On February 26, 1999, following
public hearings, OIP's administrative rules, "Agency Procedures
and Fees for Processing Government Records Requests," took
effect. These rules are set forth at Chapter
71 of Title 2 of the Hawaii Administrative Rules.
See also A Quick
Guide to the Rules, and Impact
Statement.
Click
here for the official copy of OIP's administrative rules.
[Note: The text below is an up-to-date, but "unofficial,"
copy of OIP's administrative rules, "Agency Procedures and
Fees for Processing Government Records Requests."]
(Effective February 26, 1999)
HAWAII ADMINISTRATIVE RULES
TITLE 2
OFFICE OF THE LIEUTENANT GOVERNOR
SUBTITLE 7
OFFICE OF INFORMATION PRACTICES
CHAPTER 71
AGENCY PROCEDURES AND FEES FOR PROCESSING GOVERNMENT
RECORD REQUESTS
Subchapter 1: General Provisions
§2-71-1 Purpose, scope, and construction
§2-71-2 Definitions
§2-71-3 Reporting to the OIP
§2-71-4 to 2-71-10 (Reserved)
Subchapter 2: Agency Procedures
for Processing Record Requests under Part II of Chapter 92F, Hawaii
Revised Statutes
§2-71-11 Informal requests for
access to government records; agency response
§2-71-12 Formal requests for
access to government records; contents
§2-71-13 Formal request received;
agency response; time limits
§2-71-14 Agency's notice
§2-71-15 Extenuating circumstances;
incremental disclosures
§2-71-16 Requester's responsibilities;
abandonment of request
§2-71-17 Segregation of information
in records
§2-71-18 Location of disclosure;
alternatives
§2-71-19 Assessment of fees;
prepayment
§2-71-20 Public access to disclosable
records provided by a secondary source
§§2-71-21 to 2-71-30 (Reserved)
Subchapter 3: Fees for Searching
For, Reviewing, and Segregating Government Records
§2-71-31 Fees for searching
for, reviewing, and segregating record; exceptions
§2-71-32 Waiver of fees when
public interest served
§2-71-33 Fees charged for records
that will not be disclosed
SUBCHAPTER 1
GENERAL PROVISIONS
§2-71-1 Purpose,
scope, and construction.
The purpose of this chapter is to establish:
(1) Procedures and time limits that agencies shall
follow when processing requests to inspect or copy government records
under part II of the Uniform Information Practices Act (Modified),
chapter 92F, Hawaii Revised Statutes; and
(2) The fees that agencies may charge for searching
for, reviewing, and segregating government records and a waiver
of these fees when the public interest would be served. The fees
set forth in this chapter are not intended to obstruct public access
to disclosable government records, but rather are intended to allow
agencies to recover some costs in providing access to disclosable
records upon request.
[Eff FEB 26 1999 ] (Auth: HRS §92F-42) (Imp:
HRS §92F-11)
§2-71-2 Definitions.
Unless the context otherwise requires, in this chapter:
"Access" means inspection of disclosable
government records, acquisition of copies of disclosable government
records, or both, when requested by any person.
"Agency" shall be as defined in section
92F-3, HRS.
"Business day" means a government agency
business day within the office hours set forth in section 80-1,
HRS, excluding Saturdays, Sundays, and state holidays observed pursuant
to chapter 8, HRS.
"Disclosable record" means a government
record that is required to be made available for public inspection
and copying under chapter 92F, HRS, after payment of applicable
fees.
"Formal request" means a request that is
in written, electronic, or other physical form that a person submits
to an agency for access to records and that contains the information
prescribed by section 2-71-12(b).
"Government record" shall be as defined
in section 92F-3, HRS.
"Individual" shall be as defined in section
92F-3, HRS.
"Informal request" means a request, in any
form, that a person submits to an agency for access to records and
to which the agency responds in accordance with section 2-71-11.
"Maintain" means to hold, possess, preserve,
retain, store, or administratively control.
"OIP" means the office of information practices,
office of the lieutenant governor, State of Hawaii.
"Person" shall be as defined in section
92F-3, HRS.
"Personal record" shall be as defined in
section 92F-3, HRS.
"Prepayment" means the fees that a requester
must tender to the agency before the agency begins processing a
request for records in accordance with section 2-71-19(b).
"Record" means one or more government records,
or any portion thereof, requested for public inspection or copying.
"Requester" means any person making a request
for public inspection or copying of a government record under this
chapter.
"Review" means to examine a government record,
in response to a request for access to the record, in order to determine
which portions, if any, of the record are exempt from disclosure
by law. Review does not include the time spent by the agency, or
another person, to resolve issues of general law or policy regarding
the applicability of exceptions to disclosure under chapter 92F,
HRS.
"Search" means to look for a government
record, including page-by-page or line-by-line identification of
a government record. A search may be performed manually or by computer
using existing retrieval or programming capabilities.
"Segregate" means to prepare a government
record for disclosure by excising any portion of the record that
is protected from disclosure under chapter 92F, HRS.
[Eff FEB 26 1999 ] (Auth: HRS §92F-42) (Imp:
HRS §92F-3)
§2-71-3 Reporting to the
OIP.
As required by the OIP, each agency shall file with
the office of information practices a report setting forth the following
information:
(1) The number of requests for access to records for
which fees were assessed; and
(2) The number of requests for access to records which
qualified for a waiver of fees pursuant to section 2-71-32, and
the amount of fees waived for each request.
[Eff FEB 26 1999 ] (Auth: HRS §92F-42) (Imp:
HRS §92F-42)
§§2-71-4 to 2-71-10 (Reserved).
SUBCHAPTER 2
AGENCY PROCEDURES FOR PROCESSING RECORD REQUESTS UNDER
PART II OF CHAPTER 92F, HAWAII REVISED STATUTES
§2-71-11 Informal
requests for access to government records; agency response.
(a) Any person may, during an agency's regular business
hours, submit an informal request for access to records.
(b) Upon receiving an informal request under this
section, an agency shall respond to the request by doing one or
more of the following:
(1) Provide access to any disclosable record requested
pursuant to part II of chapter 92F, HRS, in a reasonably timely
manner; provided that if the agency will charge the requester $15
or more in fees, pursuant to section 2-71-19, the agency shall inform
the person of the amount of fees, or an estimate thereof, before
processing the request.
(2) Deny access to all or any part of the records
requested that are confidential under section 92F-13, HRS, or any
other law; provided that if the requester disagrees with the agency's
denial, the agency shall advise the requester of the option of submitting
a formal request.
(3) Inform the requester that the agency does not
maintain the record; or
(4) Inform the requester to submit a formal request
in accordance with section 2-71-12.
(c) When a requester is not satisfied with the agency's
response, or failure to respond, to the informal request, the requester
may make a formal request for access to records in accordance with
section 2-71-12.
(d) A request that complies with section 2-71-12 shall
be treated as a formal request under this chapter, unless otherwise
agreed upon by the requester and the agency.
[Eff FEB 26 1999 ] (Auth: HRS §92F-42) (Imp:
HRS §92F-11)
§2-71-12 Formal
requests for access to government records; contents.
(a) Any person may, during an agency's regular business
hours, submit a formal request for access to records in accordance
with this section.
(b) A formal request shall be in writing and shall
contain the following information:
(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
for searching for, reviewing, or segregating the requested record,
when the requester believes that a waiver would serve the public
interest in accordance with section 2-71-32; provided that the request
states the requester's identity and other facts that support the
request for a 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 copy.
[Eff FEB 26 1999 ] (Auth: HRS §92F-42) (Imp:
HRS §92F-11)
§2-71-13 Formal request
received; agency response; time limits.
(a) When an agency receives a request for access to
a record that is:
(1) Required to be disclosed under section 92F-12,
HRS, in its entirety; or
(2) Available for public access in its entirety,
The agency shall disclose the record within a reasonable
time not to exceed ten business days.
(b) When an agency receives a request for access to
a record that is not covered by subsection (a), including records
that will be segregated, the agency shall:
(1) Provide a notice in accordance with section 2-71-14
within ten business days; and
(2) Disclose the requested record within five business
days after providing notice or, when applicable, after receiving
a prepayment under section 2-71-19; provided that the agency may
disclose incrementally when authorized under section 2-71-15.
(c) When an agency receives a request for access to
a record that is not covered by subsection (a), and extenuating
circumstances exist in accordance with section 2-71-15, the agency
may provide a written acknowledgment within ten business days of
the date of the request. The written acknowledgment, if provided,
shall state that the notice required under section 2-71-14 shall
be sent within a reasonable time not to exceed twenty business days
following the date when the agency received the request and shall:
(1) Provide a notice in accordance with section 2-71-14
within the time stated in the written acknowledgment; and
(2) Disclose the requested record within five business
days after providing notice or, when applicable, after receiving
a prepayment under section 2-71-19; except where the agency is authorized
to disclose incrementally under section 2-71-15.
(d) When a unit of an agency receives a request for
a record that should have been otherwise directed to another unit
of the same agency for a response, the unit receiving the request
shall promptly forward the request to the head of the unit's department.
(e) When one unit of an agency forwards a request
to the head of that department, the duties of this section do not
commence until the head receives the request.
(f) When an agency receives a request for a record
that it does not maintain and reasonably believes that another agency
maintains the record, the agency receiving the request shall provide
a notice in accordance with section 2-71-14(c)(1).
[Eff FEB 26 1999 ] (Auth: HRS §92F-42) (Imp:
HRS §92F-11)
§2-71-14 Agency's notice.
(a) When the agency intends to disclose a record in
response to a formal request, the agency's written notice to the
requester shall state:
(1) The location where the record will be made available
to the requester in accordance with section 2-71-18;
(2) The following information about fees, if applicable:
(A) A good faith estimate of all fees that will be
charged to the requester under section 2-71-19;
(B) Whether a requested waiver has been granted under
section 2-71-32; and
(C) The amount of prepayment required, if any.
(3) Instructions, if any, regarding any additional
arrangements that the requester must make with the agency to inspect
or copy the records;
(4) When the agency will make the record available
to the requester under section 2-71-13; and
(5) A description of extenuating circumstances, if
any, under section 2-71-15, and, if it is the case, the agency's
intent to disclose the records incrementally.
(b) When the agency intends to deny access to all
or part of the information in the requested record, the agency's
notice to the requester shall state:
(1) The specific record or parts of the record that
will not be disclosed; and
(2) The specific legal authorities under which the
request for access is denied under section 92F-13, HRS, or other
laws.
(c) When an agency is unable to disclose a record,
the agency's notice shall state that the agency is unable to disclose
the requested record, or part thereof, because:
(1) The agency does not maintain the record, and the
agency may provide the name and address of another agency that,
as the agency reasonably believes, may maintain the requested record;
(2) The agency requires a further description or clarification
of the requested record in order to identify and search for the
record; or
(3) The request requires the agency to create a summary
or compilation of information from records that is not readily retrievable.
[Eff FEB 26 1999 ] (Auth: HRS §92F-42) (Imp:
HRS § 92F-11)
§2-71-15 Extenuating
circumstances; incremental disclosures.
(a) As used in this chapter, extenuating circumstances
exist when:
(1) The agency must consult with another person to
determine whether the record is exempt from disclosure under chapter
92F, HRS;
(2) The request requires extensive agency efforts
to search, review, or segregate the records, or otherwise prepare
the records for inspection or copying;
(3) The agency requires additional time to respond
to the request in order to avoid an unreasonable interference with
its other statutory duties and functions; or
(4) A natural disaster or other situation beyond the
agency's control prevents the agency from sending a notice or responding
to the request within ten business days.
(b) When extenuating circumstances are present, and
when the requested records are voluminous, an agency may, in good
faith, elect to make the records available in increments and shall:
(1) Send a notice in accordance with section 2-71-14;
provided that the agency may instruct the requester in the notice
to pay a specified portion of the estimated fees before the agency
processes each increment in lieu of making one prepayment under
section 2-71-19; and
(2) Disclose each increment within twenty business
days after either:
(A) The prior incremental disclosure, when receiving
one prepayment in accordance with section 2-71-19; or
(B) Receipt of each incremental prepayment required
under this rule.
(c) If an agency processes a request in increments,
the agency shall do so until:
(1) All requested records have been disclosed; or
(2) The requester abandons the request.
[Eff FEB 26 1999 ] (Auth: HRS §92F-42) (Imp:
HRS §92F-11)
§2-71-16
Requester's responsibilities; abandonment of request.
(a) The requester shall:
(1) Pay any fees assessed by the agency in accordance
with section 2-71-15 or 2-71-19, whichever is applicable;
(2) Make any arrangements with the agency to inspect
and copy the disclosable record as instructed by the agency's notice;
and
(3) If able, provide the agency with further clarification
or description of the requested record if so requested by the agency's
notice under section 2-71-14.
(b) The requester shall be presumed to have abandoned
the record request, and the agency shall have no duty to further
process the request, when the requester fails to comply with subsection
(a) within twenty business days after, whichever of the following
is applicable:
(1) The postmark date of the notice;
(2) The date that the agency made the record available
under section 2-71-13 or 2-71-15 if the requester was informed in
a reasonable manner as to when and where the record would be made
available.
[Eff FEB 26 1999 ] (Auth: HRS §92F-42) (Imp:
HRS § 92F-11)
§2-71-17 Segregation
of information in records.
(a) When information in a requested record is not
required to be disclosed under section 92F-13, HRS, or any other
law, an agency shall assess whether the information is reasonably
segregable from the requested record. If the record is reasonably
segregable, the agency shall:
(1) Provide access to the portions of the record that
are required to be disclosed under chapter 92F, HRS; and
(2) Provide a notice to the requester in accordance
with section 2-71-14(b) regarding information that is not disclosed.
(b) An agency shall segregate information from a requested
record in such a way so that it is reasonably apparent that information
has been removed from the record. An agency shall not replace information
that has been segregated with information or text that did not appear
in the original record.
[Eff FEB 26 1999 ] (Auth: HRS §92F-42) (Imp:
HRS §92F-11)
§2-71-18 Location of
disclosure; alternatives.
(a) The location where an agency makes a record available
to the requester for inspection or copying shall be where the agency
maintains the record or where the agency has accommodations for
inspection and copying.
(b) If access to a record is requested at a location
other than as provided in subsection(a), the agency shall make a
reasonable effort to accommodate the request so long as the record
is not the agency's only original record and the arrangement does
not unreasonably interfere with the agency's functions.
(c) When a requester requests that a copy of a record
be transmitted by mail, telefax, or other means, the agency shall
make a reasonable effort to transmit the copy of the record in the
manner sought by the requester; provided that the requester pays
all fees assessed under section 2-71-19 and the transmission does
not unreasonably interfere with the agency's functions.
[Eff FEB 26 1999 ] (Auth: HRS §92F-42) (Imp:
HRS §92F-11)
§2-71-19 Assessment of
fees; prepayment.
(a) When a person requests access to a government
record under part II of chapter 92F, HRS, the agency may charge
the requester:
(1) Fees for searching for, reviewing, and segregating
the record; provided that these fees shall be assessed in accordance
with this chapter; and
(2) Any other lawful fees.
(b) An agency may require a requester to prepay the
following before the agency begins the search for and review of
records in order to respond to a request for access:
(1) Fifty per cent of the total estimated fees for
searching for, reviewing, and segregating records when the estimated
fees exceed $30;
(2) One hundred per cent of the estimated fees under
paragraph (a) for other services to prepare and or transmit the
record; and
(3) One hundred per cent of the outstanding fees from
previous requests, including abandoned requests, in accordance with
subsection (d).
(c) The agency shall inform the requester of the requirement
to prepay in its notice in accordance with section 2-71-14.
(d) A requester is liable for and shall pay any fees
outstanding for services rendered by an agency to respond to any
previous or current request. Upon written request, the agency shall
provide an itemized bill of all fees assessed.
[Eff FEB 26 1999 ] (Auth: HRS §92F-42) (Imp:
HRS §92F-42)
§2-71-20 Public
access to disclosable records provided by a secondary source.
(a) An agency may make arrangements to have another
person serve as a secondary source of agency information; provided
that the agency itself does the following:
(1) Allows public inspection and duplication of any
disclosable government record that the agency maintains pursuant
to chapter 92F, HRS; and
(2) Performs, as necessary, any review and segregation
of a government record before providing the record, or a copy thereof,
to the secondary source for the purpose of making the record available
for public inspection and copying upon request.
(b) "Secondary source" means a person, including
another agency, commercial entity, or nonprofit organization, with
whom an agency makes arrangements to offer public inspection and
copying of disclosable information from government records of the
agency.
[Eff FEB 26 1999 ] (Auth: HRS §92F-42) (Imp:
HRS §92F-42)
§§2-71-21 to
2-71-30 (Reserved).
SUBCHAPTER 3
FEES FOR SEARCHING FOR, REVIEWING, AND SEGREGATING
GOVERNMENT RECORDS
§2-71-31 Fees
for searching for, reviewing, and segregating records; exceptions.
(a) When an agency intends to charge fees pursuant
to section 2-71-19(a)(1), the agency shall charge the following
fees, except as otherwise provided in subsection (b):
(1) For a search for the record, $2.50 per fifteen
minutes or fraction thereof;
(2) For the review and segregation of the record,
$5 per fifteen minutes or fraction thereof; and
(3) If applicable, the actual rate of charge, based
upon time expenditure, that is charged to the agency by a person
other than the agency for services to assist the agency in the search
for the record.
The agency shall not assess the first $30 in total
amount of the fees under paragraphs (1) and (2).
(b) For those agencies which, by statute, are required
to recover actual costs, in lieu of the fees set forth in subsection
(a), an agency may establish fees, by rule, that do not exceed in
their totality the actual costs incurred from searching for, reviewing,
and segregating of records. The fees may include:
(1) The actual time expended by personnel in performing
the search, review, or segregation of the record; and
(2) Where the information requested is part of an
electronic database or other electronic method of information storage,
the actual cost of:
(A) Modifications to existing programming capacity;
or
(B) Additional equipment or software used to search
for, review, or segregate the information.
(c) An agency that will establish fees under subsection
(b) shall submit, before initiating the chapter 91 rulemaking process,
to the OIP for review a copy of the rule, including any amendments,
setting forth the fees.
(d) No fees may be assessed by the agency under this
section for the search for, review, or segregation of a record when:
(1) It is not necessary for the agency to search for,
review, or segregate a record in order to permit inspection or duplication
of the requested record; and
(2) To the extent permitted by section 2-71-32, the
agency finds that the public interest would be served by a waiver
of these fees.
(e) An agency may waive the fees for any agency or
any federal or foreign government entity requesting access to a
government record.
[Eff FEB 26 1999 ] (Auth: HRS §92F-42) (Imp:
HRS §92F-42)
§2-71-32 Waiver
of fees when public interest served.
(a) An agency shall waive $60 of the fees that may
be assessed under section 2-71-31 when:
(1) The request for a waiver of fees is supported
by a statement of facts, including the requester's identity, in
accordance with section 2-71-12; and
(2) The agency finds that the waiver of fees would
be in the public interest pursuant to this section.
(b) A waiver of fees is in the public interest when:
(1) The requested record pertains to the operation
or activities of an agency; however, the agency shall not consider
the record's relative importance to the public in applying this
subsection;
(2) The record is not readily available in the public
domain; and
(3) The requester has the primary intention and the
actual ability to widely disseminate information from the government
record to the general public at large.
[Eff FEB 26 1999 ] (Auth: HRS §92F-42) (Imp:
HRS §92F-42)
§2-71-33 Fees
charged for records that will not be disclosed.
The agency may assess and collect fees for the search
or review of a government record in accordance with section 2-71-31
even if the requested record will not be disclosed in its entirety,
or a substantial portion thereof, if the agency reasonably believed
that the requested record would be disclosable before searching
for or reviewing the record. If the requester fails to pay the fees,
the agency may assess the outstanding fees in accordance with section
2-71-19.
[Eff FEB 26 1999 ] (Auth: HRS §92F-42) (Imp:
HRS §92F-42)
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