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The Hawaii Supreme Court issued a ruling Friday that overturns 30 years of successful attempts at government secrecy.
For decades, public agencies in Hawaii have withheld countless records from public view by saying they were subject to the “deliberative process privilege,” a vague term of art that legal experts say was often overused and abused.
A legal challenge from Civil Beat combined with the state high court’s ruling seems to unravel all that, saying that such a privilege never existed in state law.
“I’ve always said that I could retire if we won this case,” Civil Beat’s attorney Brian Black said with a chuckle. “This is a huge win for the public.”
The case stems from a public records request Civil Beat filed in 2015 to get access to budget documents used to craft Honolulu Mayor Kirk Caldwell’s spending plan for fiscal year 2016.
At the time, Caldwell told each department that it must submit a budget request to him for approval. He could either take or leave their recommendations.
Civil Beat asked the city to turn over the documents under the state public records law, the Uniform Information Practices Act, so that the public could see what proposals Caldwell approved and what he left on the cutting room floor.
The city responded by denying the request saying it would “frustrate a legitimate government function.” More specifically, officials cited the “deliberative process privilege,” which is a vague exemption public records experts in Hawaii say is often abused.
Compounding matters was the fact that the state’s Office of Information Practices, which oversees the public records law, also seemed to believe that the deliberative process privilege existed in state law.
Civil Beat’s legal challenge, however, said that privilege in fact never existed in state law and that governments have been using it for years to inappropriately withhold public records.
In the 41-page ruling, a majority of the Hawaii Supreme Court agreed with Civil Beat. The majority found that the deliberative process privilege does not exist in state law, and that the city as well as other agencies have been using it for years to keep government records secret.
In a statement, OIP said it would abide by the Supreme Court decision and begin reviewing cases in which the privilege has been asserted.
“In light of this decision, OIP will no longer recognize the deliberative process privilege under the frustration exception to disclosure,” the office said. “Agencies that have used this argument in cases pending before OIP will be contacted and allowed to submit supplemental arguments in their cases.”
The court split 3 to 2 on the decision, with Associate Justices Sabrina McKenna, Richard Pollack and Michael Wilson making up the majority.
Chief Justice Mark Recktenwald and Associate Justice Paula Nakayama dissented, saying that the majority adopted “extreme positions” that fully reject the so-called deliberative process privilege.
Writing for the majority Pollack said that OIP’s interpretation of the exemption was “palpably erroneous.”
Pollack cited the history of the UIPA and the fact that legislators knowingly kept the deliberative process privilege out of it while crafting the legislation in 1988 because it would have closed off records that had historically been available to the public under prior Hawaii law.
The justice undermined the city’s own arguments that releasing internal budget records would have a chilling effect on frank discussions because of fear of ridicule. Those arguments alone, Pollack wrote, are not enough to constitute the frustration of a legitimate government function.
He said the Legislature provided examples of when confidentiality might be warranted under the law’s “legitimate government function” exemption, including those related to aspects of law enforcement, purchasing of property and maintenance of secure record-keeping systems.
“By contrast,” Pollack wrote, “the City and (Budget and Fiscal Services) argued that the legitimate government function that may be frustrated by the disclosure of deliberative records was simply agency decision-making.
“But ‘decision-making’ is such a broad and ill-defined category that it threatens to encompass nearly all government actions, which almost inevitably involve decisions of some sort. Indeed, even illegitimate actions beyond the government’s legal authority could likely be described as decisions.”
To justify secrecy, Pollack said government agencies must draw a “real connection” between disclosure of a record and how it might impede the government from doing business.
He said the explanation must also provide enough detail so that OIP or the courts can evaluate whether such confidentiality is needed and the likelihood of the feared repercussions of transparency.
In the dissenting opinion written by Nakayama, she and Recktenwald conceded that OIP might have had an overly broad interpretation of the exemption, but that it was one that could have been remedied with a more nuanced analysis.
Nakayama said she would adopt a middle-ground approach that would require government agencies to provide detailed justifications for why they wanted to keep documents secret.
It would then be up to courts, she said, to balance that desire for confidentiality against the public’s interest.
“Such as approach would protect the public’s right of access to documents without unduly impeding the ability of government officials to reach sound decisions through the free and candid exchange of ideas,” Nakayama wrote.
The majority, however, dismissed the dissent, noting that it was based on a ruling by the Colorado Supreme Court that involved laws that were different than those found in Hawaii.
They also doubled-down on their interpretation that the deliberative process privilege does not exist in Hawaii law, nor did legislators want it to be there.
They said the dissent “would thus usurp the role of the legislature by reading a complex exception into the statute that has no basis in its text or legislative history.”
The case could have wide-ranging implications for transparency in Hawaii.
It was of such potential magnitude that the Hawaii Attorney General’s Office also participated in the case, arguing that the deliberative process privilege was “important for the everyday function of the State’s many agencies.”
Black, who is the executive director of The Civil Beat Law Center for the Public Interest, a nonprofit that seeks to increase transparency in government, said the ruling represents a “major shift” in the way public agencies think about public records.
“For the last 30 years OIP has been enabling government agencies to withhold records that they shouldn’t have been able to withhold,” Black said. “Agencies should now be thinking hard about the importance of providing a level of transparency that’s consistent with the UIPA’s purpose that government records be as open as possible.”
Gerald Kato, chairman of the School of Communications at the University of Hawaii, said he’s glad the Supreme Court finally weighed in on the deliberative process privilege.
He said it’s an exemption he’s encountered a lot in his career first as a reporter and then as a professor of journalism. The term itself — and those like it, such as “predecisional” — has always seemed intentionally vague to him, almost as if it were meant for obfuscation. He said there always seemed to be an assumption among journalists and government officials privilege existed in some sort of legal framework given how often it was cited to withhold records.
He joked that it was a term only lawyers could love.
“I’m glad somebody out there raised the issue of its legitimacy,” Kato said. “It’s at best a vague concept. But when you have a vague concept like that it can be subject to a great deal of abuse, and that’s one of the problems.”
He added that he wouldn’t be surprised if the government now turns to the Legislature in an attempt to claw it back.
The court’s ruling won’t force the city to release the nearly four-year-old budget records. Instead, the case will be sent to a lower court where the city will have the opportunity to present another excuse under state law for keeping the budget documents secret.
Read the court’s ruling and dissenting opinion:
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