SB3252

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 that information can range from serious to routine but, in all cases, result in a less informed citizenry. Fee waivers offer a simple and flexible solution. Governor Ige has stated, "Effective citizen participation in state government requires timely access to information and appropriate opportunities for the public to provide its government with feedback and ideas."

The legislature further finds that this Act seeks to provide further direction and carry out the intent indicated by the legislative history of section 92F-42(13), Hawaii Revised Statutes, waiver of fees provision first introduced in House Bill No. 2002 (1988). The original language of House Bill No. 2002 (1988) allowed fees for only copies of records, but the House of Representatives' Judiciary Committee's House Draft 1 amended the bill to also allow charges for searching, reviewing, and segregating records, while also allowing waivers for public interest. The House Judiciary Committee's report, House Standing Committee Report No. 342-88, stated that:

It is the intent of your Committee that such charges for search, compilation, and segregation shall not be a vehicle to prohibit access to public records. It is the further intent of your Committee that the Office of Information Practices move aggressively against any agency that uses such charges to chill the exercise of first amendment rights. Your Committee also added new language to allow waiver of these charges when such action serves the public interest.

By providing public-interest fee waivers uniformly, the public records request process can provide equity to access.

The purpose of this Act is to:

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

(2) Waive reproduction costs for the first one hundred pages if disclosure is in the public interest;

(3) Waive the cost of duplication of government records in an electronic format;

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

(5) Provide for a waiver of fees when the public interest is served.

SECTION 2. 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 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 geographic information system digital data, photographs, maps, audio recordings, digital or electronic records, and other types of physical copies, shall not [~~be less than 5~~] exceed 25 cents per page, sheet, or fraction thereof. The first one hundred pages shall be reproduced without any charge if disclosure of the information is in the public interest because it is likely to contribute significantly to the public understanding of the operations or activities of the government and is not primarily in the commercial interest. Reproduction costs shall not be charged for producing documents provided to requesters in electronic format. The cost of reproducing geographic information system digital data, photographs, maps, audio recordings, digital or electronic records, and other types of physical copies shall be in accordance with rules adopted by the agency having charge or control of that data. [~~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 costs of making the copies and be limited to the salary of the operator as well as the cost of the reproduction machinery. All fees shall be paid in by the public officer receiving or collecting the same to 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 3. 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) 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;

(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 administrative appeals structure which provides for:

(A) Agency procedures for processing records requests;

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

(13) Shall adopt rules that set forth 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:

(A) Not exceed $5 per fifteen minutes or fraction thereof for a search for the record;

(B) Not exceed $7.50 per fifteen minutes or fraction thereof for the review and segregation of the record; and

(C) Provide for a waiver of fees when the public interest would be served; provided that the waiver shall require searching, reviewing, or segregating of documents be provided without any charge if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest;

(14) Shall adopt rules which set forth uniform standards for the records collection practices of agencies;

(15) Shall adopt rules that set forth uniform standards for disclosure of records for research purposes;

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

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

(18) 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

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect on July 1, 2024.

INTRODUCED BY:

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THE SENATE	S.B. NO.	3252
THIRTY-FIRST LEGISLATURE, 2022
STATE OF HAWAII