Tag Archives: public records

Is a private email sent by a public official a public record?

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Kauai blogger Andy Parx (Got Windmills?) made an interesting comment in the discussion of the email from City Councilmember Tom Berg. I had clarified that the email came from a private email account and not his official council email. Andy responded:

I don’t think it matters if it was sent from a private email account- if it touches on the council’s business it is a public record.

Here’s why I don’t agree.

Hawaii’s law governing access to government records is found in Chapter 92F Hawaii Revised Statutes.

Here the statute’s deceptively simple definition of a “government record”:

“Government record” means information maintained by an agency in written, auditory, visual, electronic, or other physical form.

In a booklet providing guidance on the UIPA, the Office of Information Practices further explained:

OIP has interpreted “maintained” to mean information physically possessed or administratively controlled by an agency. An agency has administrative control over a record where it has the right to gain access to the record. For example, where an agency contracts with a private company and has the right to review the records held by the company under the contract, those records would be considered government records.

So back to the case of an email sent by a Hawaii official from a private email account. Is it a “public record?”

It doesn’t appear to fall under that definition of information “maintained by an agency” and therefore subject to public disclosure.

I’m guessing that may not be the end of the story. I hope readers will pile on with additional references.

Bill to limit consumer’s rights makes last-minute stealth move

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Thanks to KITV for calling attention to the last minute resurrection of a 2009 bill (HB 1212) that would strip the public of the ability to know the existence of pending complaints against licensed professionals. The bill died in conference committee last year, but was suddenly resurrected on Monday when House conferees were appointed.

The bad news is that the House conferees include Rep. Isaac Choy, who represents the Manoa area, is a CPA, a licensed profession that would get less public scrutiny if the bill passes, and has close ties to one of the bill’s key proponents.

Russel Yamashita, registered lobbyist for the Hawaii Dental Association, one of the primary backers of this bill, is the chair of Choy’s campaign committee, Friends for Isaac W. Choy, according to the campaign’s organizational report filed with the Campaign Spending Commission. The Dental Association has consistently presented testimony and lobbied for this and similar bills over several legislative sessions.

Yamashita’s lobbyist registration and Choy’s campaign committee share the mailing address of several businesses in which Choy reports an interest (see his 2008 and 2009 financial disclosure reports), including Manoa Consulting Group LLC, Isaac W. Choy CPA Inc., Ukumaruku Corp., and K H Choy & Associates.

I should disclosed that I consider Russel Yamashita a friend and have benefited from his advice on various issues, although I strongly disagree with his position on this question of consumer protection and information policy.

HB 1212 had a single referral to the House Judiciary Committee last year. Choy is the only House conferee who does not sit on Judiciary, so I’m worried that his appointment as conferee is a result of House leadership giving him an opportunity to push the bill towards final approval. This is not good.

Under current law, information concerning “an individual’s fitness to be granted or to retain a license” is considered private and confidential, except for records of complaints resulting in disciplinary action, and the “record of complaints including all dispositions.”

This bill, in its current form, would strip the “record of complaints” from the public record.

The problem here is that complaints take months, sometimes years to be investigated, so someone can rack up a long list of complaints before the first disciplinary action is finally taken. And a short list of complaints that result in actual disciplinary action may mask a much longer list of outstanding consumer complaints. Under the terms of this bill, the public would be left to fend for themselves without access to this key bit of consumer background.

And there’s more.

Here’s what I wrote last year at this time when HB1212 was sent to conference committee. Nothing has changed except that, this time around, it’s been a year since anyone has looked at the bill and the negative public reaction and detailed testimony in opposition has faded.

The Legislature is poised to take away the public’s right to know about the record of complaints against licensed professionals, including contractors, realtors, and others. The Senate adopted only minor changes to HB1212, leaving few differences to resolve in conference. Unless there’s a dramatic turnaround in sentiment, the House and Senate are going to take away a consumers ability to assess the records of these professionals and steer away from those with questionable records.

And it may be worse than it looks. The Office of Information Practices testified that the bill could prevent information about complaints from being shared with investigators and expert witnesses who are part of pending investigations, the Office of Administrative Hearings, and even with the licensing boards themselves. OIP described public information about complaint histories as an important resource for consumers.

Unfortunately, its testimony apparently fell on deaf ears.

Senator Les Ihara spoke against the bill last year, and the points he raised remain valid.

Testimony presented in 2009 is available online.

Questions remain after city discloses unaltered personal services contract list

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Well, well.

Credit where credit is due.

I received an email from the director of the city’s Department of Human Resources yesterday afternoon (Thursday) with the quarterly list of personal services contracts for quarter ending Sept. 30 attached. It was delivered well within the 10-day response period provided, and the report was complete with the names of those holding these employment contracts.

So the Hannemann administration apparently didn’t hesitate to provide the report.

Now the situation gets murkier.

Here’s a link to the listing provided by Human Resources yesterday, minus the cover letter that transmitted a copy to the City Council last month.

And here’s the link to what should be the same document as entered into the city’s Docushare system which tracks public records. This version includes the cover letter from Human Resources Director Ken Nakamatsu, which has been duly stamped and filed as Department Communication 839.

Here’s where we hit the problem. The document entered into Docushare as Dept. Com. 839 is not the same document received and stamped as #839, as the names of those receiving the contracts have been deleted without notice.

And the immediate questions–Why are the names deleted? Who is responsible? On what authority was this being done? And, perhaps more importantly, now that the issue has been identified, what is the city going to do about it?

At this point, the City Council appears to be responsible for deleting the names from the report before it is filed with the City Clerk for entry into Docushare.

Another question follows–if this regular report is being altered without notice each time it is prepared, then are there other documents that are being similarly tampered with before being made public?

There’s a serious issue of public trust involved here. The Docushare system appears to provide the public with direct access to city records but, at least in the case of this quarterly report, what the public sees is not actually the official record.

Earlier, I questioned whether secretly altering or tampering with the report is legal.

State law (Section 710-1017 HRS) makes defines the offense of tampering to include:

(a) The person knowingly and falsely makes, completes, or alters, or knowingly makes a false entry in, a written instrument which is or purports to be a government record or a true copy thereof;

As the legal commentary to the statute notes:

This section is intended to penalize conduct which undermines confidence in the accuracy of public records. The accuracy of public records is essential to efficient public administration and, beyond the immediate context of public administration, the government has an interest in protecting public confidence in its records.

Putting that aside, though, now the issue is whether the council and the administration can work together to resolve this matter and assure the public that the public records we see are the real deal and not secretly altered replacements.

And, beyond that, there’s the substantive question of whether the reporting of personal services contracts raises any issues of favoritism or other hiring irregularities. I haven’t had time to fully review the unredacted document, but I let me know about any questionable things you might find, if any. You can email me, ian(at)ilind.net.

Tuesday (3)…City’s Docushare system is a resource for online sleuthing

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jOne of the regular stops on my online document checks in the Honolulu City Council’s Docushare system, which manages public documents that flow through the city.

The Docushare system is way ahead of anything offered by the state in terms of the breadth of documents it contains and the relative ease of use.

I usually start with the current department communications (click through Legislative Branch Collection–2009–Communications 2009–Departmental Communications 2009), where quite often there are interesting things tucked away. You never know what you might find, which makes it interesting.

There’s a drop-down menu at the top of the document listing which allows you to choose the latest documents, which are filed in order of the numbers assigned.

For example, in the list of documents # 721-740, you’ll notice a common feature–notices of Unbudgeted temporary positions. There are five such requests among these 20 documents.

Given the way that “temporary” positions can morph into perpetually renewed “temporary” jobs, contrary to the way such things are supposed to work, these unbudgeted temp positions can be significant and are worth wading through.

How about the “Energy Consumption Report” filed for the prior fiscal year, showing total use of electricity, diesel, gasoline, biodiesel, and propane for each city department? I’m sure there are stories buried there.

Backtrack a bit and you can peruse Miscellaneous Communications, which includes testimony submitted to the city council on pending bills. It’s an easy way to see what’s “hot” at the council.

The Docushare system can also be searched using the search box displayed at the top of each page. I searched for “Ian Lind” in the 2009 communications and one document was returned, a letter regarding rail that cited this blog using my name. Repeating the search to look through other years came up with several other documents.

I often use this to look up information about our neighborhood, specific issues or topics, and people or companies that I am backgrounding. It’s a great resource.

Of course, there are more focused sets of documents. Council agendas and minutes for the full council and its committees, internal Council communications, messages from the mayor, there’s even a section for “Petitions”, also worth browsing.

The system takes a little getting used to, so I recommend browsing it from time to time and getting a sense of what’s available.