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Tuesday, November 25, 2014         

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Professor told to pay $40K to see records

Providing invoices from legal work would take a year of work, UH gauges

By Rob Perez

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Wanting to examine the University of Hawaii's spending on private law firms, accounting professor John Wendell asked to see three years of legal invoices.

Wendell, a former New York government auditor, said he was shocked when the university told him how much he would have to pay to get the public records: nearly $40,000.

UH initially denied the professor's 2010 request, but subsequently changed its position after the state Office of Information Practices, the agency that oversees Hawaii's open records law, issued an advisory opinion saying the invoices must be released. The agency said, however, that confidential attorney-client information may be blacked out.

UH's Office of General Counsel, headed by attorney Darolyn Lendio, estimated that it would take about 2,000 hours to find the documents, review them and redact the confidential information from thousands of pages. That's the equivalent of one employee spending 250 eight-hour days, or a full work year, doing nothing but those tasks. The document search alone, UH estimated, would take 135 hours — the equivalent of about 17 work days.

And the school's projections actually underestimated the expected tab by a substantial amount. Lendio told the Star-Advertiser the estimates were based on processing a year of invoices, not the three years Wendell requested. The actual bill, had Wendell pursued his request, easily could have approached or topped $100,000.

Like other government agencies, the university is allowed under state law to charge reasonable fees to process a records request. But open-government advocates, who were interviewed before UH disclosed that its initial estimate was low, criticized the $40,000 in search and redaction charges as extreme, effectively blocking access to public documents.

"These cost estimates defy credulity," said Kenneth Bunting, executive director of the National Freedom of Information Coalition in Missouri. "None of it seems reasonable. It would be much simpler to tell the (professor) they are gaming the system, making things as difficult as possible and trying not to disclose the information that he sought."

Lucy Dalglish, an attorney and executive director for the Virginia-based Reporters Committee for Freedom of the Press, agreed that the initial estimate was ridiculous. Because Dalglish used to work for a law firm that handled university cases, she said she was familiar with what a typical invoice looked like. "I could see spending two or three days finding documents" — not weeks, she said.

Lendio, however, noted that the university followed guidance from OIP to develop the methodology for arriving at a cost estimate. A UH attorney actually timed how long it took to process some invoices, she added.

"We took this stuff seriously," Lendio said. "People are entitled to public documents."

But she said Wendell asked for an unusually voluminous amount of records that would require an attorney to "search, copy, review, redact and compile thousands and thousands of pages of information." UH included supplemental documents in calculating the cost estimate.

But Wendell's written request to UH and the university's initial written denial referred only to invoices, with no mention of supplemental records.

Lendio said the university stood by what she called "a very conservative estimate."

Because of concerns Wendell and other faculty had about UH's spending on outside counsel, Wendell said he requested the invoices to get a more detailed accounting.

The high tab that the professor faced had he pursued his records request — and that others presumably would face if they made similar requests — is seen by some faculty as a way to block public scrutiny of UH's legal spending. If need be, they said, the invoice system should be revised to allow for easier public access.

"UH has essentially ensured that there will never be transparency if their billing statements do, in fact, contain detailed attorney-client information," said Susan Hippensteele, a lawyer and head of the Manoa Faculty Senate.

Wendell added: "The university administration wants autonomy but not accountability. It's as simple as that."






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