donraymedia

The ‘FWR Catch’ has caught on in Hawaii State Government

In Executive Branch, Government Agencies, Hawaii State Agencies on January 14, 2009 at 8:50 pm

By Don Ray

It stands for “Formal Written Request”, as in “For you to get a copy of that completely public record document that’s in that file cabinet over there, you must submit a formal written request under the provisions of the Hawaii Open Records Act.”

Or, “You just want to inspect the document that our agency has already determined to be one that we must allow you to inspect? No problem, just give us a formal written request.”

I’m not exaggerating here.

“You’re asking me to tell you which person here in the Governor’s office processes and approves every request for out-of-state travel by every state employee? You say it may save us countless hours if I just answer one easy question? OK, we’ll research that only after you’ve submitted a formal written request.”

It happened. I’m not lying. It’s true. On my mother’s grave!

But it gets worse.

This is the beginning of an astounding journey. As absurd as this seem to me, at least, the attorney for the agency that’s supposed to assist members of the public in streamlining their requests for public records said she’d help, but ended up telling me that I would have to  —  I’m not kidding — submit a formal written request. Not to the Office of Information Practices where I brought my concerns — she wrote to me 24 hours later that I would have to submit a formal written request to the Governor’s office that explains whether I was asking as a private person or as a representative of Grassroot Institute of Hawaii.

Does it matter for whom I’m asking the question? Is it a matter of national security that Bill or Betty or Jack is the clerk to whom every state agency in Hawaii must send their requests for out-of-state travel requests for the Governor’s approval? Do the taxpayers of Hawaii need to employ full-time attorneys in a so-called consumer-assisting agency to tell a requester that he must submit a formal written request to get an answer to a question as simple as “To which desk should the state agencies send a particular form?

Can you imagine how long an airline or a bank would remain in business if a customer had to complete a formal, written request to ask a question as simple as, “Who handles new accounts?” Or, “Where do I go to find my lost luggage?”

Private businesses and corporations can’t afford this kind of bureaucratic nonsense. Why should Hawaii taxpayers have to pay for the salaries of employees who can rebuff simple questions from the taxpayers themselves? And even worse, when someone refuses to accept this ludicrous treatment and reports it to the watchdog agency that exists for the sole purpose of ensuring that information is available to anyone who asks, what else can an individual do? Take them to court, maybe? Is that possible? Would that work?

No, it wouldn’t work.

It wouldn’t work because the lawmakers left a gaping hole in their attempt to ensure accountability on the part of government at all levels.  Whether they knew its ramifications or not, the lawmakers handed the bureaucrats their golden “FWR Catch” on a platinum platter.

Here’s how it reads in “The Uniform Information Practices Act (Modified), Hawaii’s Open Records Law” brochure — a brochure, I discovered, is written for the government bureaucrats and not for the people of Hawaii:

“Page 30:

Informal Request

When an agency receives an oral request for a record, OIP’s administrative rules provide that the agency can:

(4) Ask the requester submit (sic) a formal request. “

The bold is not my bolding — it’s in the book that way!

Attention bureaucrats! Don’t let the word “formalslip past you! It’s your all-purpose ace in the hole!

There’s a back story to his incident that might add some context to all of this. The point that I hope it will make is this:

If a veteran journalist who wrote a book on public records — and who has decades of experience making public requests for records at all levels of government — can’t successfully get anyone from three state agencies to even answer simple “where do you keep the files” questions, then how can anyone expect anyone in Hawaii to be able to demand accountability of the people they pay dearly to employ?

Here’s a timeline of this whole debacle, so far:

Grassroot Institute of Hawaii  policy analyst Pearl Hahn, a recent graduate of a prestigious east-coast university, read the state’s open record statutes and submitted a request to the major state agencies.  She asked for documents that would would assist Grassroot Institute in creating a searchable, web-based database that would allow anyone to monitor the out-of-state travel of state employees. That was in early November.

By mid-December, I was on board here (from the Mainland) and getting up to speed. I was quite surprised that some of the agencies were estimating that it could take a half-month of a staff member’s time just to locate, isolate, edit, copy and mail the documents that Pearl had asked for. The price tag was going to be in the tens of thousands of dollars.

I did what any experienced public records requester would do, I tried to set up a meeting with one of the administrators who had responded with what seemed like a high estimate of preparation time. I decided that we should pay a visit to the Department of Agriculture. Why the Department of Agriculture? Because their estimates were among the highest of the agencies that had responded and, even more importantly, they’re right down the street from the Grassroot Institute’s office. Why waste a lot of time traveling?

That’s where things started going south. Pearl had paid a visit earlier to Keith Aragaki, the person who had responded to her request on behalf of the department. She had told me about his response, but I still had more questions. Hence the second visit.

He was in his office, but he was busy — too busy to see us without an appointment. That made sense. I asked the employee who had relayed his message to ask him if he could spare just three or four minutes in which I could ask a quick question or arrange a time for a meeting when it was more convenient.

She said that I’d have to submit a formal request to speak with him. I told her I’d write one up right then, right now. She said it would be better to send an e-mail request. I’m here now, I told her. I could easily write something now and she can hand it to him. I did, and apparently, she did hand it to him. She returned to tell us that he couldn’t talk to us now. I asked her to treat what I had written as a formal written request. At the same time, I asked her if she could provide me with a copy of the agency’s telephone directory listing. She said she didn’t have the authority to give that to me without a formal written request.

I wrote out a formal written request for her, handed it to her and asked if she could get that for me now. She said that she didn’t have the authority, but I believe she said, they would respond to my formal written request.

They never did, by the way.

We returned to the Grassroot Institute office where Pearl called Mr. Aragaki on the phone and politely apologized for any slight distraction we might have caused him. At the same time, I sent an e-mail to him that, among other things (I was polite, but direct in expressing my frustration), asked that he take 20 seconds simply to respond to my e-mail with a time and date that we could meet — again, for the purpose of discussing how we might find a way to get the information we were seeking without necessitating two weeks of employee time.

I never received a response from him by mail, by phone or by e-mail.

Next, I asked the people at the Office of Information Practices if they had the name and e-mail address of the public information officer at the Department of Agriculture. The person who answered didn’t know. I believe she directed me to the state’s website where I still didn’t find it easily. I got it from somewhere else.

I sent an e-mail asking for a telephone listing directory for the agency. The public information officer, Janelle Saneishi responded and told me that they didn’t have one, but there’s a phone directory on their website that doesn’t have the names of the people — just the phone numbers. She offered to print it out and then hand-write the names and fax it to me.

That seemed like much too much trouble. Besides, I wrote to her, I couldn’t imagine that every staff member at every desk wouldn’t have access to either a printed sheet or a computer listing of the other people in the agency. I also explained that I would like her help in getting Keith Aragaki to respond to my requests.

She somehow found the kind of phone listing I had asked for and e-mailed it to me.

In the meantime, I had called the Office of Information Practices to ask for advice on how to nudge the agency in the direction of cooperating with us. The attorney on duty said she’d call them and maybe straighten things out. I don’t know if Ms. Saneishi had heard from the attorney before she found the phone listing.

During the time we were awaiting a response from the agency, we paid a personal visit to the duty attorney at the Hawaii Office of Information Practices. She told us that we could, indeed, appeal to either OIP or go directly to court for an appeal — this based on our belief that the officials at the Department of Agriculture were in violation of the statutes because they had failed to respond to our formal written requests.

A week or so later, we had still not received a response to what was now several formal written requests. We paid another visit to the agency and were able to meet with Ms. Saneishi face-to-face. Her initial comments were that the agency had responded to Pearl’s original request for information and that, in essence, they weren’t going to “give us a discount.” Again, we explained that we weren’t looking for a discount — we were hoping to learn why the time estimates seemingly were so high and how we might be able to accomplish our goal in a more efficient manner. Eventually, she agreed to look into it on our behalf and give us a status report the following Monday. That was Monday, January 12.

I went alone in the late afternoon and chatted with Ms. Saneishi about the status of her promise to get information for us. She said she was very busy but would get to it soon. Later that afternoon, she sent detailed explanations of what went into the time estimates. She had also agreed to look into any records that her agency had that would indicate that Mr. Aragaki had responded to our subsequent formal written requests. She didn’t provide that information in her e-mails this week.

This week, I revisited the statutes as well as the website for the Office of Information Practices — I was determined to understand everything that the website provided. To my amazement and delight, I discovered an area of the website that they refer to as RRS. It stands for “Record Report System”.

I kicked myself for not knowing about this jewel of a tool sooner. I can’t tell you how impressed I was to discover that the state maintains this website search tool that allows the public to search for every type of form and file that every government office in Hawaii maintains. You can search by agency, by form number, by the name of the form — everything. I played with it for hours. It’s marvelous.

I called the public information officer from one of the other agencies to ask some questions about how effective this tool had been when other people had requested documents from his agency.

“I’ve never heard of it,” he said. He went to it for the first time based on my call. “Nobody has ever made reference to this,” he told me.

When I searched for documents using the term “travel” I found several common forms that every state agency uses in the process of approving out-of-state travel. The best part is that, in every case, the records were designated at completely open for inspection without the need for any clerical time removing personal information.

This is the way someone should approach the kind of search that we were attempting. You see, when you know the exact form, by name and by number, it’s much easier to make very specific requests for these documents. Indeed, if we had asked for these specific documents in the first place, the time estimate would surely have been reduced to maybe ten or twenty percent of the estimates we were receiving.

When I was able to see one of the blank forms on the Hawaii.gov website, I noticed that the form was the product of the State Procurement Office. That department’s web page provided detailed instructions on how each agency should have their people prepare the forms.

Finally, I had discovered what should be the goldmine of goldmines with regard to this already too-time-consuming request for information. I tried calling the Procurement office, but I got a recording. I didn’t want to wait for a return call, so I went directly to their office in the Kalanimoku Building across Punchbowl Street from the Capitol Building.

My strategy was simple and brilliant, I thought. Since the procurement people made the form and wrote the instructions, they might have the answer to the most important question:

Is there one clearinghouse where all of these particular travel approval forms either end up or pass through?

The person who was there for me was to become my heroine of the week — no, I’ll call her the heroine of the month.

Her name is Bonnie Kahakui. She’s a purchasing specialist there and she knows her stuff. What’s even better, she was willing to answer my questions without requiring me to submit a formal written request — at least not for questions about how the system works. She was willing to explain to me her agency’s role with regard to the form and she gave me permission to actually inspect the original forms that relate to the staff members of her department.

Since she would have to take some time to remove other sheets of papers in the files — documents that contained personal information about government employees, I’d need to write down some minimal information that didn’t even need to include my name. I could tell she was busy, so I asked if it would be better for me to come back another day when she could plan to pull the files and prepare them for me. She was happy to get back to her work. I’m looking forward to seeing what the completed forms look like.

You see, this is how one does the groundwork for a large-scale open records request. It’s important to know exactly what it is you’re looking for and where you might find copies of all of them in one place — or at least, a place where someone compiles a list of the documents when they pass through or eventually land.

To make a painfully long story a little less long, Ms. Kahakui, my heroine, surmised that the one place that every request for out-of-state travel either visits or lands is the Governor’s office. Recently, at least, every single request for out-of-state travel by any state employee must go to the Governor’s office for approval.

Ms. Kahakui didn’t know which desk processes the requests, but she agreed with me that someone in the Governor’s office must know. Then, as she and I discussed, I could ask that person if he or she keeps copies, logs the requests or knows who might have such a collection or listing.

After more than two months of frustration, I was so close to being able to find a solution to the problem. I was so very close to being able to tell all of the other agency officials that they wouldn’t have to process the requests they had already received, perhaps.

Not to be dramatic here, but I was thinking as I walked across the street to the Capitol, how much time and effort I might be able to save on behalf of the employees of the State of Hawaii and how much more efficiently they could do the jobs that they were there to do.

I entered the Office of the Governor with a big smile on my face.  The receptionist there greeted me with the same warmth that I imagine she greets heads of state. Her name is Kaui Alapa. When I asked her what Kaui means, she explained that her full first name is Kauiopuna and it means “beautiful spring.”

Alas, I’ve reached paradise, I thought. Here’s where I’ll find my information pot of gold.

She made a call on my behalf and soon Rachel Zane, executive secretary came out.

I didn’t ask her to show me a document. I didn’t ask her pull a file. I didn’t ask her to copy anything.

I asked her if she could check with someone and find out which desk in her office handles the travel worksheets that come there for approval by the Governor. Which person handles the SPO Form 30s in her office.

She said she was sorry, but that I would have to submit a formal written request.

I tried to explain to her that the answer to that simple question would certainly not take more than 30 seconds or a minute to determine, but a formal written request would involve a staff member having to write a letter and could take a week.

It doesn’t matter, she said. “You have to submit a formal written request.”

Oh, I tried to make my case, but I was destined to lose. Why? because Rachel Zane, executive secretary knows the loophole. Rachel Zane can play the card known as the “FWR Catch.”

Surely, I thought to myself as I walked dejectedly away, this is not what the law intended. This is not the spirit of the law. This is not public service.

I walked immediately to the Office of Information Practices and asked to speak to the attorney of the day. I had never before spoken to this particular attorney, but she was very polite. We both had to lean down so that we could talk under the protective glass that separates the public from the staff of the Office of Information Practices — Transparency Central, you might say.

She said that she would call the Governor’s office and see if she could clear things up. I offered my business card, but she declined. She only wanted my phone number. I coaxed her into writing down my e-mail address also. You see, donray@donray.com is pretty easy for folks to remember.

I asked her for the correct spelling of her name. She spelled it for me but immediately said, “Please don’t use my name.” I smiled.

“But you’re the duty attorney for the Office of Information Practices,” I said in a joking manner. If anyone should go on the record, it should be the staff attorney for the Office of Information Practices.”

I walked back to my office with mixed feelings. I was so happy that I had discovered that the State of Hawaii had put up one of the most impressive information-finding tools for its citizens — The Records Report System. And I had so enjoyed receiving assistance from a model public servant, my heroine of the month, Bonnie Kahakui.

Sure, I was disappointed that Executive Secretary Rachel Zine seemed more interested in serving people within her office than she was in serving the public. But heck, even executive secretaries in the Governor’s office sometimes forget who really butters their bread. Sometimes they forget who’s footing the bill for their jobs, their benefits, their holidays and for the prestige of working for the Governor of the State of Hawaii, the torchbearer of transparency and accountability.

A lot of state employees seem to have forgotten these details. They’ve forgotten about how lucky they are in such difficult times to have a secure job. They’ve forgotten that there are a lot of people out there who are struggling each day to survive, but they still pay their taxes. They still reach in their pockets to pay the people who are charged with the difficult task of keeping this great state running.

However, if they dare to ask a simple question of one of these public servants, they are likely to hear these words:

“You’ll have to submit a formal written request.”

As a postscript to this wordy odyssey, I submit to you the ultimate insult. It came as an e-mail this afternoon after I had almost completed an completely different blog entry — a more light-hearted and charitable version of my ordeal. Here’s the e-mail:

Dear Mr. Ray:
I  was unable to speak with Ms. Zane because she was out of the office today. The person I spoke with also could not readily identify the person who could respond to your questions, but believed that Ms. Zane was attempting to respond to your inquiry.  You may wish to call her and give her the opportunity to do so.
However, I was also informed by the office that there are already existing requests made for records by the organization you are working for and that the office has and is responding to those requests.  If you are making a request independent of that organization or if you are attempting to make a separate request of different records from those being produced by the Governor’s office, it would be less confusing and more expedient for all parties involved if you would explain this clearly in writing to the agency.

Very truly yours,
Cathy L. Takase
Staff Attorney

Office of Information Practices
State of Hawaii
No. 1 Capitol District Building
250 S. Hotel St., Suite 107
Honolulu, Hawaii 96813
Tel.: 808-586-1400
Fax: 808-586-1412
E-mail: oip@hawaii.gov
Web site: http://www.hawaii.gov/oip

Well folks, here we go again!

  1. Great post. Entertaining, informative, and infuriating. looking forward to more.

    • Hi Charley,
      Based on the calls and e-mails I’ve been receiving, one or two others have experienced their own sagas of “clouded transparency”.
      Thanks for the encouragement.

  2. Dig your blog and like the idea of setting something up for whistleblowers.

    Often times I get stories sent to me that people would rather leave their names off of them.

    Of course my blog doesn’t have much juicy stuff on it though.

    • Sometimes, the only way the real truth can get out is when honest government employees (99.99% fall into this category) can’t bite their tongues any longer. Once they realize that state law protects reporters who refuse to reveal their sources — even in court, they look for a trustworthy journalist and share what’s really going on. They can talk “off the record.” The journalist still bears the burden of having to confirm the information. Many of the most important changes in government have come as a result of whistle blowers and confidential informants. I like to refer to the latter as “deputy undercover investigative reporters.”

  3. That is a mighty high percentage of honest employees, Don, but I’ll chock it up to your generosity = )

  4. Pearl,
    I believe strongly in people. In another life, I worked as an undercover shopper at restaurants, bars, high-pressure sales apartment complexes, hotels, retail establishments and even on airline flights. Our clients were the owners, corporate heads and managers who wanted to know how things were operating when “the cat was away.”
    In the years I did that (moonlighting when I was, myself, a government employee by day), I discovered that people simply forget that they’re on display all of the time. Servers forget about the word “serve”. Flight attendants forgot that they’re there to “attend.” Bartenders forget that “tending” to customers is the most important task.
    Government employees are public servants. Once in a while, they forget that “the public” is their boss and that they are not merely there to “serve” their supervisors.
    Indeed, the biggest threat to their livelihoods is the supervisor — hence, they’re willing to “protect” the people to whom they answer, and give the benefit of the doubt to “protection” when members of the public ask for things that people rarely request.
    “When in doubt, withhold.” That becomes the mantra.
    However, the members of the public pay a contributing role in allowing these instances of non-cooperation to spread.
    I’m working on a primer on how people on our side of the public counter can encourage the civil servants on the other side to be more “civil” and to “serve” the interests of the public with as much passion as they “serve” their supervisors.
    While I’m putting this primer together, your assignment (and the assignment of any other readers who have read down this far) is to honestly answer this question:
    When the person across the counter at McJack’s 31 Flavored Kentucky Fried Fish Sticks Coffee House says, “Good afternoon. Welcome to Mc31 Coffee! May I take your order please” what are the actual words you say before you identify the thing that you order?
    I’ve been taking this survey for decades. You’ll be surprised at the most common responses. And then you may understand how, in a sense, it’s your own danged fault that you get a stale burger and cold, watered down coffee.
    What’s this have to do with the attitude and the cooperation of government employees?
    Everything.
    Oh, and, yes, this is a test and yes, it will be on the final exam.

  5. “The aim of public education is not to spread enlightenment at all: it is simply to reduce as many individuals as possible to the same safe level, to breed a standard citizenry, to put down dissent and originality.”

    -H. L. Mencken

  6. Good follow-up Don. From the first time I ran into you (1995) I knew you were the kind that digs in deep and does not let go.
    BTW, though this may change in the next year or two, I am still a government employee (different state). I think many of us specialise in red tape whether we think we do or not.

  7. [...] statute. I think a class action on behalf of all Hawaii residents might be in order. The FWR is nothing more than a bureaucratic hurdle set up to discourage the public from gaining ready [...]

  8. Hi I am new to the site I hope this is the right place to say hello.
    Anyway I am just saying hi http://www.homeinternetjobs.com.au/toplaptop.gif

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