WASHINGTON — Before the stay-at-home, work-at-home orders, the 14-day quarantines and the requests that tourists cancel their vacations, Hawaii Gov. David Ige suspended the state’s public records and open meetings laws.
Ige issued the decision on March 16 as part of an emergency declaration that came in response to the growing coronavirus pandemic that has sickened at least 175 people in Hawaii and more than 100,000 in the U.S.
The governor’s decision is one of the most extreme anti-transparency measures executed in the U.S., and is now coming under increased scrutiny as Hawaii struggles to get a handle on the outbreak.
“Democracy, accountability and transparency still matter during these crucial times,” said Sandy Ma, the executive director of Common Cause Hawaii. “So much is happening so quickly, and it needs to because we are in a crisis situation, but we also need to document what is happening for the future good so that we can look back and see what we did right and what we did wrong.”
Ige has already been widely criticized for how he’s approached the COVID-19 epidemic. In a March 19 letter to the governor, House Speaker Scott Saiki described the state’s handling of the outbreak as “utterly chaotic” and the cause of “mass confusion among the public.”
Doctors have openly questioned the Department of Health for its conservative approach to testing, saying that limited supplies should be used now to find out who has the disease so that its spread can be curbed rather than wait for a spike in patients.
More recently, Ige was lambasted for his decision to cut Lt. Gov. Josh Green — a medical doctor — out of the COVID-19 decision making process although the two have more recently smoothed out their differences and are working together again, they say. Even the state’s first reported death turned out to be inaccurate.
Government officials, meanwhile, have begun to close ranks.
On March 19, a panel of state senators held a meeting behind closed doors to hear how the state planned to quarantine visitors to the islands to contain the spread of the virus. While those meetings are now being broadcast by Olelo and online, no public comment is allowed.
The Department of Health quietly scrubbed certain testing data from its website, and although officials have said they plan to republish the numbers — which are related to the total number of tests that have been conducted — they have yet to actually do so.
Reporters who attend the state’s daily coronavirus press briefings, too, are often limited in the number of questions they can ask and are told to send their follow-ups to a generic email address.
“We get these public briefings, but there are still so many unanswered questions,” Ma said. “Things are operating in the dark right now.”
There’s been little explanation as to why Ige decided to suspend the state’s open meetings and public records laws, an order that’s in effect until May 15 but that can be extended if he chooses.
In terms of the Sunshine Law or open meetings, the governor’s proclamation says that boards “shall consider reasonable measures to allow public participation consistent with social distancing practices,” but that no board action or deliberation would be invalid “if such measures are not taken.”
The proclamation didn’t include any reason for suspending the public records law, which is codified in Chapter 92F of the Hawaii Revised Statutes as the Uniform Information Practices Act.
In an emailed statement to Civil Beat, the governor’s spokeswoman Cindy McMillan said Ige would not be available for an interview, but she did expand on his rationale for suspending the public records law.
“As this is a global pandemic and a serious threat to the safety and welfare of our state’s population, 92F was suspended to give government the maximum flexibility to focus its attention and personnel resources on directly addressing the immediate situation at hand,” McMillan said. “When the situation is stabilized and there is proper leeway to re-direct those resources, the suspension of 92F will be lifted.”
That language is identical to what the Hawaii Attorney General’s Office told agency officials to tell any citizen who’s seeking public records while the suspension is in place.
Hawaii is not alone in modifying how it conducts public business during a pandemic. Social distancing, all-hands-on-deck emergency response efforts and stay-at-home work orders have changed the ways officials communicate with each other as well as the citizens they serve.
Already a number of government agencies have loosened requirements under open meetings laws to issue timely notices of upcoming meetings and pushed for delays in fulfilling public records requests.
For instance, the FBI has stopped accepting electronic requests for information through the Freedom of Information Act despite the fact that many other federal agencies, including the U.S. Environmental Protection Agency, are continuing to follow regular FOIA procedures as best they can during the pandemic.
In Chicago, Mayor Lori Lightfoot backed off of a plan to automatically reject all requests for public records during the COVID-19 outbreak after swift backlash from journalists and other government watchdogs.
Illinois’s attorney general’s office even issued an opinion stating that public bodies should still comply with FOIA requests during the pandemic even if resources were limited, and that members of the public and the media should work together with public officials to “agree on reasonable and appropriate response times in light of the public health concerns that we all face.”
“That’s not to say they’re doing evil things, but you just don’t cut corners when it comes to democracy.” — Daniel Bevarly, National Freedom of Information Coalition
More than 130 organizations, led by the National Freedom of Information Coalition, signed an open letter to state, local and tribal leaders pleading with them to take transparency seriously even as the pandemic continues.
“At all times, but most especially during times of national crisis, trust and credibility are the government’s most precious assets,” the letter states. “As people are asked to make increasing sacrifices in their daily lives for the greater good of public health, the legitimacy of government decision-making requires a renewed commitment to transparency. Open government is not ‘bureaucratic red tape.’”
Daniel Bevarly, executive director of the National Freedom of Information Coalition, said a lot of government agencies are trying to adapt and engage with citizens through the use of technology, whether it’s holding virtual public meetings or delivering documents via email.
Hawaii, on the other hand, has taken a tack that Bevarly describes as “extreme.”
By suspending the open meetings and public records laws completely, Bevarly said, it gives all Aloha State officials a free pass to do what they see fit, even if it has nothing to do with responding to the COVID-19 crisis.
“I know it’s all on the governor’s shoulders here, but he’s enabling a number of other elected officials and governing bodies out there to violate the law, although they’ll no longer be violating it officially,” Bevarly said. “They’re all going to need to be held accountable for what they do. That’s not to say they’re doing evil things, but you just don’t cut corners when it comes to democracy.”
For Brian Black, the executive director of The Civil Beat Law Center for the Public Interest, there’s little argument that Ige’s emergency declaration goes too far.
“No governor has done anything close to what has been done in Hawaii,” Black said. “We’re at the bottom.”
Black’s office compared Ige’s declaration to what was happening in every other state and found there was no comparison, at least when it came to how top executives handled access to public records.
For the most part, Black said, governors and attorneys general in other states addressed the fact that resources were spread thin and that there might be delays in responding. They didn’t outright extinguish the law.
The Hawaii Office of Information Practices, which is the state agency that’s supposed to advocate on the public’s behalf, went along with Ige’s proclamation.
The office’s executive director, Cheryl Kakuzu Park, even wrote a letter to all state agencies detailing how they should go about not fulfilling records requests, even if those requests were made before Ige’s declaration and were past due. Requests made after March 16, when the governor’s order took effect, can legitimately just be ignored, she told the agencies.
Park had pushed the Legislature to restrict public access to meetings, floating an amendment to a bill that was under consideration before lawmakers suspended the session.
Black sent a strongly worded letter to Ige on Thursday urging him to change course. He pointed out that no other state has “gutted public access laws” the way Hawaii has done in response to the pandemic, and that the decision to completely suspend the laws was “recklessly overbroad.”
“Keeping the Hawai’i electorate in the dark about government decisions for two months or longer is unconscionable,” Black wrote. “In crisis, we must reaffirm, not abandon our most basic democratic principles. When government boldly declares that it will hide information and conceal decision-making, rumor, innuendo, and special interests thrive, while democracy withers.”
Black pressed Ige to reinstate the open meetings law immediately, and laid out a series of proposals for how boards and commissions can conduct business transparently in a time when everyone is asking to keep their social distance to limit the spread of the virus.
“No governor has done anything close to what has been done in Hawaii. We’re at the bottom.” — Brian Black, The Civil Beat Law Center for the Public Interest
He said there were three basic components to his plan — public notice, public observation and public participation. He said boards should be discouraged from meeting unless it was absolutely necessary to comply with the law or take an emergency action.
“Boards should not add to the communal stress on resources by holding unnecessary meetings,” Black said.
If a board wants to suspend the public notice requirements in the law, which in general forces boards to post their agendas six days in advance, he said, it should be limited only to COVID-19 emergency response.
To protect board members, Black said they should be allowed to meet virtually so long as it permits public observation. If for some reason oral testimony is not feasible, Black said, citizens should be allowed to submit their concerns in writing.
Similarly, Black demanded an immediate reinstatement of the public records law. The UIPA, he said, already includes language that gives agencies flexibility when it comes to how much time they have to respond to records requests. He pointed out that even then, studies have shown that most state agencies don’t comply with those rules anyway.
If anything, he said, the governor could give agencies more leeway to process requests rather than suspend the law completely.
He noted that Ige’s proclamation “opens the door for government employees to intentionally leak confidential records without any criminal consequence.”
“As a community, we all must work harder to preserve our way of life in a time of crisis and uncertainty,” Black wrote. “We can and must be better to adapt to these changes. No one can assume that COVID-19 will be a short-term emergency. Hawai’i is not unique in dealing with the strain of this illness on society.”
Black told Civil Beat he has yet to get a response from Ige, although he has been in contact with the Hawaii Attorney General’s Office.
Whether the letter moves Ige to retract the suspension is another matter. Hawaii does not have a good reputation when it comes to government transparency.
Too often Black finds himself in court arguing over whether the public has a right to know about police officer misconduct, for example, or if city budget documents should be available to citizens.
He also spends hours at the Legislature trying to convince lawmakers of the value of openness. More often than not he leaves disappointed after decisions to kill pro-transparency bills are made behind closed doors.
“You can’t really have a good reputation for transparency when in a time of crisis you throw it out the window,” Black said. “It’s in these times of emergency when you really see what your values are, and clearly our elected representatives have not placed a lot of importance on transparency if they’re willing to abandon it completely.”
The Civil Beat Law Center for the Public Interest is an independent organization created with funding from Pierre Omidyar, who is also CEO and publisher of Civil Beat. Civil Beat Editor Patti Epler sits on its board of directors.
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