This responds to your non-gratuitous questions and remarks. Emails on the State mail server are routinely deleted after sixty days. Retention of emails, along with all other government records, is governed by HRS Chapter 94 Public Archives; Disposal of Records and the administrative rules of the Department of Accounting and General Services promulgated pursuant to that chapter. It is not governed by the UIPA.

Furthermore, you did not request the IT log. It is my understanding, which I believe I conveyed to the Governor’s office, that in the absence of copies of all the solicitations sent out, that you wanted to know to whom solicitations were sent for each bill. The records they found and are apparently disclosing to you is a specific log of the persons to whom solicitations were sent for each bill.

My bad. But still, I had a problem with this. I responded on December 22, 2009:

I am duly scolded and I apologize. Would it be pointless to request the IT log at this point (i.e. now that they have drug this out for well past 60 days)?

and then again:

I am glad to hear that they will provide me a log of everyone that received a solicitation for comment—hopefully it will disclose more than what I had already seen. Until I see it, though, I must withhold judgement on that.

I believe I differ with you on one key point, however.

When I made my original request in June, I specifically asked for ALL RECORDS pertaining to the legislation that passed the 2009 legislature. Are you saying that to prevent the destruction of the IT log, or the destruction of any other record pertaining to my request, that I must specify what entails “all records,” i.e. to specifically include the IT log files?

If the State’s IT people routinely delete the log files after 60 days, then I (reluctantly) agree that IT logs created before April may have been legitimately excluded. However, once I had made my UIPA request for “all records” did not (or should not) the UIPA have trumped the admin rules and the provisions of HRS 94 that allowed for the destruction of IT logs after only 60 days? i.e. There should be log files available for my review covering from April through the date of my request.

If the initiation of an all-encompassing records request like mine does not trigger some sort of freeze on the routine destruction of records, then it is clear why an agency would be so slow to respond to a request…

Sidenote: I actually met with Senator Ihara to get a bill introduced in 2010 to address that routine destruction issue. It went nowhere. Bummer. The OIP did respond, though, on December 29, 2009:

We advise agencies that, for purposes of complying with the UIPA, the agency should not destroy a requested record that may be required to be made available for public inspection by OIP or the court. See OIP Op. Ltr. No. 92-13 at 6 n.1.

I have called the Department of Accounting and General Services, Information and Communication Services Division, to ask about the accessibility of email “logs.” I was informed that they have report delivery information which would show sender and recipient by server. However, pursuant to their followed retention schedule, these logs only remain on the server for 3 weeks and then on a back up system for 1 month. After that period of time, the information is deleted.

Before that response, though, I heard from the woman at the AG office who had been doing the searching and segregation work and writing the privilege logs—she was retiring! Ha. Of course… leaving me with no warm body to deal with directly at the AG office. So, I had to rattle the cages again, on January 7, 2010(!), I sent an email to Mr. Suzuki:

Since your staff would not tell me your email address without your approval(?), and since no email addresses are listed on the AG website, and since nobody ever responded when I used the web-based contact form trying to reach you, and since you never called back on December 31st as we had arranged, I took the liberty of looking up your email address at the HSBA website. Should it really be that difficult to contact a Deputy AG by email? Welcome to the 21st Century…

Anyway, rather than continue to play phone tag (I am incommunicado during almost all of your business hours and I have had no luck getting a substantive response via voicemail), please respond via email to my (hopefully straightrforward) questions:

1. When will the last privilege log created by Ms. Kinoshita be ready for delivery? Before she retired last year, she said that you would need to review it first.

2. When may I come and review the final batch of records that were segregated by Ms. Kinoshita? Or, assuming that you will continue to not be personally involved with that process, who shall I contact to arrange this? Ms. Kinoshita said that she had handed the work off to your assistant, but did not name your assistant.

Mr. Suzuki responded on January 9:

Sorry for not getting back to you sooner but I had meetings on Thursday afternoon and yesterday was a furlough day. I’m in the office today but the office is closed. I am sorry but because of the cutbacks in our office, we will not be able to respond to you as quickly as you would like. I will email you when I have completed review of the documents so that you can do your review. We cannot fill Ms. Kinoshita’s position and have already lost two other positions because of cutbacks. I ask for your understanding.

I must have overlooked that section of the UIPA where the “we’re too busy” exemption is created?

I respond that same day, January 9, 2010:

I see, but I also ask for you to remember that I’ve been waiting since JUNE and normally UIPA requests are allowed ten days…

Please contact me when we can proceed.

Then, again, on January 20, 2010:

Patience has its limits. When?

I get another “dog at my homework” excuse, then a substantive response on January 26, 2010:

Mr. White, the charge for the review and segregation of the second, and final, phase of your document request is as follows:

Darlene Kinoshita’s time for processing second phase of request for records review: 27 hours @ $5.00 per 15 minutes = $540.

Russell Suzuki’s time for review and preparing documents for review: 2 hours @ $5.00 per 15 minutes = $40.

Total assessment: $580.

Hooray. But I wanted to be sure this was truly everything I requested, so I responded on January 26, 2010:

Ouch! That’s the highest fee yet.

Before I continue, does this final batch of records (and corresponding privilege log) include all the bills that were vetoed?

i.e. Does this batch include all these measures:
http://www.capitol.hawaii.gov/session2009/lists/RptVeto.aspx

As I recall, (correct me if I am wrong) the logs and records I have seen so far have been organized by Act number. However, those bills which were vetoed would probably not be in that type of sequence—except (maybe) for a handful of vetoes overridden before the regular session adjurned. Before I pay the fee and make a trip in to review records, I want to be sure that this batch truly fulfills my request in its entirety.

The next day I get an ominous response:

I will check with the Governor’s office once again to inquire whether there are records in that category, i.e., bills that were vetoed and not overridden by the legislature. Your request is for all acts enacted by the 2009 legislature and bills that were vetoed and not overridden are not acts and therefore would not fit within your request as we understood it. Nevertheless, I have relayed your request and will get back to you.

Sigh. That was NOT my request. So, I responded, and rather pointedly:

No, actually, that was not my request.

My request was for all records held by the Governor’s office pertaining to bills that passed the 2009 legislature. Bills that passed the legislature is a more expansive set than bills that became acts. I can dig out the email archive of my request, if you insist.

Also, no need to check with the Governor’s office about records in the category of vetoed bills that were not overturned. I assure you that there were and are such bills.

Finally, a quick response: The same day Suzuki says:

I’m not interested in debating about how each of us interpreted what your request intended. Hopefully now we are on the same page. Those bills that were vetoed and subsequently overridden were included in your request, have been reviewed, and included within your request.

So, another few weeks go by, so I check in with Mr. Suzuki again on February 9, 2010:

Tomorrow will mark two weeks, so I’m checking in again. Any estimate of when you’ll have all the records ready for my review?

I should have seen another excuse coming, and on February 11, 2010, Suzuki plays this card:

Sorry but the legislature has kept me and my staff occupied with matters requiring immediate attention. The good news is that I have been able to get Ms. Kinoshita to agree to come back from retirement to help me in processing the remaining documents for your review. She will begin next week and, hopefuly, after I discuss her schedule with her, I will be able to give you a date as to when you can expect to be able to review the docuements. I will try to get back to you later next week.

Finally, on February 25, 2010, I went to review the next batch of documents. There were many boxes of records to review and I was unable to finish by the close of business. I had to travel to the mainland, but I returned to review more documents on April 6, 2010. I handed over a complete list of all the records which I had reviewed that I wanted photocopied, and they delivered to me a box of records that I had selected on my initial visit. I sent a message to the OIP on April 8, 2010:

The AG now has a copy of my list of all the records of which I am requesting photocopies. On Tuesday I received a sub-set of those records, from the list I had made on previous visits. I am trying to arrange for the AG to provide the rest of the photocopies of records I requested by April 16, 2010. The AG has not confirmed that they will be able to meet that timeline. They seem to prefer to operate on an “when we get around to it, we’ll let you know” system… This makes a mockery of the UIPA notion of prompt fulfillment of requests for records, but that is no surprise to you folks, I reckon.

And then I actually started looking through those records I received on April 6. Aw, crap!

I write to the AG on April 9, 2010:

Sigh. Now we have another issue. I finally had a moment today to look at the photocopies you provided on Tuesday. The amount of redaction is unacceptable. At your office you casually mentioned that email addresses had been redacted. I have no problem with that. However, what is unacceptable is the redaction of every surname from those who communicated with the Governor’s office.

I will return these over-redacted documents and I respectfully request another set of copies be made that reveals the full names, and/or I request a justification of why those names were partially redacted. There is no right to (nor any reasonable expectation of) anonymity when a member of the public (i.e. a non-agency entity) communicates with the Governor on pending legislation.

I expect that you’ll argue this point. So I’ve gone ahead and cc’d the OIP. If the next batch of photocopies are similarly redacted I will reject them, too, so please do not make over-redacted copies of the other records I requested until this matter is resolved. However, in the unlikely event that you’re willing to agree to leave the surnames un-redacted, then please proceed with the copying (and the re-copying) with due haste.

April 15, 2010, still no word from the AG. I ping them, and get this response:

We are working on your request. And for OIP’s information, you did get to review the unredacted documents in the previous batch. The redaction of personally identifiable information was done by the Governor’s office to the hard copies that you requested, and was done for the purpose of protecting the senders from having their names or email addresses circulated without their knowledge or consent.

That won’t do. I immediately respond to OIP and AG:

As I told you last week, Mr. Suzuki, I will not accept copies with the names redacted—unless the OIP confirms that records redacted in that manner fulfill the UIPA requirements. The communications I seek are not “personal records,” so redactions that afford the correspondents anonymity are not acceptable. There is a clear public interest to attach a name to each record I requested since all of them are communications pertaining to (then) pending legislation. As you know, the legislature does not accept anonymous testimony. Indeed, the legislature (even though they are exempt from the UIPA) makes available all testimony in unredacted form. The Governor’s office is going too far. Reviewing the records is not enough. I intend to publish the records. Anonymous records won’t do.

So, Ms. Takase, it appears to be your move. How much redaction is allowed?

Blogger WIN! On April 16, 2010 the OIP responds:

I have confirmed with Mr. Suzuki that names should not be redacted, but that personal email addresses may be redacted.

Somehow without gloating, I follow up with the AG on April 16, 2010:

Mr. Suzuki, please let me know when a complete set of all the properly-redacted records is ready. At that time I will return the over-redacted box of records previously provided (containing records for Acts 110 through 189).

It seems as if some AG pouting ensued: April 27, 2010, I write:

Ten days have passed. Is there any progress to report? Can you provide any estimate of when we can conclude this?

Then on May 6, 2010:

Friday, May 7, 2010, will be twenty days. Please respond.

On May 7, 2010, I hear from Mr. Suzuki:

My legal assistant is making copies of the records you requested. Because of the legislature we could not devote as much time to your matter as we would like to. Call me on Monday so we can discuss also the matter of redoing the redacted batch that you have problems with.

Rather than calling, I explain myself by email on May 7, 2010:

Maybe I can clear this up and obviate the need for a phone call on Monday: The box I have now contains Act 110 to Act 189 of 2009. However, all the surnames in these records have been redacted. I intend to return this entire box of records to replace them with a set of the same records with the full names UN-redacted. Redact the email addresses if you feel you must (even though the Legislature does not redact email addresses), but the full names must be legible or I won’t accept them. This standard applies to all the records I requested (i.e. all those catalogued during my reviews of the records and listed on handwritten notebook pages which your staff copied before I left).

Hopefully this resolves any concern/confusion.

On May 13, 2010, I make another trip to the AG and return the over-redacted records. I leave with them another copy of my list of those records which I had selected for copying, and I go on my way.

Can you guess what comes next?

More waiting, of course. By May 28, 2010, I had reached the limit of my patience:

All that remains to conclude my records request is for the copies to be made.

When I met with Ms. Takizawa of your staff on May 13, 2010, I returned a box of over-redacted documents and (as others of your staff had done before) she made a complete list of exactly which documents to provide. When I contacted Ms. Takizawa on May 26, 2010, she informed me that NONE of the records had been copied (or re-copied, as the case may be). She told me this was because after I had reviewed the records, the boxes of documents had been returned to the Governor’s office. She said she would check on the status for me. On May 27, 2010, I got a message from Ms. Takizawa informing me that it would take “two or three more weeks” to provide the records.

This is unacceptable. If providing the records in a timely (i.e. “as legally proscribed”) fashion means that your staff needs to cross King Street and make the copies at the Capitol instead of simply waiting for a delivery of boxes at the AG building, then that is what should be done. Alternatively, I believe that the Governor’s office staff (who are the actual custodians of these records) could spare somebody for a day or so to make these copies. I’m sure an intelligent man like yourself who respects the UIPA can formulate a way to make this happen. Please do so.

An acceptable reason for delay does not include “we just never got around to starting.” My request is nearly a YEAR old, sir.

Mr. Suzuki promptly replies on May 28, 2010, with, what else, another lame excuse:

Mr. White, the problem with making copies of the docunments for you is that the governor’s office was using the files for reference in the governor’s bill review process. The documents will become available in a few days and Ms. Takizawa will begin to make your copies. I will advise her to expedite it .

I’m not having it. On May 29, 2010, I respond:

Huh? “Using the files for reference in the governor’s bill review process?” That’s hardly a credible excuse for the delay. Don’t patronize me.

None of the records I want would be of any use to the Governor at this time. i.e. ALL of the records I want refer to measures from the 2009 legislative session and NONE of those measures are pending further action by the governor.

So, yes, please, “expedite” the process.

June 1, 2010, the AG responds:

You are wrong in your understanding. Last year’s files are used by the governor’s office for review of this years bills to confirm positions that were taken on similar issues. They are used as reference material in the legislative process.

I’m through with Mr. Suzuki. I respond:

As if. Whatever. At this point the only thing I want to hear from you folks is “the records are ready for pick-up.”

On June 30, 2010, they tell me what I want to hear.

Since then, I have bought a new scanner with a document feeder. I am thinking of how to best organize and attack the job of putting these records online. Ideally the documents would be hosted on the Capitol.hawaii.gov website instead of this obscure blog, but I’ve learned through informal channels that is unlikely.

I really did not mean to go this long without a post, but, as you might imagine, at each step of the process I really thought that “it can’t be too much longer now,” and I did not feel like writing anything until I had something to report on this subject. Ironically, in January I thought that maybe I should just break down and write something. That’s when I found out that my old version of WordPress would not let me write a post (and would not accept comments, either). I took that as somewhat of an omen, haha. Once I had the records in hand, I went about updating my WordPress software. That was relatively painful since my previous version was too old for the “auto update” thing to work. Once it was upgraded and running, I discovered that my blog database was the actual cause of the problem. So I had learn enough MySQL to resolve that, too.

Any suggestions as to how to organize the records would be welcome. I am already making a database that will cross reference each record to its bill, act, sender, recipient, etc.

29 Comments »

  1. First, welcome back. For the record, I missed your skinny, fair okole.

    Second, holy shit! I think youve just put yourself at the head of the class of the adminstrations most hated list.

    Third, when you started off on this year-long journey, did you know what you were looking for? Did you know what is actually out there, other than emails, etc.?

    Forth, maybe I missed this or maybe I just dont quite understand, but were you looking for records that, say, a department sends to the Gov for or against a bill?

    Fifth, what about the Governors legislative database? Was that included anywhere?

    I think I have to re-read your post about 5 more times to get all the details.

    Comment by hipoli — July 22, 2010 @ 8:12 pm

  2. Hipoli, I did not know what this request would yield, but I did know that after her talking so much smack about the Lege without ever showing her own hand that I had to find out. Records that a department sends to the Gov are part of what I was after, but it turns out that those are privileged. I have a list of them, but not the substance of them.

    The Governor’s legislative database? What is that? They seem to cram everything into file boxes…

    I missed your pseudonymous, possibly-skinny okole, too.

    Comment by Doug — July 23, 2010 @ 3:55 am

  3. I interned in Gov-Pol for two sessions, so I have a pretty good idea of how the governor asks for (and gets) much of its information.

    First of all, just about every piece of paper (public emails, public comments, department comments, newspaper clippings) that comes in is put into its own file-folder marked for that particular bill; I don’t recall how long past files are kept, but I know that we kept all files from the odd year of the legislative cycle during the even year. We also made special files for anything that passed the Leg–and of course marked it with a big red something or other, or maybe we changed the folder to an ominous red one, if it was being considered for veto. Which means that all those files were likely right next to the Gov Pol people the entire time.

    I’m not sure what Hipoli means by the governor’s legislative database. There is a tremendous online database (also kept for the whole two-year cycle) that contains reports on every bill, including policy analysts’ notes, all department/agency communications (all done electronically), and some other public comments, which the analysts and policy people use to keep things organized. (Gov-Pol people track every single bill on some level, and when I was there we used to start the day going through the entire meeting/committee docket for the whole Leg and talk about each and every bill on there, including what Gov wanted, who needed to be asked or solicited for communication, etc. It took a while. I do think that each analyst took notes during those meetings, I’m not sure if those would be privilege.)

    Regarding solicitation: aside from requiring department/agency comments on relevant bills, and meetings with various legislators regarding certain issues, I don’t remember ever personally being asked to solicit comments from any member of the public, but I’m sure that was done. We did occasionally send out a “please send testimony to this committee” blast email/phone bank (business organizations were one I did more than once, I spent a few hours calling up power players like the Kona-Kohala Chamber of Commerce).

    I’ll try to remember more as I go. If you need any legal help, let me know–since returning to the mainland, I’ve managed to pass law school (working on the bar as we speak), and hopefully I can put my new skills to some good public service use.

    Comment by Dovid — July 23, 2010 @ 4:25 am

  4. Glad to see you’re back – and with a bang!

    I have to re-read your account, too, but I can tell right now that this recession with all of its cuts, layoffs & furloughs for state agencies has a real silver lining for them when they can effectively blow off UIPA requests like yours. From the gov’s office to OIP to the AG, they must have loved being able to shine on your requests.

    One suggestion is that you might look into portable, laptop-compatible scanning equipment. Just take it along whenever you’re allowed to inspect the records. Unless you’re looking at some extremely fragile, historic items, there’s no good reason why you can’t scan records yourself, under the same staff supervision that watches you inspect records. If these agencies are so strapped for time & personnel, they should welcome this capability on the part of a requestor.

    The OIP is a toothless tiger and now it’s been moved into its own cage over at the State Office Building. How fitting & how sad.

    Comment by wlsc — July 23, 2010 @ 5:49 am

  5. So since you’ve lit this fire under their asses and woke everyone else up to this idea that a lot of what is transmitted to the Gov on any given bill can be obtained, I want to think ahead for a moment.

    When the next administration comes in, if this is technically possible, it would be in their interest to enhance the existing legislative database, which was established by this admin and acts as a both a tracking system and a keeper of internal comments on any given bill (ie. bad bill) to incorporate PDFs of any memos, emails, etc storage bins. It was and still is a much better way to track bills than what was going on during Gov Ben’s days, except that there are a heck of a lot more Gov staff doing Lege than back then too. Not sure if thats privileged or not, I’ll leave that to you, but Im betting there’ll be a whole lot of deleting going on anyways when they read even this comment. Still, sounds like the next Govs office should consider a sharepoint system to help with the future possibility of this repeated request, actually. That would help maintain the documents and should make fulfilling any future requests much easier for everyone.

    Shes not the first Gov to talk smack about the Lege and she wont be the last. She was just the first during this new age of investigative blogging.

    Comment by hipoli — July 23, 2010 @ 6:25 am

  6. Doug,

    Thanks for your persistence. It is painful to read of the resistance you encountered. I have had a similar experience with some of the same personnel, though my effort did not drag on as long as yours.

    I got a strong sense the OIP was grossly understaffed and while the people were probably decent folks, the y were timid and dominated by officious Deputy AGs, determined to thwart efforts at compliance with a generous “Sunshine” Law.

    While it is easy to adopt the view that government agencies are inherently secretive and resentful of public scrutiny, especially from “self-anointed” advocates for the public interest. I think that attitude has hardened with the cutbacks in almost all state agencies. Most state agencies feel over-burdened by their normal level of workload. When a troublemaker comes along and behaves like a “citizen,” requesting to review government documents, this unusual request is seen as increasing that workload.

    Now that you’ve “figured out the ropes,” maybe you can request all communications to and from the Guv’s office regarding the veto of HB444? 8)

    (An aside: You’re a sailor. You think that phrase “figured out the ropes” came from sailing?)

    Thanks again for your effort. I look forward to the fruits of your research.

    Comment by Kolea — July 23, 2010 @ 7:11 am

  7. @Kolea Yes, “learning the ropes” is absolutely a nautical phrase. From the days of square-rigged ships where there were literally hundreds of sheets, halyards, and whatnot to become familiar with.

    As for the 2010 stuff, now that I’ve shown that the records are out there and they can be obtained, somebody else (and somebody else’s money) should definitely step up, get the records, and publish them. Maybe a “real” journalist? [cough]

    Seriously, though, this stuff should be on the capitol.hawaii.gov website along with the Lege testimony! How about it, Capitol-based folks?

    @Hipoli Yours sounds like a great idea—for the public. For a Governor, not so much…

    @Wlsc Bringing my own scanner could have definitely accelerated the process (and saved me some money), but the only complication would be that I was (allegedly) looking at original documents and to redact them would require making a copy first. I’m not going to bring along my own printer and paper, too!

    @Dovid Congrats on the law school graduation. Your description of how the Gov’s Policy office files this stuff sounds pretty much like what I saw. A folder with a bill, all the Lege testimony, related news clippings, and then communications to and from the public. As for soliciting comments, the policy office made a form for every bill with a list of every state agency you could think of. Those that were contacted were checked off, and on the back they listed non-governmental people/orgs that were solicited for comment. You’ll see those when I get the scanning going.

    Comment by Doug — July 23, 2010 @ 9:23 am

  8. Welcome back Doug!

    I enjoyed reading your post today and look forward to the fruits of your pained labor.

    Comment by ladyjane — July 23, 2010 @ 9:36 am

  9. Of course! “Learning the ropes”! No wonder I couldn’t find it on Google.

    Not learning the “sheets”?

    No need reply. Scan your documents.

    Thanks

    Comment by Kolea — July 23, 2010 @ 3:16 pm

  10. Doug,

    Great work!! I have to read through your post a several times to fully digest the whole saga.

    Meanwhile, you might want to get in touch with the IT folks at the Senate (they did great work with the paperless initiative) and the LRB with your treasure trove.

    Comment by jaded — July 23, 2010 @ 3:37 pm

  11. I enjoyed reading through this entire post to see the exchange that took place. Keep up the good work.

    Comment by Grant — July 23, 2010 @ 3:49 pm

  12. @Jaded I spoke informally with the LRB, but I got the impression that they fear it is a sensitive topic. I’m sure if TOLD to host the records, they would do it, of course. As for the Senate IT, got anybody particular in mind? If so, send him or her this way, please.

    Comment by Doug — July 23, 2010 @ 6:47 pm

  13. I would have loved to have met you back when I was “in control” of the Legislative Broadcast Team as the Production Assistant for the Olelo live feeds.

    I loved having access to things that I shouldn’t have had and I thank god in a way now that I didn’t know how to blog back in 2000 – 2001.

    That was before budget cutbacks of course!

    Still amazed at how much money must have been spent on liquor on opening day less then a decade ago by many of our elected officials.

    Comment by damon — July 23, 2010 @ 7:21 pm

  14. Think it’s bad here? Try doing research in Washington, D.C. I’ve been working long distance for about two years now on climate change/renewable energy. Since Obama took office, the amount of STUFF my colleagues and I have had to endure is enough to go consider the possibility of entering into negotiations with A Very Bad Person.

    Still, congratulations on your perseverence. I’m right in the midst of a huge research project involving a major state landmark. Neither the two state senators I’m working with, a powerful lobbyist, nor a Big Muckamucka in the business community were able to get much of anything.

    I just happened to whispter “sue your ass” one day to an executive assistant in the state agency we had to deal with – and three days later 17 boxes of STUFF was delivered to my downtown office. I’ve just finished Box #2.

    A few days ago, when I read about you in David Shapiro’s blog, I said that I hadn’t heard of you before. I believe it was Hipoli who was surprised that I hadn’t run across you at the Legislature.

    For whom did you work or in what office? I also said that I many staffers by face and even more by first name, but only a few folks’ last name.

    Are you going to ask for the 30K requests to veto HB444?

    Comment by Capitol -ist/WassupDoc — July 24, 2010 @ 12:54 am

  15. @Capitol-ist/WassupDoc I was PSM clerk for Nestor Garcia until he went to the City Council. Then I worked on the majority bill digest for Marilyn Lee. 1997-2006.

    I’m not planning to ask for the 2010 stuff. As I said earlier, let somebody else go through the humbug and expense(!) now that I’ve shown it can be done…

    Comment by Doug — July 24, 2010 @ 4:25 am

  16. Forgot about the redaction nonsense! You’re right, of course, in the case of this particular request.

    I used to work for a state agency and we allowed people to come in all the time to review files & other records. The only restrictions came in cases where litigation had commenced or was imminent; the AG had to review all those files first & might then request that items be withdrawn, but then the remaining materials could be provided. I recall the esteemed Carroll Cox visiting on more than one occasion to view records & make copies with his laptop & portable scanner. I didn’t mind it – saved us staff time, effort & office supplies!

    The Leg may have its problems but electronic records availability & access aren’t among them. Only wish that the Executive branch agencies made as much good use of their online presences, including RSS feeds, as the Leg has.

    Comment by wlsc — July 24, 2010 @ 8:41 am

  17. As for hosting the docs, I don’t think the Capitol.gov website is the appropriate place. The website is for documents generated or received by the Legislature or one of its committees. The LRB Library might be a possibility; there’s all sorts of reference material there and they have a super web presence. Getting the Director’s buy-in is highly unlikely, unless, as you suggest, the Legislature or some part/member of it told him to do it. Same for Senate IT. I don’t know if the State Archives has an online presence but it would perhaps be an appropriate home, as well; indeed, perhaps the most appropriate of all.

    Comment by ohiaforest3400 — July 26, 2010 @ 6:22 pm

  18. @Ohiaforest3400 You don’t say… ;)

    Well, I would argue that all the documents pertaining to the debate over legislation should be in one place. I don’t see why it matters where a document was generated or received.

    Comment by Doug — July 26, 2010 @ 8:35 pm

  19. Well, how far you gonna take that? If we’re going to include docs “pertaining to the debate over legislation” originating in the Exec branch, should the Judiciary’s be included, too? The counties’? Why limit it to government entities (other than that the UIPA applies to government records)? Apply it to any NGO receiving gov’t money by virtue of which their docs “pertaining to the debate over legislation” are “government records”?

    Dunno, but I’m seein’ this as the work-product of the 4th estate and think it should remain as such, not be absorbed into those of another, and lost in the process.

    I’m not sayin’. I’m just sayin’.

    Comment by ohiaforest3400 — July 26, 2010 @ 8:59 pm

  20. @Ohiaforest3400 If I had (or could get) all of those records, I’d want them published at the same place, too. I’m agnostic as to where that place is, but since the Lege already has an extensive testimony library up and running, why recreate the wheel?

    Comment by Doug — July 27, 2010 @ 4:21 am

  21. Doug,

    Instead of contacting Senate IT directly, you might want to speak to Carol Taniguchi (Senate Clerk) since they have to report to her anyway. Good luck!

    Comment by jaded — July 27, 2010 @ 2:21 pm

  22. @Jaded Good suggestion. I’ve offered the records to her. We’ll see what comes of my offer.

    Comment by Doug — July 27, 2010 @ 4:42 pm

  23. Doug, are you familiar with Section 92F-18, HRS? http://capitol.hawaii.gov/hrscurrent/Vol02_Ch0046-0115/HRS0092F/HRS_0092F-0018.htm It imposes on agencies the duty to keep a record of all records they keep! While many never implemented this requirement, it might have helped to find what you are looking for had you approached it from this angle. If they had done the required report, they should have been able to look at it and see on the list the category of “solicitations of comments on bills passsed and responses received.” Conversely, if they had these records, they would have been identified to identify them in this report. Now that you have the records, you might ask for the required inventory report. If they don’t have it — or it doesn’t show the records you now have — then they are in violation of the law.

    They can’t have it both ways.

    Or can they?

    Indeed, did they?

    Comment by ohiaforest3400 — July 29, 2010 @ 1:50 pm

  24. @Ohiaforest3400 Probably that 92F-18 “record of records kept” would have helped, but, like you, I very much doubt any holder of government records complies with that section of the law. The OIP would be run ragged trying to enforce all the violations…

    Comment by Doug — July 29, 2010 @ 4:56 pm

  25. Well, in another incarnation, I worked in an office that took that inventory very seriously (tediously), at least in aport as a result of the training by, and vigilance of, OIP. Yet another example of how the reduction of OIP to a vestigial organ by the last two governors has eviscerated the law.

    Comment by ohiaforest3400 — July 30, 2010 @ 11:39 am

  26. Wow, what a feat, Doug. However, I do not think you should have been charged. It seems that as a well-read blogger with the ability to disseminate the information to a large public audience you should be eligible for a fee waiver under criteria (3) of section 2-71-32, Hawaii Administrative Rule.

    Comment by Joan Conrow — August 3, 2010 @ 9:01 pm

  27. @Joan Conrow: According to the rules I read, the “public interest” UIPA fee waiver is only for the first $60, not for the entire amount.

    Comment by Doug — August 4, 2010 @ 4:21 am

  28. i thought you didn’t have to pay the segregation fees if you were going to widely distribute the records on the internet? that’s in the admin rules somewhere. why were you left with a bill when it was over a year before you got it?

    Comment by anonymous — August 12, 2010 @ 8:31 pm

  29. @Anonymous Unfortunately, the rules say nothing about the fees decreasing if the response is not timely. The document that I read only allows a waiver of the first $30 in fees, and the first $60 in fees for members of the media.

    Comment by Doug — August 13, 2010 @ 4:05 am

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