The Office of Information Practices, the agency responsible for making sure state officials and agencies are complying with open meeting and public records requirements of state law, is looking for a new home.

Top on the wish list seems to be an administrative base where OIP can enjoy independence from undue political interference, and also minimize the inevitable conflicts that come from being part of state government while at the same time trying to hold state agencies and departments accountable.

Last year, the Legislature passed House Concurrent Resolution 121 requesting the Legislative Reference Bureau to assess the feasibility of housing OIP in the Department of Accounting and General Services for administrative purposes. LRB submitted its findings in a 52-page report prior to the beginning of the 2015 legislative session.

Office of Information Practices old pamphlet at the OIP offices located at No. 1 Capitol District Building, 250 South Hotel Street, Honolulu, Hawaii  96813.  5 jan 2015. photograph Cory Lum/Civil Beat

The Office of Information Practices is currently located at No. 1 Capitol District Building, 250 S. Hotel St.

Cory Lum/Civil Beat

Interference From Governor, AG

OIP is currently lodged in the lieutenant governor’s office, where it has been since 1998.

The need for change became apparent in 2011 when OIP was drawn into a dispute with then-Gov. Neil Abercrombie following his nomination of Sabrina McKenna to sit on the Hawaii Supreme Court. In announcing the nomination, Abercrombie broke from the practice of recent governors by refusing to disclose other names on the “short list” of finalists provided by the Judicial Selection Commission.

It was the most obvious example of external political interference in the work of the Office of Information Practices in its 27-year history, but certainly not the only one.

The acting OIP director at the time, Cathy Takase, advised the governor of OIP’s conclusion that he was legally bound to disclose the full list of candidates once the Senate had acted on the nomination. The governor still refused.

Just a month later, Abercrombie abruptly terminated Takase with one day’s notice, a move interpreted by most observers as being in retaliation for staking out a legal position contrary to the governor’s very public, and very controversial, stance. At best, it undermined the public’s perception of OIP as an independent watchdog. At worst, it confirmed public fears that the agency is routinely subject to the winds of politics.

It was the most obvious example of external political interference in the work of the Office of Information Practices in its 27-year history, but certainly not the only one.

OIP was created in 1988 and assigned to the Attorney General’s Office. This was awkward, legally and politically, because the attorney general might be called on to defend a state agency that OIP accused of failing to comply with open government requirements. The following year, its status was changed to be under the AG “for administrative purposes only,”  in an attempt to increase OIP’s autonomy.

However, OIP staff members complained at the time that despite being lodged in the AG’s Office “for administrative purposes only,” they were not given deference as the agency with the legal authority to interpret the sunshine and public records laws. For example, OIP was required to submit draft legal opinions for review and approval by a committee of state attorneys. In addition, OIP was subject to budget decisions made by the AG, which increased the agency’s sense of political vulnerability.

Finding a Home Not Easy

A decade later, the Legislature finally decided that something had to give. During the 1998 legislative session, it was openly recognized that the AG’s Office wasn’t an acceptable place for OIP because “the possibility of a conflict of interest may exist when the Department of the Attorney General is called upon to enforce the open meetings law and to defend a state agency.”

But finding a suitable new home proved difficult. Putting OIP under the Legislature’s direct control wasn’t seen as appropriate, moving it to the Judiciary raised constitutional issues of separation of powers, and no departments seemed eager to accept the host responsibilities. After all, OIP has never been on the best of terms with the Legislature, where “openness in government” is often a campaign slogan but not often a legislative priority.

Office of Information Practices Director Cheryl Kakazu Park speaks at informational hearing at the Capitol.  6 jan 2015. photograph Cory Lum/Civil Beat

Office of Information Practices Director Cheryl Kakazu Park speaks at an informational hearing at the Capitol on Jan. 6.

Cory Lum/Civil Beat

The Office of the Lieutenant Governor was selected as the new host entity for OIP “because the Legislature could not find another acceptable agency or branch of government to situate the office,” the LRB report concluded after reviewing the legislative history.

But there was a problem. The state constitution requires permanent executive agencies to be lodged in one of the principal departments “according to common purposes and related functions.”

The lieutenant governor is not one of those principal departments, so the Legislature had to do some fancy legal footwork by making use of an exemption for “temporary commissions or agencies for special purposes.”  Thus, the agency was moved over to the LG’s Office and redesignated “a temporary office for a special purpose.”

So despite the fact that OIP was established to provide an independent review of open government issues that could be relied on by the public as an alternative to litigation when government agencies revert to backroom dealings, the difficulty in finding a permanent home required that its status be reduced — on paper at least — to that of a temporary, special purpose entity.

Moving to DAGS Is ‘Feasible’

Last year’s concurrent resolution tasked the Legislative Reference Bureau with assessing the feasibility of moving OIP under the Department of Accounting and General Services, converting it to a permanent agency, and converting its staff to civil service status. Its report assesses whether various aspects of the proposed move are legal, and also notes non-legal policy questions that would be raised by such a move. LRB states directly that it was not asked to determine whether DAGS is “the most feasible department” for such a move, nor to offer an opinion on whether or not the move is desirable.

LRB found that there are no legal barriers to placing OIP within DAGS. It also found that the move would not increase the risk of conflicts. On a series of measures, over a number of years for which data was available, DAGS turned out to be solidly in the middle of all state departments in terms of the frequency it was the subject of complaints or inquiries. As a result, LRB concluded, DAGS “appears to be at average-risk in terms of the potential for conflict.”

OIP was established to provide an independent review of open government issues that could be relied on by the public as an alternative to litigation when government agencies revert to backroom dealings.

Further, LRB found that whether agency employees should fall under civil service rules is a policy question for the Legislature to decide rather than a legal issue. On the one hand, civil service status would tend to shield the OIP director and staff from threats of termination or retaliation in the event of another run-in with the governor or other powerful interest. On the other hand, the report found that none of the other agencies lodged under DAGS for administrative purposes provide their directors with civil service protection, and bringing OIP’s staff attorneys under the civil service would be “unique” because “there are no other attorney positions within the executive branch as a whole that are subject to civil service.”

Further, LRB reports that the current OIP director doesn’t  favor moving to civil service status, and instead believes salary parity with other executive departments is more important for employee recruitment and retention.

At least two bills authorizing OIP’s move to DAGS have been introduced in the current session. Sen. Gil Keith-Agaran introduced SB472, which has a double referral to the Committee on Judiciary and Labor, which he chairs, and Ways and Means. In the House, Rep. Calvin Say introduced HB986. It has not yet received a referral.

About the Author

  • Ian Lind
    Ian Lind is an award-winning investigative reporter and columnist who has been blogging daily for 15 years. He has also worked as a newsletter publisher, public interest advocate and lobbyist for Common Cause in Hawaii, peace educator, and legislative staffer. Lind is a lifelong resident of the islands. Read his blog here. Opinions are the author's own and do not necessarily reflect Civil Beat's views.