“In a democracy, the people are vested with the ultimate decision-making power. Governmental agencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public’s interest. The legislature declares that deliberations, decisions, and action of governmental agencies – shall be conducted as openly as possible.” — Hawaii’s Sunshine Law
Hawaii’s government boards and commissions are required to inform the public about the times, locations, dates and agendas of upcoming meetings. The practice is considered a cornerstone of democracy, according to the state Sunshine Law, passed in 1975. But for the public, gaining access to this information is not always an easy task, and government officials themselves seem confused about what is required of them.
For the more than 160 state boards and commissions, the law requires that meetings and agendas be available for “public inspection” – six days prior to the meeting – in three places:
Upon request, people also may receive written notice of the meetings, though there is no easy answer as to whom you contact for such notification.
The lieutenant governor’s office posts meeting notices on a bulletin board on the floor level of the chambers of the State Capitol building. It’s not clear where this information is required to be available at the offices of the boards and commissions holding the meetings.
There is also no oversight to ensure that meeting notices are being posted.
Last week the problem of lack of information for the public became evident when trying to examine the agenda of the Endangered Species Committee of the Department of Land and Natural Resources. While the group met all the requirements of the Sunshine Law as far as posting a meeting notice, it wasn’t possible to tell what the panel would be considering because there was no agenda posted online.
So Civil Beat contacted a number of departments, including the Department of Public Safety, the Department of Human Services, the Department of Transportation, the Department of Land and Natural Resources and the Department of Health to find out how their commissions and boards comply with the Sunshine Law.
After several hours of back and forth phone calls and emails, the answers were ambiguous.
Most departments weren’t aware, or didn’t understand, the requirement that notices and agendas be available for public inspection in the office of the board or commission holding the meeting.
At the Department of Public Safety, an employee answering the phone said, “I don’t think we do that,” and then referred questions to the public information officer.
Dan Meisenzahl, chief of communications at the Department of Transportation, wasn’t sure what the law meant in regards to such postings.
“I’m not sure exactly where it’s supposed to be, a website, a doorway going into the meeting. I’m not sure what it means,” said Meisenzahl. “I’m not sure how it was interpreted before, and I’m not sure how it’s being interpreted now.”
It’s murky. The Office of Information Practices wasn’t sure either.
“We don’t have any formal opinion on what that means, so we would just look at it from a reasonable interpretation,” said Linden Joesting, a staff attorney for the department. “It could be posted at boards’ offices or available when someone comes in and asks for it.”
The boards and commissions seem to develop their own protocols, according to public information officers who scrambled to find answers for Civil Beat.
Some post notices on individual websites, some do not. Some aren’t sure if they do. Some post past meeting minutes on websites, which the public can peruse to find out the date of the next meeting, though others don’t post any meeting minutes. Others post upcoming meeting notices in office buildings. And some said they post notices on the online state calendar – by far the most accessible and easy to navigate system.
The site lists all of the boards and commissions in one place. The online calendar shows all the meetings that are planned for the next six days, and shows all the previous meetings, usually with an attached agenda. Posting on this site is optional. It’s not required under the Sunshine Law.
In 2008, former Gov. Linda Lingle issued an executive memo requiring that all commissions and boards post meetings on the website. However, this was only effective as long as Lingle was in office. Gov. Neil Abercrombie has not made a decision on whether to continue the edict.
Lingle’s order was issued because “the public cannot easily obtain information on all board and commission meetings and misses opportunities to participate in them,” according to the memo.
Many boards and commissions do post the meetings on the websites, but there is no way of telling how many. A search by Civil Beat showed many boards and commissions had no meeting notices for this year – some may not have met, others may not have posted.
When Civil Beat pressed for more precise answers as to how the boards and commissions were complying with the Sunshine Law, questions were referred to Gov. Abercrombie’s spokeswoman, Donalyn Dela Cruz.
An email from Janice Okubo, communications director at the Department of Health, read: “All Board and Commission meetings are posted with the Lt. Governor’s Office. Please contact Donalyn Dela Cruz … if you have questions about this.”
The attorney general’s office, tasked with enforcing the statute, also referred Civil Beat to Dela Cruz.
“I think the administration wants to answer this question themselves. So I’m referring it back to Donalyn,” said Josh Wisch, special assistant to the attorney general.
Civil Beat asked the Department of Human Services when an advisory board for children’s Medicaid benefits was to meet, and when it had met in the past. While the department said that all the meetings were posted on the state calendar, there were no notices of any meetings this year. Maybe it never met.
Joseph Perez, spokesman for the Department of Human Services, couldn’t say when they had met or when they were going to meet, and referred the question to Dela Cruz.
He subsequently emailed Civil Beat, saying: “I’ll contact Med-Quest Division and find out about meeting history, and the next meeting scheduled. Please contact Donalyn Dela Cruz for general information about this story.”
Dela Cruz said that Gov. Abercrombie hadn’t made a decision on whether to continue Lingle’s policy of requiring commissions and boards to post to the online state calendar. She also noted that many members of boards and commissions were either newly appointed or yet to be appointed.
Dela Cruz said that the administration, in conjunction with its chief information officer, was in the process of coming up with a plan to make such information more accessible to the public.
“Currently what this administration is doing is looking at ways to work with the chief information officer, to one, notify the public when there is a meeting, and two, for the public to come to the state website to see when boards and commissions are meeting,” said Dela Cruz. “That’s our goal, to make it a lot easier for people to post and locate [meetings].”
There is no oversight as to whether the state’s boards or commissions are posting their meeting notices and agendas in accordance with the Sunshine Law.
“There’s nothing in the law that tasks anybody with oversight,” said Joesting of the Office of Information Practices. “But certainly our office responds to complaints and questions by agencies and the public.”
She said recently the Office of Information Practices had been receiving questions about why there wasn’t a requirement to have electronic postings. She said it was something that the office would consider, but right now it wasn’t part of any proposed legislation for next year.
Dela Cruz said that the governor’s office may push for such legislation, as well.
The attorney general’s office is tasked with enforcing the Sunshine Law, and according to the statute the state’s circuit courts shall have jurisdiction to enforce the provisions by “injunction of proper remedy.” Members of the public can also bring a lawsuit to force departments and commissions to comply with the law. Government officials who willfully violate the law can be found guilty of a misdemeanor, and if convicted, be removed from office.
Asked whether there had been any past enforcement actions related to the Sunshine Law, the attorney general’s office referred Civil Beat to Dela Cruz.
Dela Cruz provided this response via email: “Policies are under review. You may want to revisit this during this session. If there are any updates, I will be sure to let you know.”