A public records case that fundamentally challenges Hawaii government’s tendency to work in the shadows is in the hand’s of the state’s highest court.

The Hawaii Supreme Court heard oral arguments Thursday in a lawsuit brought by Honolulu Civil Beat against the City and County of Honolulu after city officials denied access to budget documents and material that Honolulu Mayor Kirk Caldwell used to shape his spending plan for fiscal year 2016.

The budget memos outlined what each agency director — department heads, such as the police chief and the ethics director, among others — had asked Caldwell to include in his 2016 budget proposal along with their justifications for the expenditures.

The March 2015 records request was aimed at finding out what the departments considered to be spending priorities in order to compare those requests to what Caldwell ultimately proposed to the Honolulu City Council.

Left, Associate Justice Paula Nakayama raises questions during Civil Beat case with right,Chief Justice Mark Recktenwald, looking on. 1 june 2017
The Hawaii Supreme Court including justices Paula Nakayama, left, and Mark Recktenwald, is considering whether to change a government practice of keeping information used in decision-making confidential. Cory Lum/Civil Beat/2017

City officials, however, denied Civil Beat’s request saying that the records were subject to the “deliberative process privilege” and therefore should be kept confidential.

Civil Beat challenged the denial and in July 2015 a Circuit Court judge sided with the city. But the Hawaii Supreme Court agreed to take the case directly.

A decision invalidating or changing the privilege would have sweeping ramifications for government transparency in Hawaii, and potentially reverse decades of secrecy that bureaucrats and politicians have relied upon, possibly in violation of the state public records law.

“The biggest issue at stake here is the existence of the deliberative process privilege in Hawaii,” said Brian Black of the Civil Beat Law Center for the Public Interest, which represented Civil Beat in the case.

“On the federal level it’s considered one of the most abused and frequently referenced privileges to withhold records,” he said. “That’s consistent with my experience on the state level. It’s frequently used to exclude records that I think most of the public would agree should be public records.”

But government officials here have clung to the privilege, saying that they couldn’t do their jobs without it. They’ve even argued that it’s in the public’s best interest to keep information secret.

Duane Pang, deputy corporation counsel for the city, made this point Thursday, reiterating what he and others have written in court documents.

He said government officials need to maintain the privilege so that they can perform the public’s business in an “efficient and effective manner” without constant second-guessing by taxpayers and critics.

“The question is not really about the public’s interest in open government or the right to know,” Pang said during his opening remarks. “It’s rather a recognition of the struggle between two equally important government functions.”

City Attorney Duane Pang makes his oral arguments. Hawaii State Supreme Court. 1 june 2017
Duane Pang, deputy corporation counsel, said public disclosure of department heads’ budget requests could force the mayor’s hand. Cory Lum/Civil Beat

He said city officials, including the mayor, should not be forced to make decisions “in a fishbowl.” Doing so could result in a chilling effect on public policymakers that would further slow down government and make it less likely that officials will be candid with one another.

As justices peppered him with questions, Pang conceded that city officials redact information from records because they don’t want to open up the city to potential legal liability or regulatory fines from the state.

Pang also gave the justices a couple of hypothetical examples, specifically related to the city’s budget process.

If a the public learned that a department had asked for more building inspectors to respond to “safety issues,” for instance, or an agency wanted to install a new traffic calming device to cut down on speeders and reduce accidents, Pang said public sentiment could force the mayor to make a decision he otherwise might not make.

“If we disclose it prior to the mayor’s decision then he may be obligated to implement that safety (proposal),” Pang said.

Black argued that Hawaii lawmakers consistently refused to put the deliberative process privilege in Hawaii law, including when it created the state public records law, the Uniform Information Practices Act in 1988.

When lawmakers were drafting the bill, Black said, legislative history shows they specifically omitted the privilege and even declared that “discussions, deliberations, decisions, and actions of government agencies shall be conducted as openly as possible.”

Black said the privilege crept into use after the Hawaii Office of Information Practices — the agency charged with interpreting the state’s public records law — began issuing opinions citing the federal standard for the deliberative process privilege.

“On the federal level, under FOIA, people refer to it as the ‘Withhold-it-because-you-want-to exemption,’” Black told the justices. “Our Legislature never intended Hawaii law to follow federal law down this rabbit hole.”

Brian Black, of the Civil Beat Law Center for the Public Interest, walks into Supreme court to argue his case against the City and County. 1 june 2017
Brian Black of the Civil Beat Law Center for the Public Interest said Hawaii legislators never intended for there to be a deliberative process privilege to justify keeping government documents secret. Cory Lum/Civil Beat

The justices took a keen interest in Black’s argument about legislative intent, and whether lawmakers wanted to include the deliberative process privilege as an exemption to the public records law.

But they also latched onto the city’s arguments about whether there would be a chilling effect for making deliberations public, even if the information is released after a final decision has been made.

“Doesn’t that affect future decisions regarding what people will put in memos or requests if they know that it’s going to be public?” Associate Justice Paula Nakayama asked Black. “Wouldn’t it inhibit the free flow of ideas and decisions in the government?”

“There are policy arguments on both sides,” Black responded. “But I think the Legislature rejected those.”

“At the same time,” he added, “there are jurisdictions that do not have the deliberative process privilege as part of their public records law and they do not fall apart. They do not run into the situation where they are not able to conduct business.”

Associate Justice Michael Wilson pressed Black to give his own example of why the budget records being withheld by the Caldwell administration should be released.

Specifically, Wilson wanted Black to explain what “public good” was served by making the information available.

Black told Wilson that if the mayor includes $10 million for sewer or road repairs in his budget proposal it might appear “generous.”

But if the public knew that a department head told the mayor the city needed 10 times that amount to keep up with maintenance the conclusion would be much different.

“The public deserves to know when a department’s needs are going unfunded or underfunded,” Black said.

He also attacked the idea that city department heads — most of whom are cabinet-level appointees of the mayor — should be fearful of what the public might think of their budget proposals.

“Department heads are not shrinking violets,” Black said. “They’re key government officials. They are not people who should be shrinking away from the idea of public light. And these are not off-the-cuff remarks. These are things that were vetted internally for long periods of time.”

Disclosure: The Civil Beat Law Center for the Public Interest is an independent nonprofit organization created with funding from Pierre Omidyar, who is also CEO and publisher of Civil Beat.org. Civil Beat Editor Patti Epler sits on its board of directors.

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