BY BEVERLY ANN DEEPE KEEVER – Shortly after taking office in 1987, Gov. John Waihee, the nation’s first governor of part-Hawaiian ancestry, appointed a committee that laid much of the foundation for Hawaii’s landmark law governing public access to records of state and city/county agencies.
Now, 25 years later, Gov. Neil Abercrombie is on his way to becoming Hawaii’s most secretive governor since the inception of this landmark open-records law — and that includes governors of both parties during turbulent times. Abercrombie’s latest move toward secrecy is being made by initiating and pushing a bill in the Legislature that would confuse and delay the public’s access to government records and meetings.
Bitterly ironic, Abercrombie’s bill so sabotaging the public interest is being considered by the House Judiciary Committee on March 16—the last day of national Sunshine Week when we are all reminded that “sunshine is the best disinfectant” against governmental secrecy.
THE INNOVATIVE, UNIQUE OFFICE OF INFORMATION PRACTICES
The Senate-passed bill that the House Judiciary Committee considers on March 16 eviscerates one innovative and unique feature in the law that Waihee jumpstarted and signed into law in 1988: establishment of the Office of Information Practices (OIP).
The Legislature stated that OIP was intended in the long run “to provide a place where the public can get assistance on records questions at no cost and within a reasonable amount of time.” Since then, several states have followed Hawaii in establishing similar offices.
The Legislature also stated that OIP’s decisions and advisories were binding on government agencies; that includes the office of the governor who appoints the OIP director. Yet, shortly after he took office, Abercrombie was directed by OIP to release the names of judicial nominees; he refused even though his Democratic and Republican predecessors had done so. He then removed the head of OIP and appointed a more pliable director.
The names of the judicial nominees were eventually made public because the Honolulu Star-Advertiser brought suit in circuit court, which ruled that Abercrombie’s refusal violates that state’s open-records law. Historically executive-branch agencies at federal, state and city levels have often served as roadblocks to public access to the government records they hold.
The Legislature emphasized in 1989 that “a government agency dissatisfied with an administrative ruling by OIP does not have the right to bring an action in circuit court to contest the OIP ruling. The legislative intent for expediency and uniformity in providing access to government records would be frustrated by agencies suing each other.”
Now this long-standing expression of legislative intent making OIP’s decisions binding on agencies would be reversed if the Legislature passes S.B. 2858, S.D.1. That bill permits agencies to sue OIP rather than release records that OIP had directed it to disclose to the public.
This clear-cut expression of legislative intent also undercuts the misguided testimony presented by the Office of the Governor, the Office of Information Practices and nearly a dozen other state agencies supporting the Senate-passed version of S.B. 2858, S.D.1.
Yet reading all of these testimonies posted on the Senate web site showed that not one state agency gave one reason why they needed to appeal to the courts or why they failed to follow the past practice of seeking legislative changes that would satisfy their needs for nondisclosure of certain records.
These executive-branch testimonies are misguided and inaccurate in stating, as the Governor’s office did: “There is some question as to whether agencies can file a similar appeal from an OIP decision that directs an agency to disclose a requested record, in the circuit court.” The legislative history is crystal clear: there is no question or ambiguity; OIP cannot be sued by an agency reluctant to release its records to the public.
If the Committee passes and the Legislature enacts this bill, I wrote in testimony for the House Committee, it will prove disastrous in these foreseeable ways:
- the Legislature will be abdicating its responsibilities to define public policy on this vital issue, thus reversing the legislative intent expressed 23 years ago that has stood the test of time;
- Enacting this bill will diminish and fragment the authority of the OIP, provide fewer assurances with its limited resources of its being able to serve the public and undercut uniformity and efficiency in government;
- Enacting this bill will create confusion and delay and waste taxpayer monies by allowing government agencies to sue each other at a time when agencies are strapped for resources to provide even essential services to the public;
- Enactment will unnecessarily give rise to cases in the court system that is already overburdened deciding critical social, economic and criminal issues.
THE SUNSHINE LAW ON OPEN GOVERNMENT MEETINGS
Misguided confusion also arises in the second part of this bill, the so-called Sunshine Law on open meetings in Hawaii Revised Statutes Chapter 92. This Chapter was enacted in 1975 in the aftermath of the Watergate scandal when citizens were demanding more accountability from and access to government meetings. It predates by decades the establishment of OIP but the Legislature later directed OIP to administer it.
Confusion arose in 2005 when Kauai County brought an action in court against OIP to invalidate an OIP
decision that directed the Kauai Council to disclose a redacted version of executive (closed) meeting minutes.
OIP looked to the Open-Records statute and argued in part that it could not be sued. The circuit court looked to the open-records statute, specifically HRS 92F-12(a)(7) stating that the County was required to disclose “minutes of all agency meetings required by law to be public.” (Emphasis added).
But, the Court ruled, the “law” to be followed was to be found in Chapter 92—the Sunshine Law. For four years, the case wended through the courts until 2009 when the Hawaii Intermediate Court of Appeals ruled that OIP had erred in following the open-record statute. Instead, the Court held, OIP should have examined the more specific open-meetings statute, which states any person can bring a court action and that includes government boards.
The Court held that OIP’s decision to redact attorney-client portions of this closed-door meeting was impractical because most of the conversation during the session between council and county attorney concerned legal matters pertaining to the council’s powers, duties, and immunities, as is permitted in the Sunshine Law.
IMPORT OF COURT RULING ON S.B. 2858
The result for this bill: all the portions of this bill on Chapter 92 are so unnecessary and cumbersome that they will deter the public from timely access to government decision-making and should be deleted.
With OIP now being aware of this case law, the Legislature should forestall any future confusion and potential lawsuits by adding a new provision in the Sunshine Law that echoes and paraphrases the clear intent the Legislature declared in the open-records law:
“The Legislature wishes to emphasize that a government board dissatisfied with an administrative ruling by OIP does not have the right to bring an action in circuit court to contest the OIP ruling. The legislative intent for expediency and uniformity in providing access to government meetings would be frustrated by agencies suing each other.”
Certainly Abercrombie’s bill dimming public access government records and meetings should be switched off during this Sunshine Week—and throughout this entire legislative session.