Throughout 1997, the Occupational
Safety and Health Division charged
$11 to $18 an hour for records searches,
but the fee was not authorized

By Ian Lind
Star-Bulletin

The state Occupational Safety and Health Division overcharged for copies of public records during most of 1997, the program's administrator acknowledged this week.

The excess charges resulted from an unauthorized fee of $11 to $18 an hour for staff time spent responding to requests for records.

Division head Jennifer Shishido said no more than $1,000 was collected through the year, but the fees caused many people to drop their requests for public records.

Shishido said the fees were intended to cover the costs of responding to unusually complex and time-consuming requests for records, but those with more modest requests were also slapped with the added costs.

Shishido and Labor Department spokesman Pat Stanley initially told the Star-Bulletin the charges were authorized by a bill that passed the Legislature in 1996. The bill gave the occupational safety office authority to establish new fees by amending its rules.

Stanley said public hearings on the proposed new rules were held in October 1996, and the rules, along with the fees, went into effect in February 1997.

Stanley and Shishido were later shocked to learn the new rules did not include provisions for search fees. Their discovery came after the Star-Bulletin pressed for a copy of the applicable rule.

"I don't know what happened," Shishido said. "I was sure we had a rule. It's an 'ooops, got overlooked' type of situation."

Common Cause spokesman Desmond Byrne said people shouldn't be required to pay added search fees unless a very unusual request requires a research effort.

"People should be able to look at a company's records because government can only do a certain amount of necessary policing," Byrne said. "The rest of the policing has to be done by employees and the public to draw attention to violations of laws. That's one of the reasons we have public records, so the public can point agencies to this violation or that violation."

"The government shouldn't put up barriers to that, especially where health and safety are at stake," he said.

Byrne said the fees in this case should be refunded because they were collected without proper authority. Whether such refunds will be available remains unclear because, according to Shishido, the funds collected went into the state's general fund and were not retained by the Labor Department.

What the law allows

State law currently allows agencies to charge for copies of records provided to the public, but does not allow fees for pulling records from department files and deleting confidential information before copies are released.

The Office of Information Practices has proposed rules that would allow all state offices to charge similar fees, but its proposal has been stalled by a lengthy review process and is expected to face significant opposition when public hearings are held later in 1998.

OIP attorney Jennifer Chock said state agencies have been told they cannot begin charging for search and review of public records unless the proposal is approved by the Cayetano administration following public hearings.

OIP director Moya Davenport Gray said her office received two complaints about the Labor Department's fees from people who were "quite outraged".

Gray said she was unaware that the necessary rules had never been adopted by the department.

Gray said her office was not informed or consulted at the time about the Labor Department's 1996 fee legislation, a move perceived as an "end run" around OIP.

Don't want to pay

One impact of the fee was to discourage people from requesting public records, Shishido said.

"We were getting hundreds of requests for records," Shishido said. "But most people just don't want the information when they find out they've got to pay for it."

"The majority of requests were from companies out to make a dollar that want to direct their sales to companies in need."

For example, Shishido said a vendor selling safety railings might ask for records of all companies cited since 1972 for inadequate railings.

Responding to such requests diverts time and resources from safety inspections, Shishido said, and leaves workers and employers at risk.

One researcher complained that she was not informed of the fee in advance, but later was charged $2 for copies and an additional $15 for the search.

Shishido said her office has a library where much information is routinely available, and other records are now available electronically through the Internet.

For example, Shishido said computer users can now access a listing maintained by the federal Occupational Safety and Health Administration that includes all violations in Hawaii dating to 1972.