Hawaii declines requests for records on false missile alert
By CALEB JONES
Mar. 12, 2018
HONOLULU (AP) — Hawaii officials have repeatedly pointed to a low-level state employee and a breakdown in his agency's leadership as the main cause for a January missile alert that left hundreds of thousands of islanders thinking they might die in a nuclear blast. But efforts to find out more about what other top officials did that day have been stymied at the highest levels of state government.
Hawaii law says opening the government to public scrutiny "is the only viable and reasonable method of protecting the public's interest."
But for nearly two months, Gov. David Ige's office has refused to provide information requested by The Associated Press that could show how he and other officials handled the crisis.
Citing open records law exemptions, Ige's office has declined to release phone logs, text messages, instant messages and calendars related to the missile alert, even as the state moves forward with recommendations to implement a new missile alert system .
His office says it does not keep those documents.
"We are not aware of any state agency that maintains the governor's office cell/office phone records, instant messages or text messages," Ige's Senior Special Assistant Donna Fujimoto-Saka said in an email.
She also said Ige's office receives bills from the phone company, "but these bills do not contain any record of incoming or outgoing calls."
R. Brian Black, executive director of the Civil Beat Law Center for the Public Interest in Honolulu, says the governor's office is not being consistent with the spirit of Hawaii's open records law.
"There is ultimately a fear amongst many public officials of revealing any information, and so if they have the authority anywhere to withhold it, they will," he said.
The law center, which advocates for open government in Hawaii, had hoped Ige's administration would set a "top-down approach" to promoting transparency, Black said.
"They have done things in that regard, but this is not a great example," he said.
The AP sent a similar request for emails, phone logs and text messages to the Hawaii Emergency Management Agency, the department that sent the alert, on Feb. 5. It has not yet received any documents from the agency.
Hawaii isn't alone in its handling of records for cellphones, text messages and other modern forms of communication.
Accessing such documents is a problem "across all levels of government" in the United States, in part because many agencies lack policies and practices for storing, archiving and searching them, said Adam Marshall, Knight Foundation litigation attorney for the Reporters Committee for Freedom of the Press based in Washington.
"That can be really problematic, especially when they show what the government officials are doing in their official capacity," Marshall said.
Ige's office has agreed to release some documents requested by the AP, primarily emails that are subject to redaction, but has levied hefty fees to process them. An initial estimate of nearly $4,500 was given to fill a request for emails to and from the governor's staff on the day of the alert. A narrowed request for four senior staff members' emails was met with a roughly $1,500 fee.
The federal law for access to government documents allows fee waivers for journalists seeking information that has public interest. States also grant waivers but can charge for things like the amount of time spent searching, sorting and redacting information, leading to a patchwork of fees nationwide.
In Hawaii's case, the state's $60 waiver is often outweighed by its fees, especially for emails, Black said.
"The federal FOIA (Freedom of Information Act) is pretty good when it comes to fees and fee waivers," Marshall said. "But at the state level, it is certainly the case that prohibitively high fees discourage and in some cases entirely inhibit the production of public records to members of the news media."
Drawn-out negotiations for documents and slow responses from agencies also can diminish the information's value.
Among the criticisms of Hawaii's handling of the missile alert was the time it took to inform people there was no actual threat. Residents and visitors waited about 40 minutes before official messages from state agencies were sent to all points that received the initial warning.
If North Korea launched a nuclear-tipped ballistic missile, officials say it would take as little as 12 minutes to reach Hawaii after an alert goes out. The first word of the Jan. 13 mistake — a social media post from Hawaii's Emergency Management Agency — came about the same time as a real missile would have hit the islands.
The governor did not address the public until his communications team retweeted the emergency agency's social media cancellation several minutes later. Ige said he did not have the passwords to his social media accounts and has chosen not to use the platforms to communicate directly with the public.
State lawmakers' first opportunity to ask Ige about his role in the mistake was Jan. 19, when he appeared at a hearing . The governor answered some questions then left early.
At the time, Ige spokeswoman Cindy McMillian said only that the governor had other duties to attend to.
Responding to an AP request for Ige's calendar and phone records from that day, his office wrote : "The governor's personal calendar will be withheld because it is not maintained as a government record."
The office pointed to Ige's public calendar , which had no official business listed on the day of the hearing.
After a request for all documents showing the governor's official business that day, Ige's office last week emailed the AP two proclamations he signed Jan. 19: one declaring March 9 "Spread the Word to End the Word Day," referring to a slur for mental disability; and another naming March 21 "SBDC Day," after the Hawaii Small Business Development Center. It did not respond to follow-up questions.
Upon Ige's departure from the hearing, some lawmakers openly criticized him and asked him to stay.
"This is a national tragedy, and you're leaving in 45, 50 minutes," Rep. Gene Ward said as Ige walked out. "He's the one where the buck stops, Mr. Chairman."
Associated Press writer Audrey McAvoy contributed to this report.