Musings: OPA Stone Walling

It was more moonlight than daylight when Koko and Paele and I went out walking on this most momentous day, when Venus transits the Sun. It will be webcast live from the Keck telescopes, and you can also get a lot of great info at A Darker View.

Yet even at that very early hour, the still, cool air was already vibrating with the sound of bees working the zillions of albezzia blossoms that formed a feathery white canopy overhead.

The latest political buzz centers around Gary Hooser's bid for a Kauai County Council seat. He quite ably served on that panel from 1998 to 2002, before going on to spend eight years as our one and only state Senator. After losing a bid for lieutenant governor, which in hindsight was probably a blessing in disguise, given the tenor of the Abercrombie reign, the guv appointed him director of the state Office of Environmental Quality Control.

And now he's back, and I'm already looking ahead two years, when he can challenge Mayor Bernard Carvalho. Not that Gary has confided any such plans, but it's not an unrealistic scenario, considering he's a slam dunk for the Council. The only question is who will be bumped off to accommodate him, and I'm wagering it won't be Nadine Nakamura, JoAnn Yukimura or Tim Bynum, who plans to file his re-election papers today.

Guess no one is going to challenge Ron Kouchi, who lucked out and won Gary's senate seat due to lack of competition after being voted off the Council. Ron's got to be vulnerable, and I imagine Rep. Jimmy Tokioka is, too, but face it: state Lege is a sucky job when you live on the outer islands and have to commute to Honolulu and hang out in the gritty city and deal with colleagues who think the world centers around Oahu.

In other matters, I've been having one helluva time trying to get some public records from the Office of the Prosecuting Attorney. Specifically, in my April 16 request I asked for :

1. All email correspondence between Shaylene Iseri-Carvalho and/or Jake Delaplane and/or Strategic Justice Partners LLC and/or Kirk Barrus from June 2010 to present. [Strategic Justice is the company that listed Jake as its agent and the OPA office as its address, and Barrus is its president.]

2. All email correspondence between Shaylene Iseri-Carvalho and the Kauai County Council/Mayor from Jan. 1, 2012 to present.

3. All Requests for Proposals for services related to Kauai Office of Prosecuting Attorney POHAKU program.

4. All signed contracts related to Kauai Office of Prosecuting Attorney POHAKU program.

5. All invoices and expenditures related to Kauai Office of Prosecuting Attorney POHAKU program. If invoices and expenditures are not specified as being related to POHAKU program, then all invoices and expenditures related to Kauai Office of Prosecuting Attorney from June 2011 to present.

Since I'm media, I have to go through County spokeswoman Beth Tokioka, who has been quite prompt and helpful in filling other OIP requests. She quickly replied:

I checked with Purchasing and there are no records for #3 and #4, and for the first sentence of #5.

That tell us a lot right there, in regards to Shay's failure to comply with the state procurement law. Over the course of several emails, Beth and I discussed ways to narrow my request so that it wouldn't be too onerous and expensive to fulfill, especially since I was asking for a public interest fee waiver. On April 30, which met the 10 business days deadline for responding, I got a formal acknowledgement from Beth, stating that in regards to items 1 and 2,

Agency must consult with another person to determine whether the record is exempt from disclosure under chapter 92F, HRS. Request requires extensive agency efforts to search, review, or segregate the records, or otherwise prepare the records for inspection or copying. Agency requires additional time to respond to the request in order to avoid an unreasonable interference with its other statutory duties and functions. 

Under law,  the county was supposed to inform me, within 20 business days:

Whether the agency intends (1) to disclose the record; (2) to deny access to all or part of the information in the requested record, identifying the portions that will not be disclosed and justifying the nondisclosure; or that the agency is unable to disclose the record for the reasons given. The notice will also include the agency’s good faith estimate of all fees that will be charged to the requester under section 2-71-19, HAR and the amount of prepayment required by the agency, if any.

OK, fair enough, it's a lot of stuff, and I know Shay has already claimed the fifth to avoid disclosing some of this same material to the Council. 

Then on May 15, I got an email from Jake, that he copied to Beth, Shaylene and Deputy County Attorney Jennifer Winn. In it, he referenced my original request and noted that only certain parts would be fulfilled. The materials to be withheld would be:

Emails and documents that contain information not subject to disclosure under the Chapter 92 HRS provisions.

However, the actual applicable statutes and agency justification for withholding would not be determined until they reviewed the documents, like they don't already know what's in them. And here's the clincher: To even get them to go look at those documents, so they could tell me they wouldn't turn them over, I would have to kick down:

Prepayment of fees and costs of $ 250.88 (50% of fees +100% of costs, as estimated below, spread throughout 4 incremental disclosures. Remaining 50% of fees ($156.50) due after each disclosure and before next increment will be provided.

Here's how they pulled figures out of the air, I mean, estimated the costs:

Fees: Search Estimate of time to be spent: 8 hours $ 80

($2.50 for each 15-minute period)

Review & segregation Estimate of time to be spent: 61 hours $ 1232

($5.00 for each 15-minute period)

Fees waived general ($30) X public interest ($60) 

Total Estimated Fees: $ 1252

Costs: Copying Estimate of # of pages to be copied: 1500 $ 377.50

(@ $ .50 for first 10 pages, .25 each page thereafter )

Total Estimated Costs: $ 377.50

***Note to requestor: The fees outlined above represent the total fees and costs associated with your request. The fees and costs will be spread over 4 incremental disclosures. The total payment required for each incremental disclosure will be $407.38.***

Such a deal. They weren't even going to charge for the magic marker to redact all the good stuff. Needless to say, I didn't bite. I emailed Jake, and copied Shaylene, that my request had been greatly narrowed, and his estimate did not reflect that. I got no word back. On May 18, I sent the following email, again copying his boss:

In the interest of simplicity, minimizing impact on OPA staff time and eliminating costs, I'd like to narrow my original request to the following:

#4 -- A copy of the OPA's contract with Strategic Justice Partners. 

#5 -- All invoices and expenditures related to the Pohaku program.

I am aware that Purchasing does not have any of these documents, so I'm looking for any of these documents that are on file in OPA's office.  I'd be glad to come in and look at them so no copying charges are generated. And since the scope of my request has been greatly narrowed, it seems that you should be able to review the documents in question and let me know if you anticipate any being withheld under HRS 92, and your justification for doing so.

Needless to say, I received no word back from Jake and Shay, even though they are required by law to respond with 10 business days. So I've turned the matter over to the Office of Information Practices, which this morning said they would be assigning the case to an investigator.

In the meantime, Beth fulfilled three other OIP requests I made, two of which involved email from OPA and others. Another, which involved extensive documents from Council Services, was also fulfilled, at no charge, and previously, the Planning Department fulfilled an extensive request, at no charge. I'll have future posts dealing with all of these.

So it's quite clear that Shay and Jake are trying to stonewall the release of public records — even if it means thumbing their nose at the law by blowing off my request. Once again, it's not the kind of example you want to see the Prosecutor's office set.