“Welcome to the website of the Office of Information Practices (OIP), which promotes open and transparent government in Hawaii…”

Taking the above words at face value, Friends of Lanai decided to ask the Office of Information Practices for help in prying loose some information on the status of the Big Wind industrial power plant targeted for Lanai, and here’s what happened.

First we tried to find out what was going on through the Public Utilities Commission, but the PUC told FOL they wouldn’t let us access information on the status of Big Wind because billionaire David Murdock (Castle & Cooke) could be “competitively harmed” if the terms and conditions of his holding back the rights to Big Wind were publicly disclosed, and that disclosure would “frustrate a legitimate governmental function.”

Lanai Anti-wind farm

Friends of Lanai has been opposing wind farms on the island for years.

Sophie Cocke/Civil Beat

 

Since to FOL’s knowledge no one had or has ever tried to “compete” with C&C to build an industrial power plant on lands C&C owned on Lanai, FOL believed that the issue of “competitive harm” was bogus.

Further, if anyone was “frustrated,” it was the public’s right to know.

So, in December 2012, FOL turned to OIP and filed an “information request” asking them to review the PUC’s decision and produce the requested information.

On July 24 — 31 months later — we finally got our answer from OIP: the PUC made the right decision, but OIP wasn’t about to tell us why. Here’s what OIP said:

“OIP finds that, because the redacted Wind Farm Terms concern Murdock’s retained rights to potentially construct a wind farm, it can be readily presumed that there is ‘competition’ with regard to all other possibilities where such a right is tentative and conceptual, and disclosure of the negotiated terms and conditions will likely cause substantial competitive harm.”

Now, if any of you savvy CB readers want to take a stab at what the above actually means, you can leave a comment below.

But there’s more: OIP admitted to having five ex parte (off the record) conversations between June 29 and July 20, with attorneys for Murdock, in order to get “oral explanations” from them about how Murdock might be “competitively harmed” by revealing the requested information. The substance of these five conversations then became part of “the record” upon which OIP based its decision.

Problem was, FOL was never notified these conversations were occurring, we were not informed why they were needed (since all OIP was supposed to do was review the PUC’s record and decision) and FOL was not told what was said, so we had no chance to offer a rebuttal or another point of view.

So on July 31 we filed another information request, this time to OIP, asking them to tell FOL about these conversations ASAP, so FOL could have access to the same “record” OIP had. After all, we only had 10 days (by August 7) from the date they sent us their decision (July 24) to ask OIP to reconsider.

We ask you, CB reader: how can we ask OIP to reconsider when we don’t know what was said in these secret conversations that caused them to make their decision in the first place?

Hearing no response from OIP and to play it safe, on August 6 — one day before the deadline — we asked them for 10 additional days to decide whether filing a motion to reconsider would be worthwhile.

At 12:25 p.m. on August 7, OIP responded to our information request, saying they did not “maintain notes of phone conversations” and they weren’t going to tell us what had been said from memory.

Then, at 6:29 p.m. on August 7, OIP sent us a letter by email denying our request for more time but said they’d be happy to give us 10 days to round up some reasons to reconsider, so long as we had already filed a timely motion to reconsider, which of course was impossible because the motion was due one hour-and-a-half before OIP wrote to us.

We think the Office of Information Practices needs a new name: the Office of Information Protected. OIP’s rules do allow them to talk to anyone they wish, and they don’t have to tell us, the Requestor, that they are talking with anyone.

But shouldn’t there be a fair, due process component to this practice? Shouldn’t they be “open and transparent” in their own process, and let the Requestor (in this case, FOL) know why they decided what they decided? Doesn’t transparency and openness in government call for both sides of a dispute having an opportunity to rebut/refute the other side’s positions?

I guess we’ll never know. For an agency that is charged with promoting “open and transparent government in Hawaii,” OIP has clearly been neither.

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