Hawaii’s UIPA/HAPA laws, which generally parallel the Federal FOIA/APA, offer our citizens the ability to actualize an important right, one absolutely critical to keeping a free society free, namely the right to know what their government is doing and why. Even though other worthy goals sometimes jostle with openness in government, such as privacy rights and non-interference with the legitimate functions of government, the bottom line is still that our citizens have a fundamental right to know, and that this is a presumptive right unburdened by any need to justify it.

But as with the Federal FOIA/APA laws, Hawaii’s UIPA and HAPA have not always realized their fullest potential. Yes, it’s true that individuals can bring action for injunctive relief in the courts if an agency wrongfully withholds public documents, but otherwise, our laws are basically toothless when it comes to enforcement. For example, there are no meaningful consequences if an agency wrongfully fails to produce requested documents, or fails to respond to a request within the prescribed time, or attempts to squelch requests by inflating fees to prohibitive levels.

The new Federal Open Government Act corrects similar shortcomings in the original FOIA by establishing mild sanctions for agency misbehavior. For example, it (1) prevents agencies from charging any fees at all if they miss their legally prescribed deadlines, and (2) allows plaintiffs to recover attorney fees and costs even if the government moots his or her cause of action by acquiescing at the eleventh hour and agreeing to provide the requested materials just before trial (the so-called Buckhannon Tactic, which leaves the plaintiff holding the bag for attorney fees and costs because the case is dismissed prior to a judicial finding). For Hawaii, similar amendments imposing consequences on wayward agencies that temporize or wrongfully deny access, would go a long way toward realizing the original intent and promise of our UIPA statutes.

The new Federal law also improves public access by:

• Expanding the no-fee status enjoyed by the “recognized media” to bloggers and other internet publishers;

• Establishing unique tracking numbers for FOIA requests that take more than 10 days to handle, and setting up a system to allow people to track the status of their requests on the internet;

• Providing for a ranking FOIA officer at each agency to improve responsiveness and accountability;

• Requiring agencies to regularly list its 10 oldest FOIA requests and publish other data to expose non-compliance, if any.

At the Federal level, the Open Government Act of 2007 remedies many of FOIA’s old weaknesses and brings hope anew to the original vision of greater openness in government and heightened citizen participation.

To the extent that Hawaii’s current UIPA statutes and system of administration suffer from many of FOIA’s old shortcomings, isn’t it time for us to consider a similar legislative overhaul, perhaps using The Open Government Act as a starting point? B.M. Middleton is with the Ala Wai Marina Community Association and can be reached at mailto:Middle001@aol.com

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