Commentary – Good Citizen or “Vexatious Requester”?

Dear Damon,

When it comes to transparency in government, both the requesters and requestees would do well to remember Hanlon’s razor: Never attribute to malice what can be attributed to (what we’ll diplomatically call) misunderstanding, negligence, or incompetence. To do otherwise risks the kind of policy that threatens the foundations of transparent government … as the debate over HB1518 demonstrates.

When first introduced, HB1518 put forth a very worrisome proposal: state agencies could petition the Office of Information Practices to declare someone a “vexatious requester” based on the subjective determination that the requester was a nuisance who made excessive, repetitive records requests. Having been deemed an official irritant by the state, the vexatious person would have their rights to make records requests severely limited.

The problem, of course, is that what a state employee finds annoying, an ordinary citizen can view as “just doing their job.”

And the testimony on the bill made it clear that this ambiguity about what it means to be vexing was at the heart of the controversy over the bill.

While various state agencies attested that they had been subject to serious annoyance by repetitive and “harassing” requesters, defenders of transparency attempted to put the complaints in perspective.

Brian Black of the Civil Beat Law Center for the Public Interest showed that despite claims by UH and the Department of Agriculture that they had been “inundated” with requests that made it impossible for them to keep up with their workload (prompting the need for this law), both agencies were anything but overwhelmed. Black pointed out that of the approximately 18,000 requests fielded by all state agencies over the last three fiscal years, UH only had to deal with 42 non-routine (i.e. other than a transcript) requests and the Department of Agriculture had only 220 non-routine requests.

In other words, certain agencies seem to be vexed by any request at all.

Both Civil Beat and the Grassroot Institute pointed out that the law could be used to target the most common requesters–reporters, think tanks, researchers, and others working in the public interest. Not coincidentally, these are the people most likely to be critical of government. They’re also the ones most familiar with the ways in which agencies–whether through bureaucracy or inefficiency–can stall or obstruct a response, leading to the need for multiple requests. What an agency might call “vexatious,” an experienced researcher could simply call “trying to get the government to release the right information.”

There is good news, however, and a victory to announce. Many watchdog organizations urged the legislature to amend the bill to include due process for anyone in danger of losing their rights under the “vexatious requester” label. The committee listened, and the most current version of the bill requires the agency to plead its case for vexation to a circuit court. The burden is then on the agency to establish that the requester has abused the process established by the Uniform Information Practices Act before the court can limit the requester’s rights.

All of which means that government watchdogs can safely conduct their research of waste and corruption without worrying about being labeled “vexatious.” Though it’s no guarantee that the agencies involved won’t have plenty of other names for us.

E hana kakou (Let’s work together!),

Keli’i Akina, Ph.D.
President/CEO
Grassroot Institute

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