Editor’s Note: This is the first of two columns on how Hawaii’s open record law is being flaunted by government agencies and what the Legislature should do about it.

There’s something terribly wrong in Hawaii when it comes to public records — and it’s time something is done about it.

Consider:

  • The head of the Office of Information Practices was fired by Gov. Neil Abercrombie after issuing an opinion he didn’t agree with. When Civil Beat and the Honolulu Star-Advertiser appealed his refusal to release the names of judicial nominees as she had said was required under the law, the new director said it would be “futile” to issue another opinion.
  • The Honolulu Police Department has kept the names, salaries and job titles of its officers secret for about a year, even though the law clearly requires that such information be made public except when it involves current and former undercover officers. Mayor Peter Carlisle refuses even to address the issue.

In these cases, two of Hawaii’s most powerful politicians essentially are saying: “Sue me.” Their message to other government officials, including in their own agencies, is clear: “You don’t have to listen to what the Office of Information Practices says.”

Don’t believe me?

The attitude is pervasive.

The Star-Advertiser recently reported that a University of Hawaii professor was told by the university’s legal office that he couldn’t see invoices for private attorneys — in other words, how the state was spending tax dollars. Then when the Office of Information Practices said the records should be public, the university said he would have to pay nearly $40,000 for copies.

The Office of Information Practices, the state agency charged with acting in the public interest and enforcing the state’s open records law, is a paper tiger.

State and county agencies can ignore its opinions with impunity — with only the possible threat of embarrassment by exposure in the media as a stick. And even if agencies ultimately decide to go along with OIP, they can make records all but unobtainable by charging a ridiculous price for them, the way the university did to the professor.

That’s not the way it was supposed to be when the Hawaii Legislature created the agency in 1988, nor is it consistent with the spirit of the state’s open records law.

The Senate Journal conference committee report on the Uniform Information Practices Act (UIPA) in 1988 said the House and Senate have a “shared view that an open government is the cornerstone of our democracy.”

It went on to say that the OIP is “intended to provide a place where the public can get assistance on records questions at no cost and within a reasonable amount of time.”

A fair question is whether that’s happening today, 23 years after the law was established. In other words, is the public agency charged with acting in the public interest when it comes to government records effective at fulfilling its mission?

The answer from Civil Beat, after more than a year and more than 100 records requests under the UIPA, is no.

It’s worth reading the language of Hawaii’s public records law with regard to the role of the OIP.

§92F-15.5 Alternative method to appeal a denial of access. (a) When an agency denies a person access to a government record, the person may appeal the denial to the office of information practices in accordance with rules adopted pursuant to section 92F-42(12). A decision to appeal to the office of information practices for review of the agency denial shall not prejudice the person’s right to appeal to the circuit court after a decision is made by the office of information practices.
(b) If the decision is to disclose, the office of information practices shall notify the person and the agency, and the agency shall make the record available. If the denial of access is upheld, in whole or in part, the office of information practices shall, in writing, notify the person of the decision, the reasons for the decision, and the right to bring a judicial action under section 92F-15(a). [L 1989, c 192, §1]

This language clearly gives the OIP the power to order government agencies to make records available. Yet, that power isn’t being wielded today, at least in part because of a 2009 Hawaii Intermediate Court of Appeals decision. That case involved not just the UIPA but also the open meetings law, known as the Sunshine law, which doesn’t give the OIP the same strong powers as the open records law.

The result of the appeals court decision appears to be confusion — and a weakened OIP.

Cheryl Kakazu Park, OIP’s director, defends her office, but says she’s going to seek clarification of its powers from the Legislature next year. She says she sees agencies voluntarily comply with OIP advice.

“For the most part, they have wanted to comply,” she told me.

Maybe.

But it was Park who wrote that it would be “futile” for her to rule on an appeal of the governor’s rejection of requests for the names of judicial nominees.

Futile. Even though the language of the statute clearly says what should happen when OIP rules on appeal that a document should be public: “The agency shall make the record available.”

Something is terribly wrong with this picture.


Tomorrow: What should be done about the fact that the Office of Information Practices today is a paper tiger and the people of Hawaii have no recourse but costly and time-consuming lawsuits when dealing with government agencies that refuse to release public records .

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