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Just one week after a legislative committee rejected Cheryl Kakazu Park’s desire to block transparency in government deliberations, the director of the state Office of Information Practices was at it again.
The outcome was the same.
Park is now 0-2. But given her determination, I am not sure the issue is over yet.
The irony in all this is that the person in charge of arbitrating the state’s law on open access to government records — the Uniform Information Practices Act — is the person trying to prevent the law from working.
As she stated in her testimony on both bills, Park strongly believes that the Legislature should codify what’s known as the “deliberative process privilege” so that more government records can be shielded from public scrutiny.
“Besides encouraging this candid and free exchange within and among agencies, the DPP is based on the recognition that the premature disclosure of proposed policies or tentative decisions before they have been finally formulated or adopted can lead to public confusion and unnecessary divisiveness based on reasons, rationales, or proposals that were not ultimately adopted or expressly incorporated by reference into the final document,” Park wrote in her most recent testimony.
At the core of Park’s rationale is, as she put it, the need “to balance the government’s interest in confidentiality with the public’s interest in disclosure.”
Not so, said Brian Black of the Civil Beat Law Center for the Public Interest, who also testified on the House bill last week.
“The balancing test that OIP has suggested is an invitation solely to delay.” — Brian Black
After Park summarized her testimony before the Senate Judiciary Committee on Wednesday, Black reminded lawmakers that the U.S. Congress has described DPP as the “withhold it because you want to” exception. Many jurisdictions have no such privilege, he added, and the “modern trend” is to move away from DPP.
“The balancing test that OIP has suggested is an invitation solely to delay,” said Black, who pointed to a three-year backlog in cases before OIP, as well as a case represented by the law center itself that dates back five years. It was the latter case that the Hawaii Supreme Court recently ruled on, in Black’s favor.
“The deliberative process privilege would create a massive hole in government transparency that the Hawaii Supreme Court recently recognized should not have existed,” said Black, who described DPP as a bad policy choice that “ignores the expressly declared intent and policy that is in the UIPA today, which says that government deliberations should be conducted as openly as possible.”
After the ruling, the OIP said it would abide by the Supreme Court decision and begin reviewing cases in which the privilege has been asserted. What it has also done is try to suggest other ways that agencies could withhold records that might pass legal muster.
This may seem to many inside baseball, and there is some truth to that. I also have a big, hairy dog in this fight: The lawsuit that Black refers to is from Civil Beat, which has been trying to get budget documents from the City and County of Honolulu. We’re still waiting.
(Speaking of transparency: In the interest of full disclosure, I am a member of the Civil Beat editorial board, which last week wrote that OIP was acting as if it was instead the Office of Information Privacy. My line.)
Park is the only person publicly advocating for the DPP. The two bills in question don’t actually call for codification of the deliberative process privilege, but because both bills involve the UIPA, Park is able to submit testimony on them to argue her case for the DPP.
“I’m just letting people know what DPP stands for, and it’s up to them if they are going to do anything about it.” — Cheryl Kakazu Park
In another twist, on Sunday the Honolulu Star-Advertiser’s Sophie Cocke revealed how a staff attorney at OIP — Lorna Aratani — had asked Sen. Brian Taniguchi to introduce a bill that directly calls for putting the DPP into law.
On Wednesday, Park confirmed that Aratani had done just that after Park previously denied that her agency was involved in lobbying Taniguchi to sponsor the measure, but she said she only found out after the fact.
“She doesn’t want to be in the front pages of the newspaper,” Park said of Aratani. “She’s just a staff attorney. And she did it as a private individual. She never asked for my permission. She told me that she felt very strongly the decision was wrong and that she wanted to have a vehicle (bill).”
Taniguchi’s bill has yet to receive a hearing and appears dead.
Park, who was appointed by then-Gov. Neil Abercrombie in 2011, thinks the Supreme Court issued a poor ruling, one that she argued ignored precedent.
“I think they missed a lot of things,” she said. “A lot of legislative history wasn’t presented to them that might have changed their decision had they known about it. And it was a very close decision, as you know.”
I asked Park why she persists in trying to persuade lawmakers to change the law.
“I’m just letting people know what it stands for, and it’s up to them if they are going to do anything about it,” she said. “But the court did say it’s for the Legislature to do something about it if they want to.”
I called Black to ask if that was true. Nope.
“It’s definitely true that the Legislature could reconsider the issue, but what she’s been saying is that the court was inviting the Legislature to do it. And that’s just not the case.”
I’m not sure what’s next. But I do wonder whether Park and her staff might make better use of their time by actually working on OIP cases than by trying to legislate their way out of a court ruling.
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