So here’s how it went this week.

First a Hawaii judge ruled the names of judicial nominees had to be public.

Then, the state Judicial Selection Commission came out with new rules that mean that no matter whether Gov. Neil Abercrombie appeals the court decision that went against him, the public will know the names of judicial nominees before the governor’s pick is ever sent to the Senate for confirmation.

Finally, the Hawaii Office of Information Practices weighed in.

Beware when you hear a government agency pat itself on the back. That’s when you want to look for what it isn’t saying. That’s certainly the case with the OIP’s latest pronouncement1.

“Rather than being tied up in one case that should be decided by the courts, OIP has been efficiently using its limited resources to address matters of equal importance to other members of the public and government agencies and has been creating new, proactive materials, such as continuing legal education courses, on-line video training, and agenda guidelines and workshops,” a press release from the office says.

Let’s grant the office one thing. Its training efforts are to be lauded.

But perhaps in the interest of transparency the office might want to have acknowledged that its previous director was fired over this very issue, after she issued an opinion the governor didn’t like.

Instead it makes it seem the world is working just as it should, with the new director wisely avoiding taking a stand against the governor by refusing to take a position on the issue.

The problem here: The OIP has a mission. (Just ask the people who were involved in its founding.) It needed to stand up to the governor.

To say the courts are the best way to resolve such disputes is to negate the very role of the OIP. Instead, the director seemed to be making an excuse for its silence, using the typical rhetoric of the beleaguered bureaucrat that staff is consumed with equally pressing matters.

But what could be as important as standing up on principle to the most powerful elected official in the state?

If the OIP isn’t going to stand up and be counted, it might at least spare us the sound of its own back-patting.


DISCUSION: What do you think about OIP’s approach to the judicial nominee issue? Share your thoughts below?

1.Date: November 17, 2011 10:57:09 AM HST
Subject: What’s New: Circuit Court Says Governor Must Release Judicial Nominee Names
Circuit Court Judge Karl Sakamoto orally ruled on November 14, 2011, that the Uniform Information Practices Act (“UIPA”) requires Governor Neil Abercrombie to disclose the names of the judicial nominees who were not selected for appointment to the Hawaii Supreme Court. Until Judge Sakamoto’s written decision is filed, the Attorney General has not decided whether it will appeal the ruling.
Although Judge Sakamoto’s rationale is not yet available, it appears that his reported conclusion is consistent with OIP’s conclusion in Opinion No. 03-03. In that 2003 opinion, OIP had concluded that the UIPA did not require the Governor to disclose the list of nominees prior to Senate confirmation because the judicial appointment process could be frustrated by political maneuvering and manipulation, but stated in footnote 9 “that the ‘frustration’ exception no longer applies to a List of Nominees maintained by the appointing authority after Senate confirmation” (emphasis added) because “there is no conceivable scenario in which disclosure [at that time] would frustrate the appointing authority’s ability to make an appointment.” Because this issue was addressed in an existing opinion, OIP declined media requests to divert its small staff resources to render another advisory opinion on the same issue that would ultimately be appealed and subjected to de novo judicial review. Instead, as OIP recommended, the Honolulu Star-Advertiser exercised its right to obtain expedited judicial review of the denial of its request for the judicial nominee list.
Rather than being tied up in one case that should be decided by the courts, OIP has been efficiently using its limited resources to address matters of equal importance to other members of the public and government agencies and has been creating new, proactive materials, such as continuing legal education courses, on-line video training, and agenda guidelines and workshops. About one-half of the spaces are still available for Sunshine boards to sign up for the Workshop Wednesdays to learn how to prepare meeting agendas and minutes, which begin on November 30. To register, please contact Dawn Shimabukuro at (808) 586-1400 or e-mail oip@hawaii.gov.

From: oip@hawaii.gov