Last week the office put out an update on Senate Bill 2858, which would create a path for state agencies to appeal in court decisions by the OIP.
Not surprisingly, OIP wrote that “the bill is a realistic and reasonable compromise.”
The problem with that view is that no matter what OIP says, the bill actually, as retired University of Hawaii Professor Beverly Ann Deepe Keever has repeatedly advised lawmakers, weakens OIP’s powers. And it undermines the intent of lawmakers who more than 20 years ago wrote the open records law.
OIP cites the support of the governor (who fired the previous OIP director after she issued an opinion he didn’t like), many departments, agencies and boards and open government groups.
But support is not uniform across government agencies. Take the City of Honolulu, for example. Managing Director Doug Chin submitted testimony opposing the bill.
“Rather than legislate deference to OIP advisory opinions in an appeal to Circuit Court, we believe the proper course would be for OIP to promulgate rules for a fair and equal administrative process whereby both individuals and agencies are allowed to present information and argument to OIP.”
And therein lies the problem. OIP has never bothered to promulgate rules.
But the intent of the Legislature was clear, as Keever points out in her testimony:
“…a government agency dissatisfied with an administrative ruling by the 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.”
So, instead of going to lawmakers and asking them to clarify its authority as being exactly what the Legislature said it intended when it came to public records, the OIP has gone to lawmakers and asked them to adopt a weaker standard for public records, the same one that currently applies to the state’s open meetings law.
I am not sure why that is worthy of congratulations.
However, I am sure the lonely fight of a retired journalism professor is worth recognition.
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