Stifling transparency and spin-doctoring the public doesn’t pay.

That may be a bitter lesson from Tuesday’s mayoralty election with its contentious focus on Honolulu’s multi-billion-dollar fixed-rail project and the string of lawsuits it has ignited.

Just how open future government meetings and records will be at all levels in Hawaii is scheduled for public discussion at a hearing Thursday, Nov. 15, 10 a.m. at the State Capitol Auditorium.

Virtually every Hawaii taxpayer and resident has a direct interest in the outcome of these rules, given the short-circuiting of public input and participation witnessed in the wasted resources and intellectual focus expended in the Superferry debacle and the continuing furor over the recently rammed-through Public Land Development Corporation.

The draft rules for public comment are proposed by the state’s Office of Information Practices (OIP). That office is responsible for administering and enforcing the state policy designed to ensure open government records and meetings at the state and city/county level so as to protect the public interest and promote accountability.

Hawaii residents and organizations interested in how open and accountable Hawaii’s governments will be in the future are encouraged to attend, bring copies of their written comments and urge amendment to OIP’s draft administrative rules that will have the force of law once a final version is approved by the attorney general and governor.

No E-Testimony

To speak up, persons must access the draft rules and accompanying impact statement by opening OIP’s web site at http://www.state.hi.us/oip/ and clicking on “What’s New.”

Surprisingly, OIP has not arranged for members of the public to submit testimony electronically like the Legislature does to facilitate sharing of all testifiers’ perspectives among themselves and the citizenry at large, although OIP has changed its web site for its own bureaucratic convenience and for creating form-generators for agencies.

OIP’s draft rules detail the intricate, step-by-step bureaucratic procedures to be used for processing:

  • Hawaii resident’s complaints about denial of records access or a violation of the open-meetings law (Hawaii Revised Statutes Chapters 92F and 92 respectively),
  • disclosure of certain written opinions of the Department of Taxation.

These draft rules also seem to grant the OIP director overly broad, unlimited authority to overturn OIP’s earlier formal opinions that provided uniformity for government agencies and boards and more transparency under previous governors.

Procedures Urging More Transparency Faster

Open-government advocates may testify for more transparency — and getting it faster — by urging OIP to amend its administrative rules in the following four ways.

First, new rules should make OIP responsible for handling complaints and appeals when government agencies fail to respond at all to requests for public records that should be disclosable within set timetables set forth either in the statutes or under earlier administrative rules in Chapter 2-71-13. Currently, some agencies are slow to respond at all.

Second, the new rules should call for public disclosure of all of OIP and agency actions regarding a denial of access of records or violation of the open-meetings law. OIP’s proposed rules are silent on granting more transparency, a surprising omission given that OIP was established to provide a place where Hawaii residents could turn for an expeditious, informal, no-cost process to assist them to get access to government operations needed to hold agencies and boards accountable.

Third, time limits on OIP for its own decision-making should be included in every procedure in the appeal process detailed in the proposed rules. Currently, OIP is slow in processing citizen complaints and appeals.

Fourth, the new rules should state explicitly that OIP’s procedures shall specify that the agency whose actions are being appealed has the burden of proof to show that its action is justified by an exception to the general rule of openness under the Hawaii’s open-meeting or open-records law, and thus must provide a substantive justification of its position to prevail in the appeal. Therefore, it should also make clear that the person making the complaint or appeal is not required to assume any responsibilities primarily because it is the policy of the state to conduct government business as openly as possible and provide a means to hold government entities accountable. This language needs to be included in the administrative rules to better inform the public about the issue at hand, to provide clearer guidance to the agencies as to their responsibilities, to delimit OIP’s prerogatives and to acquire the force of law.

New Draft Needed for Public E-Input

These and other changes to the draft rules calling for more transparency and faster access to it are regarded as being significant enough that OIP should be urged:

  • to submit a revised draft incorporating some, if not all, comments from the public,

  • or else to justify its refusal to include them,

  • to post the revised draft on its web site and

  • to enable posting of all public comments on this new revision (much like the Legislature accepts and posts all public testimony).

Rules for New Bureaucracy

These draft rules are precipitated in the aftermath of open-government advocates’ sustained but unsuccessful struggle during the last Legislature to block a bill that for the first time permitted a government agency to turn to Circuit Court to contest disclosing its record to the public that had been mandated under a ruling made by the OIP under Hawaii’s Freedom of Information Law (Chapter 92F, Part II).

Sponsored by Governor Abercrombie and OIP, that bill passed and became law. So, in case OIP is taken to court and must justify its position mandating disclosure of a government record, these rules create a new bureaucracy documenting its track record. But under the rules OIP is proposing, this new bureaucracy shuts out the very public that it was established to assist in protecting the public interest and insuring official accountability.


About the author: Beverly Deepe Keever is professor emerita of the University of Hawai’i’s School of Communications. Keever is the author of “News Zero: The New York Times and The Bomb.”

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