The Honolulu Authority for Rapid Transportation in 2013 spent $35,000 on a peer review that yielded fairly routine findings. Its attorneys kept the report secret for four years.

Civil Beat has been trying to get a copy of the peer review since early 2015, after we first found out about it during our investigation into the city’s over-budget rail project.

But HART officials kept telling us the documents were confidential, most recently denying a public records act request we submitted in April.

HART rail guideway car photo op Farrington Hwy Waipahu Sugar Mill train. 30 may 2017

HART has long been criticized for obfuscation, especially as costs ballooned to nearly $10 billion.

Cory Lum/Civil Beat

Just last week we finally got our hands on the peer review. We had to go out of state to the Utah Transit Authority, which was the agency that performed the study, to get the records.

This isn’t a story about a smoking gun to blow the lid off of Honolulu’s $10 billion rail project. The final report is actually quite mundane. (More on that later.)

This is a story about government transparency in Hawaii, and a city agency in HART that continues to face criticism for keeping both citizens and lawmakers in the dark about the largest infrastructure project in state history.

It’s also a story about the deliberative process privilege, an overused — and, some would argue, legally precarious — excuse officials rely upon to keep government documents secret.

HART officials refused to speak to us for this story. But in an emailed statement HART spokesman Bill Brennan said the agency’s lawyers believe the document should have remained private.

“Different agencies may arrive at differing conclusions as to whether to disclose a document or not,” Brennan said.

“HART made a good-faith determination that disclosure would frustrate its ability to discuss recommendations and make policy. UTA apparently decided otherwise for itself.”

Hawaii’s Tendency Toward Secrecy

Our quest for records began on Feb. 9, 2015. That’s the first time we asked HART for a copy of the UTA peer review through the state’s public records law.

It took nearly two months to get a response. Typically, the rules say officials have only 10 business days.

HART told us they couldn’t provide us with the peer review because it was “exempt from public access under the deliberative process privilege.”

That privilege is sort of a catch all for any documents the government deems “predecisional,” such as a draft or policy suggestion from a low-ranking employee.

The concern, at least among bureaucrats, is that making such information publicly available could have a chilling effect on frank government discussions.

Under that theory, people in government would be too worried about speaking their minds for fear of future criticism, ridicule and embarrassment.

This is an excerpt from HART’s first denial of our records request in 2015.

We asked again for the records in April of this year, one month after HART released a different peer review that was performed by American Transportation Association.

Our hope was that HART had had a change of, um, heart.

We submitted our new request on April 14. We got our official denial on May 4.

This time it seemed like HART was doubling down. The agency clearly wanted to keep this document under wraps.

HART’s explanation for invoking the deliberative process privilege was much more detailed. In addition to fearing ridicule, the agency said secrecy to avoid unnecessary confusion.

 

HART’s excuse for withholding records was so long it could not fit on just one page.

So we turned to Utah.

Civil Beat made its request on June 9, checking a box on the UTA’s official form saying that we’d like to get the records expedited because we’re a media organization. In less than a week — four business days to be exact — UTA had emailed us the documents.

No questions asked. No fees. No legal wrangling.

The media has a way to get access public records quicker in Utah than in Hawaii.

Fear Politicians And The Press

So what exactly was in the UTA peer review that HART felt needed to be kept secret? Not much really.

It was a total of 11 pages and reads more like a pep talk you might hear at a transit conference than a detailed analysis of a complex construction project.

The report urged Honolulu officials to build a cohesive vision for the project and to do a better job communicating with one another as well as with the hired contractors. The authors also warned of a lack of trust, and told HART officials that their administrative costs were about twice the recommended limit. Officials also needed to do a better job monitoring its vehicle contract.

Some of the greatest strengths of the project included “enabling legislation,” “community support,” “great leadership” and “adequate funding.”

The authors listed some of the weaknesses as having an “inefficient organizational structure” and a “lack of clarity of philosophy.”

Among the threats to the project: politicians and the media.

‘Openness Is Easier Than Secrecy’

We asked Brian Black, of the Civil Beat Law Center for the Public Interest, to review the UTA peer review report as well as HART’s denials of Civil Beat’s earlier requests.

Black is one of the most active lawyers in the state fighting for access to government records, and he recently argued before the Hawaii Supreme Court on behalf of Civil Beat that the deliberative process privilege does not exist in state law.

He said he was baffled by HART’s refusal to release the UTA records.

Brian Black from the Civil Beat Law Center presents oral arguments at the Supreme Court, Aliiolani Hale. 1 june 2017

Brian Black questions why HART officials felt it was necessary to keep a UTA peer review secret.

Cory Lum/Civil Beat

There was nothing in the records, he said, that was remotely embarrassing or controversial, especially given how the project and HART have fared in the public eye since 2013.

And what if there were explosive allegations in the report, Black mused. Shouldn’t citizens have access to that information given that it’s their money that’s building the project?

“This is the type of report that, whether it’s good or bad, is a reflection of how our government is working,” Black said. “Why should the public be kept in the dark about that? That’s a problem.

“The public is there to scrutinize the government because government is working for them. The government shouldn’t be antagonistic to that evaluation.”

He described the deliberative process privilege as a “black box” that officials here are overly reliant upon to keep their business out of public view.

Black said the difference between HART and the UTA’s handling of Civil Beat’s records request should give citizens pause, especially considering how freely the information flowed out of Utah without having any debilitating effect on government there.

“This just illustrates that openness is easier than secrecy,” Black said. “Secrecy requires justification and it requires a lot more paperwork.

“And in the end it doesn’t serve any true public purpose.”

Disclosure: The Civil Beat Law Center for the Public Interest is an independent nonprofit organization created with funding from Pierre Omidyar, who is also CEO and publisher of Civil Beat.org. Civil Beat Editor Patti Epler sits on its board of directors.

About the Author