A state bill that could limit access to public records was referred to its final Senate committee this week.
House Bill 1518, introduced by Oahu Rep. Scott Saiki, would allow for a Circuit Court to declare a public records requester a “vexatious requester.”
Such a determination would be made if an agency can demonstrate the requester in question is abusing his or her right to public records.
“Very occasionally, extreme situations arise when a small number of requesters make records requests with the intent to harass an agency,” the bill states.
The Hawaii Public Housing Authority testified during the most recent Senate hearing that “two individuals have regularly made up over 60 percent of HPHA’s UIPA requests (one reaching 85 percent in a recent UIPA report). … In the most vexatious instance, the individual would send a copy of the same letter multiple times throughout the year, all with the same date of the original letter.”
Hawaii Health Systems Corp. also supported the bill, submitting in its testimony email exchanges between several agencies and Kailua-Kona residents Tom Russi and Christine Paul. Russi and Paul first started filing records requests in West Hawaii about 20 years ago.
Other state agencies such as the University of Hawaii system and the Department of Agriculture have supported the bill as well.
Brian Black, executive director of the nonprofit Civil Beat Law Center for the Public Interest, pointed out in his testimony that according to available records, UH had received just 42 nonroutine records requests over the past three fiscal years. The most frequent requesters to UH were all news reporters.
“Applying the ‘vexatious’ label to frequent requesters to those departments would seem politically motivated to silence the news media and community advocates, not protect agency efficiency,” Black said.
The Big Island Press Club issued its own statement on the matter, stating the importance of legislation not being “used as a means to block or hinder media access and the public’s right to know.
“The BIPC is concerned that this legislation could be used to unjustly hamper the gathering and dissemination of news by media outlets and individual reporters, or impair access to public information by ordinary citizens. It is important that the Legislature acts in the public’s best interest to ensure people’s ability to remain accurately informed.”
Testifiers including Hawaii Health Systems Corp. recommended that a judge make the final determination on what would be “vexatious.” In its original form, that decision would have been made by the state Office of Information Practices.
OIP itself was not in favor of that, saying in testimony that while it supported the intent of the bill, it had “serious concerns about the approach taken.”
OIP director Cheryl Kakazu Park wrote that the factors needed to determine whether a person was a vexatious requester were too restrictive and that four of the six suggested factors were “relatively subjective ones.”
“OIP also questions whether the process proposed by this bill would even be effective in providing relief to an agency swamped by requests … since the agency could be tied up in defending the designation of the person,” she wrote.
The current form of the bill would place the matter in Circuit Court and allow the proceedings to take precedence on the docket.
A hearing has not yet been scheduled for the bill’s final committee in the Senate, the Committee on Judiciary and Labor.
A “vexatious requests” law was signed into effect in 2010 at the height of the “Birther” movement, prohibiting the same individual from making the same request multiple times, but it expired in 2014.
A different type of access bill is making its way through the House.
That bill, first introduced to the Senate by several Big Island legislators, addresses media access to areas that have been closed to the public by emergency management agencies.
“This primarily was prompted by the lava flow (of 2014),” said Sen. Russell Ruderman, one of the co-introducers. “There was virtually no media access to the lava; (Hawaii County) Civil Defense kept everybody away in a very, in most people’s opinion, heavy-handed way.”
Ruderman said that in some cases private property owners were told by Civil Defense that they could be arrested for allowing a reporter or photographer to come on their property.
“That’s just too much,” he said. “Of course, that has to be balanced with safety and public safety, but it can’t be all the way on one side,” he said.
The current version of the bill allows for emergency management agencies to determine that “media acess is reasonable and safe and does not hinder ongoing response and recovery activities.” It also allows for a pool writer, photographer and videographer to be designated.
The bill was referred to the House Committee on the Judiciary this week but has not been scheduled for a hearing yet.
Email Ivy Ashe at iashe@hawaiitribune-herald.com.
