This template is for journalists seeking to compel a state or county agency to turn over government records requested under Hawaii’s Uniform Information Practices Act (“UIPA”).1 The template provides a general outline for complaints filed in one of Hawaii’s circuit courts, with areas for editing in brackets. Filing a complaint with the court is the last step of the process for seeking records under UIPA. A journalist seeking records must (or, where indicated, may) take the following steps:
1. Request documents from the agency.
The first step is to ask the agency or entity that possesses the records for the opportunity to inspect or obtain copies of them. An individual’s right to inspect particular records will be governed by the following general principles and procedures.
The UIPA governs access to “government records,” which are defined to be “information maintained by an agency in written, auditory, visual, electronic, or other physical form.” Haw. Rev. Stat. § 92F-3 (2013). The Act applies to government records maintained by every unit of government in the state, except for the non-administrative functions of the courts. Id. It also applies to the records of non-governmental entities that are owned, operated or managed by or on behalf of the state or a county. Id.
The UIPA provides that “[a]ll government records are open to public inspection unless access is restricted or closed by law.” Id. §92F-11(a). The Act includes descriptions of certain records that must be disclosed (id. §92F-12), descriptions of certain records that need not be disclosed (id. §92F-13), and examples of personal privacy interests that must be considered in deciding whether records should be disclosed (id. §92F-14). In general, an agency may deny access to government records if their disclosure would constitute an unwarranted invasion of personal privacy; if they are protected from disclosure by statute or court order; if they pertain to the prosecution or defense of a judicial or quasi-judicial action to which the state or any county is or may be a party; if they need to be kept confidential to avoid frustration of a legitimate government function; or if they are draft working papers of legislative committees, closed records of a legislative investigative committee, or personal files of members of the legislature. Id. §92F-13.
The Office of Information Practices has issued regulations that describe the procedures and permissible fees relating to requests for government records. See Haw. Admin. Rules §§2-71-1 – 2-71-33. The regulations permit both “informal,” oral requests and “formal,” written requests for access to records, but permit the agency to respond to an “informal” request by directing the requestor to file a “formal” request. Id. §§2-71-2, 2-71-11, 2-71-12. They also provide that, if a requestor is not satisfied with the agency’s response to an “informal” request, the requestor may follow-up by submitting a “formal” request. Id. §2-71-11(c). To avoid misunderstandings and delays, and to ensure a clear record for possible court action, it is advisable to file a “formal,” written request for the records at the outset. A formal request must be in written, electronic, or other physical form and must contain:
1. Information that would enable the agency to correspond with or contact the requester;
2. A reasonable description of the requested record to enable agency personnel to locate it with reasonable effort. The description should include, if known, the record name, subject matter, date, location, and any other additional information that reasonably describes the requested record;
3. If applicable, a request for a waiver of fees, and the facts that support the request for waiver of fees; and
4. A request to inspect or obtain a copy of the records described and, if applicable, the means by which the requester would like to receive the copies.
Haw. Admin. Rules §2-71-12(b). The Office of Information Practices website includes a form that can be used to submit a formal request.
Neither the UIPA nor the Office of Information Practices’ rule sets a specific time for an agency’s response to an informal request, though the Office of Information Practices rules specify that the agency must provide access to disclosable records in a “reasonably timely manner.” Haw. Admin. Rules §2-71-11(b)(1). In the case of formal requests, the agency has ten business days to disclose government records that will be disclosed in their entirety. Id. §2-71- 13(a). For those records that will be “segregated” (i.e., redacted to remove non-disclosable information) before being disclosed, the agency has ten business days to provide notice to the requester. Id. §2-71-13(b). Within five business days of providing notice and receiving prepayment of fees, if required, the agency must disclose the public part of the requested government records. Id. §2-71-11(b)(1). There are some extenuating circumstances where more time may be allowed. Id. §§2-71-11(c), 2-71-15(a).
The agency that receives a records request may charge the requestor fees to search for, review and redact the requested records. Id. §2-71-19. The fees are described in the Office of Information Practices rules at Haw. Admin. Rules §2-71-31. Agencies may waive $60 of the total fees if it is determined that waiver would be in the public interest. Id. §2-71-32.
2. If desired, pursue an administrative appeal.
If a request for any record is denied, the requestor may file an administrative appeal with the Office of Information Practices. See Haw. Rev. Stat. § 92F-15.5; Haw. Admin. Rules §2-73-11. The administrative appeal is optional, and does not need to be undertaken in order to seek a court order compelling the agency to produce the requested record(s). Haw. Rev. Stat. § 92F-42(1).
The rules and procedures governing administrative appeals are set forth in Haw. Admin. Rules §§2-73-1 – 2-73-20. An administrative appeal must be filed within one year after receiving a denial of a records request. Id. §2-73-12(a)(1). The appeal must include sufficient information about the requestor to enable the Office of Information Practices to contact him or her, must describe the records to which access was denied, and must include a copy of the agency’s written denial. Id. §2-73-12(b & c). In addition, the requestor may (but is not required to) include in his or her appeal a statement of relevant facts, reasons for disagreeing with the agency’s denial, and any other information that might be pertinent. Id. §2-73-12(d).
3. File a complaint with one of the state circuit courts.
If a request for a record is denied, any person aggrieved by the denial may bring a court action against the agency involved to compel disclosure of the record. Haw. Rev. Stat. § 92F-15(a). The action must be brought within two years after the denial. Id.
To begin a court action, it is necessary to file a complaint in the state circuit court for the judicial circuit in which the request for the records is made, where the requested records are maintained, or where the agency’s headquarters are located. Id. §92F-15(e). It is also necessary to provide written notice of the lawsuit to the Office of Information Practices at the time the complaint is filed. Id. §92F-15.3.
In an action to compel disclosure, the agency bears the burden of proving a justification for withholding requested records. Id. §92F-15(c).
If the person seeking to compel disclosure of records prevails in court, the court may require the agency to pay for the reasonable attorney’s fees and other expenses the complainant incurred in the litigation. Id. §92F-15(d).
1 In addition to the procedures described in this summary, the UIPA contains some specific requirements and procedures that only apply when an individual is requesting “personal records” that contain information about the requestor himself. See Haw. Rev. Stat. §§ 92F-21 — 92F-28.