HOUSE OF REPRESENTATIVES

H.B. NO.

719

THIRTY-SECOND LEGISLATURE, 2023

H.D. 1

STATE OF HAWAII

S.D. 2

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO PUBLIC RECORDS.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. The legislature finds that public records laws are a critical mechanism to maintain government accountability and transparency and support citizen involvement in government decision-making. The real-world consequences of restricting access to government information can range from serious to routine but, in all cases, result in a less-informed citizenry.

The legislature finds that this Act adopts the Freedom of Information Act standard to define waivers of fees for the search, review, or segregation of disclosable records when in the public interest. The federal standard provides a waiver in limited circumstances based on careful examination of various factors, including the subject matter of the request and identity of the requester. Case law under the Freedom of Information Act will provide guidance for interpreting the standard.

Accordingly, the purpose of this Act is to:

(1) Impose a cap on charges for the reproduction of certain government records;

(2) Waive the cost of duplication of government records provided to requestors in an electronic format;

(3) Allow agencies to withhold certain deliberative documents before a decision is made;

(4) Impose a cap on charges for searching for, reviewing, and segregating records;

(5) Provide for a waiver of fees in certain circumstances when the public interest is served by a record's disclosure; and

(6) Appropriate funds for two permanent positions within the office of information practices.

SECTION 2. Section 92F-3, Hawaii Revised Statutes, is amended by amending the definition of "government record" to read as follows:

""Government record" means information maintained by an agency in written, auditory, visual, electronic, or other physical form. The term does not include truly preliminary records, such as personal notes and rough drafts of memoranda, that have not been circulated."

SECTION 3. Section 92-21, Hawaii Revised Statutes, is amended to read as follows:

"92-21 Copies of records; other costs and fees. Except as otherwise provided by law, a copy of any government record, including any map, plan, diagram, photograph, photostat, or geographic information system digital data file, [which] that is open to the inspection of the public, shall be furnished to any person applying for the same by the public officer having charge or control thereof upon the payment of the reasonable cost of reproducing [such] the copy. Except as provided in section 91‑2.5, the cost of reproducing any government record, except maps, photographs, geographic information system digital data, audio recordings, digital or electronic records, and other types of physical records, shall not [be less than 5] exceed 25 cents per page, sheet, or fraction thereof[. The]; provided that the cost of reproducing maps, photographs, geographic information system digital data, audio recordings, digital or electronic records, and other types of physical records shall be in accordance with rules adopted by the agency having charge or control of that data. Reproduction costs shall not be charged for producing documents provided to requesters in an electronic format; provided that the agency maintains those documents in an electronic format; provided further that requesters shall be charged for the agency's provision of documents requested in an electronic format that are not maintained by the agency in an electronic format and must be manually faxed or converted into an electronic format. [Such] The reproduction cost shall [include but shall not be limited to labor cost for search and actual time for reproducing, material cost, including electricity cost, equipment cost, including rental cost, cost for certification, and other related costs.] represent the reasonable direct cost of making the copies and be limited to the salary of the operator of the reproduction machinery as well as the cost of the machinery. All fees [shall be paid in] received or collected by the public officer [receiving or collecting the same to] shall be deposited with the state director of finance, the county director of finance, or [to] the agency or department by which the officer is employed, as government realizations; provided that fees collected by the public utilities commission pursuant to this section shall be deposited in the public utilities commission special fund established under section 269-33."

SECTION 4. Section 92F-13, Hawaii Revised Statutes, is amended to read as follows:

"92F-13 Government records; exceptions to general rule. This part shall not require disclosure of:

(1) Government records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy;

(2) Government records pertaining to the prosecution or defense of any judicial or quasi-judicial action to which the State or any county is or may be a party, to the extent that such records would not be discoverable;

(3) Government records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function;

(4) Government records which, pursuant to state or federal law including an order of any state or federal court, are protected from disclosure; [and]

(5) Inchoate and draft working papers of legislative committees including budget worksheets and unfiled committee reports; work product; records or transcripts of an investigating committee of the legislature which are closed by rules adopted pursuant to section 21-4 and the personal files of members of the legislature[.]; and

(6) Inter-agency or intra-agency deliberative and pre‑decisional government records, other than purely factual information that is readily segregable, concerning an agency decision about a government action up until the final decision to which the government records relate has been made or until deliberation of the matter has been abandoned; provided that there shall be a rebuttable presumption that a matter has been abandoned if three years have elapsed after a request for records; provided further that once disclosure is required, the name, title, and other information that would directly identify a public official or employee may be withheld if that person lacks discretionary authority, did not make the decision, and is not under investigation for or engaged in wrongdoing or criminal conduct related to the decision. This paragraph shall not apply to board packets as defined by section 92‑7.5."

SECTION 5. Section 92F-42, Hawaii Revised Statutes, is amended to read as follows:

"92F-42 Powers and duties of the office of information practices. The director of the office of information practices:

(1) Shall, upon request, review and rule on an agency denial of access to information or records, or an agency's granting of access; provided that any review by the office of information practices shall not be a contested case under chapter 91 and shall be optional and without prejudice to rights of judicial enforcement available under this chapter;

(2) Upon request by an agency, shall provide and make public advisory guidelines, opinions, or other information concerning that agency's functions and responsibilities;

(3) Upon request by any person, may provide advisory opinions or other information regarding that person's rights and the functions and responsibilities of agencies under this chapter;

(4) May conduct inquiries regarding compliance by an agency and investigate possible violations by any agency;

(5) May examine the records of any agency for the purpose of paragraphs (4) and [(18)] (15) and seek to enforce that power in the courts of this State;

(6) May recommend disciplinary action to appropriate officers of an agency;

(7) Shall report annually to the governor and [the state] legislature on the activities and findings of the office of information practices, including recommendations for legislative changes;

(8) Shall receive complaints from and actively solicit the comments of the public regarding the implementation of this chapter;

(9) Shall review the official acts, records, policies, and procedures of each agency;

(10) Shall assist agencies in complying with the provisions of this chapter;

(11) Shall inform the public of the following rights of an individual and the procedures for exercising them:

(A) The right of access to records pertaining to the individual;

(B) The right to obtain a copy of records pertaining to the individual;

(C) The right to know the purposes for which records pertaining to the individual are kept;

(D) The right to be informed of the uses and disclosures of records pertaining to the individual;

(E) The right to correct or amend records pertaining to the individual; and

(F) The individual's right to place a statement in a record pertaining to that individual;

(12) Shall adopt rules that set forth [an]:

(A) An administrative appeals structure [which] that provides for:

[(A)] (i) Agency procedures for processing records requests;

[(B)] (ii) A direct appeal from the division maintaining the record; and

[(C)] (iii) Time limits for action by agencies;

[(13) Shall adopt rules that set forth the]

(B) The fees and other charges that may be imposed for searching, reviewing, or segregating disclosable records[, as well as to provide for a waiver of fees when the public interest would be served;]. The rules shall:

(i) Set forth fees not exceeding $5 per fifteen minutes or fraction thereof for the search for the record;

(ii) Set forth fees not exceeding $7.50 per fifteen minutes or fraction thereof for the review and segregation of the record; and

(iii) Provide for a waiver of fees when the public interest would be served by the record's disclosure; provided that the waiver shall require that the search for or review or segregation of records be provided at no charge to the requester if disclosure of the record is in the public interest because the disclosure is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. Factors to be considered when determining if the disclosure would serve the public interest include, but are not limited to: (a) the subject of the request; (b) the informative value of the information to be disclosed; (c) the contribution to an understanding of the subject by the general public likely to result from disclosure; (d) the significance of the contribution to public understanding; (e) the existence and magnitude of a commercial interest; and (f) the primary interest in disclosure; and

[(14) Shall adopt rules which set forth uniform]

(C) Uniform standards for [the]:

(i) The records collection practices of agencies; and

[(15) Shall adopt rules that set forth uniform standards for disclosure]

(ii) Disclosure of records for research purposes;

[(16)] (13) Shall have standing to appear in cases where the provisions of this chapter or part I of chapter 92 are called into question;

[(17)] (14) Shall adopt, amend, or repeal rules pursuant to chapter 91 necessary for the purposes of this chapter; and

[(18)] (15) Shall take action to oversee compliance with part I of chapter 92 by all state and county boards including:

(A) Receiving and resolving complaints;

(B) Advising all government boards and the public about compliance with chapter 92; and

(C) Reporting each year to the legislature on all complaints received pursuant to section 92-1.5."

SECTION 6. There is appropriated out of the general revenues of the State of Hawaii the sum of $           or so much thereof as may be necessary for fiscal year 2023-2024 and the same sum or so much thereof as may be necessary for fiscal year 2024-2025 for two full-time equivalent (2.0 FTE) permanent positions to be placed within the office of information practices.

The sums appropriated shall be expended by the office of information practices for the purposes of this Act.

SECTION 7. Section 4 does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 8. The sections and provisions of this Act are not severable from any other section or provision. To the extent that any part of this Act shall be deemed invalid for any reason, the entirety of the Act, and every section and provision therein, shall be deemed invalid.

SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 10. This Act shall take effect on July 1, 2050; provided that section 4 shall be repealed on June 30, 2028, and section 92F-13, Hawaii Revised Statutes, shall be reenacted in the form in which it read on the day before the effective date of this Act.


 


 

Report Title:

Commission to Improve Standards of Conduct; Public Records; Costs; Disclosure; Public Interest; Waiver; Office of Information Practices; Positions; Appropriation

 

Description:

Imposes a cap on charges for the reproduction of certain government records. Waives the cost of duplication of government records provided to requestors in an electronic format. Allows agencies to withhold certain deliberative documents before a decision is made. Imposes a cap on charges for searching for, reviewing, and segregating records. Provides for a waiver of fees when the public interest is served by a record's disclosure. Appropriates funds for positions in the Office of Information Practices. Effective 7/1/2050. (SD2)

 

 

 

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