The Hawaii law granting public access to government records has been suspended for 293 days as of Monday under one of dozens of executive orders that Gov. David Ige issued at the start of the pandemic.
The move was not popular among state lawmakers and there is no indication of when the governor might lift his order. But it’s also not an issue that lawmakers have plans to address yet, at least directly, as they head into the 2021 session, which starts Jan. 20.
“We haven’t really looked at the specificity of bills in that regard,” Senate President Ron Kouchi said Thursday.
Some lawmakers have said it may come up as part of a broader effort by the Legislature to examine the governor’s emergency powers. At least one state on the mainland took that step and forced public agencies to comply with the records law even during times of emergency.
Ige suspended the laws governing public records and open meetings in March in his first round of emergency orders to deal with the coronavirus pandemic. At the time, it was considered the most restrictive order on government transparency in the U.S.
The governor partially walked back the suspension in May and added more specific instructions regarding how agencies must respond to requests from the public. But the ongoing suspension, now extended to Feb. 14, has hampered the work of government watchdogs, the media and even some legislators.
Kouchi remarked how the Senate’s special COVID-19 committee has made dozens of requests for documents from departments, some of which have dragged their feet in responding.
Ige’s suspension was irksome to other lawmakers too. Civil Beat included a question on the public records law suspension in a questionnaire that was sent to all legislative candidates during the 2020 elections. Of those in office who responded to the questionnaire, 21 either disagreed with the suspension, viewed it negatively, or believed agencies should still be responding to records requests.
But those views may not turn into policy directions.
Kouchi said senators have been focused on how the Capitol will operate when the session opens.
“We haven’t gotten around to the policy stuff, as far as formal discussions go,” Kouchi said, adding that much of the Senate’s focus has been on finding a way to safely conduct session and ensuring the public can still participate.
Access to public records has been an issue for Rep. Tina Wildberger even before the pandemic and the governor’s executive order. She said she is still waiting for information on ongoing Department of Education projects that she asked for two years ago.
“The lack of information and lack of communication has been the biggest obstacle, the biggest challenge, the biggest failure across the board,” Wildberger said of government agencies during the pandemic.
Wildberger is uncertain what level of support there is for pushing for access to records in the Legislature. She hopes it’s one issue the new House Government Reform Committee, of which she is vice chair, could take up.
House Judiciary Chair Mark Nakashima said he doesn’t understand the reasoning behind Ige’s suspension of the public records law.
“As long as the employees were still working, they could perform those duties,” Nakashima said. “If they were working from home, on the other hand, I could see how getting their hands on records could be difficult.”
But Nakashima says he wants to learn more from the administration before acting, and wants to find workarounds so that agencies can still respond to requests.
Ige said he suspended the law to give government agencies more flexibility and because those agencies were inundated with records requests from around the world.
“It has been a significant challenge for us in order to meet the requirements. I’ve directed our agencies to respond to the requests because we know we have to. But, at the same time, we’re trying to get unemployment benefits out and a whole bunch of other things,” Ige said during an interview with Civil Beat’s reporters and editorial board.
Sen. Gil Keith-Agaran says the records law, Chapter 92F, already gives government agencies the flexibility to delay records requests. In April, he and Sen. Karl Rhoads wrote a letter to the governor demanding that the suspension be lifted.
“He didn’t have to suspend the law as broadly as he did,” Keith-Agaran said.
But Keith-Agaran says forcing the records law back open with a new law could be problematic since the current statute already provides avenues for delaying records requests.
State agencies across the U.S. have altered the way they respond to records requests, but some state legislatures have taken the issue on with new laws.
The Pennsylvania General Assembly unanimously passed a measure, called Act 77, which requires state agencies to comply with public records requests even during times of emergencies. Many of those agencies, including those managing the state’s pandemic response, were slow in responding to records requests at the outset of the COVID-19 outbreaks, Spotlight PA reported.
Pennsylvania Gov. Tom Wolf, a Democrat, threatened to veto the measure, but ultimately allowed it to become law in July without his signature. Republican Rep. Seth Grove introduced the bill.
“While transparency between government and people is critical during normal times it is even more important during times of emergency,” Grove wrote in a memorandum on the bill.
New Jersey lawmakers also passed a law requiring agencies to make a reasonable effort to respond to records requests within seven days.
Keith-Agaran, the Maui senator, thinks discussion of the Hawaii records law may come up as legislators dig into the governor’s emergency powers.
That’s something House Speaker Scott Saiki says lawmakers may focus on next session. Ige first instituted a COVID-19 emergency proclamation, which has been extended 16 times since then.
“I’m not sure if the intent of the current statute was to allow the governor to exercise emergency powers on an indefinite basis,” Saiki said.
Besides the duration of emergency orders, the Legislature might also home in on the scope of the governor’s powers. Keith-Agaran said there’s interest in granting other officials, like the Department of Health director, some emergency authority.
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