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On the Friday before Christmas, the Hawaii Supreme Court issued a significant ruling in strong support of freedom of information.
It stems from a Civil Beat 2015 lawsuit that sought to access budget documents used to inform Honolulu Mayor Kirk Caldwell’s spending plans for fiscal year 2016.
City officials denied the request, saying it would “frustrate a legitimate government function.” They cited the “deliberative process privilege,” an oft-implemented yet ambiguous public records exemption that, as it turns out, has long been abused.
On Dec. 22, the Hawaii Supreme Court ruled that the state Office of Information Practices — which administers our open records law, the Uniform Information Practices Act — had improperly cited the deliberative process privilege that had allowed agencies to deny records requests going back to 1989. The justices sent the case back to the lower court where we’ll see if the city plans to continue to fight the release of four-year-old budget documents.
Now it is the job of the Hawaii Legislature to strengthen that transparency and make sure that our public records law is not undermined by agencies seeking to end-run the high court, in this legislative session or those in the future.
The court found that there is, in actuality, no state law allowing such a deliberative process privilege exemption. OIP (which was not a party to the case) said it will abide by the decision and plans to review affected cases, although as of this writing it says it is unsure just how many cases there are.
But the deliberative process privilege has been used to block access to other information of value to the public. The Honolulu Authority for Rapid Transportation, for example, has used the deliberative process privilege to block access to rail records.
As the Hawaii Legislature prepares to open its 2019 session in two weeks, we want to remind lawmakers that it was the Legislature itself that crafted what’s known as the UIPA. The 1988 law is a good public records law, a model in a nation where open government guides vary considerably from state to state. But the execution has often fallen short when it comes to real public access because of the long-standing reliance by government officials on the phantom deliberative process privilege.
The UIPA is so central to the workings of our democracy that the Hawaii Supreme Court cited it in the opening paragraphs of its Dec. 22 decision.
Quoting from the statute itself, the court wrote that Hawaii law has long stated that opening up “the government processes to public scrutiny and participation is the only viable and reasonable method of protecting the public’s interest.”
The opinion continues:
Therefore, in establishing the legal framework governing public access to government records, the Hawai‘i legislature declared “that it is the policy of this State that the formation and conduct of public policy — the discussions, deliberations, decisions, and action of government agencies — shall be conducted as openly as possible.”
The court observed the agency was “palpably erroneous” in interpreting Hawaii Revised Statute 92-F as somehow allowing for “this sweeping privilege.”
It is alarming that no one challenged this serious error until Civil Beat filed the lawsuit that led to the Hawaii Supreme Court’s review.
As The Civil Beat Law Center for the Public Interest noted in its arguments before the high court, “the Legislature purposefully rejected the federal deliberative process privilege” when writing the UIPA legislation 30 years ago.
In the wake of the court’s definitive ruling, the Legislature should not be tempted to undercut the UIPA. It has done so in the past, most conspicuously in 1995 when it made an exception for the disclosure of incidents of police misconduct at the urging of the state’s politically powerful police union.
Just in the past two years the state Senate and House of Representatives introduced more than a dozen bills that would have amended the UIPA, mostly weakening it.
These included a bill calling for redaction of financial disclosure amounts reported by volunteer members of state boards, commissions and agencies. That legislation died, as did another bad bill, this one allowing an agency to go to court to stop so-called “vexatious” requestors of public records.
Good bills requiring disclosure to the Legislature of state and county law enforcement officers upon their suspension or discharge also stalled in the 2017-2018 sessions. The one UIPA bill that did pass — a bad one — says the Department of Hawaiian Home Lands can keep some government records from public inspection.
Given that the Legislature is exempt from the 1975 Sunshine Law (which allows people to participate in public meetings) and that it can exempt itself from UIPA requests (for example, exceptions are allowed for draft budget worksheets and yet-to-be-filed committee reports), it’s not hard to imagine that efforts may be afoot to weaken our excellent public records law.
There are legitimate reasons for agencies to deny records request such as matters involving personal privacy, pending litigation and public safety. But agencies will now have to demonstrate why releasing public records would be harmful.
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The members of Civil Beat’s editorial board are Pierre Omidyar, Patti Epler, Jim Simon, Richard Wiens, Chad Blair and Jessica Terrell. Opinions expressed by the editorial board reflect the group’s consensus view. Chad Blair, the Politics and Opinion Editor, can be reached at firstname.lastname@example.org.