The University of Hawaii and other state agencies are asking lawmakers to make it easier to restrict public access to a whole class of government records, a move that would undermine a far-reaching ruling by the state Supreme Court in 2018.

House Bill 2303 would amend the state open records law to specifically allow public agencies to keep secret certain “drafts, internal memoranda and correspondence” and other “pre-decisional materials” that are part of the agencies’ internal decision-making processes.

The proposed new law would allow those records to be withheld from the public if disclosure “would impair the agency’s ability to make sound and fair decisions, but only to the extent that such impairment outweighs the public interest in disclosure.”

The bill is an attempt to roll back a decision by the state Supreme Court in Peer News LLC v. City and County of Honolulu, a case in which the court overturned 30 years of precedent and rejected the idea that agencies have a blanket  “deliberative process privilege” that can be used to withhold any agency records that are deliberative or “pre-decisional.”

Deedy Trial Hawaii Supreme Court Otake addresses justices. 2 feb 2016
The state Supreme Court ruled the Hawaii open records law does not contain a blanket “deliberative process privilege,” a decision that has forced state and county agencies to open a variety of records to the public. Now, lawmakers are being asked to essentially reverse that decision. Cory Lum/Civil Beat/2017

The impact of the proposed change in the law could be far reaching, said Brian Black, executive director of the Civil Beat Law Center for the Public Interest, who successfully challenged the previous practice of withholding draft documents without good reason.

“It’s going to punch a significant hole in the public records law,” Black said. “This idea that you’re going to have a balancing test, that’s just going to lead to more litigation.”

The genesis of the Supreme Court case was a 2015 request by Honolulu Civil Beat reporter Nick Grube, who wanted to know how much money city departments had originally sought in their annual budget requests.

Those departmental requests traditionally are modified — and often reduced — before they are included in the mayor’s final budget that is made public.

The city Department of Budget and Fiscal Services rejected Grube’s request, arguing the city’s budget decision-making process would be “frustrated” by disclosure of how much money the departments originally asked for in their internal city communications, according to the court ruling.

That BFS argument was backed by eight opinion letters issued by the state Office of Information Practices from 1989 to 2007 that concluded Hawaii’s open records law allowed agencies to withhold government records based on a “deliberative process privilege” that protects all pre-decisional records.

But the Supreme Court in 2018 rejected that idea, noting there was no mention of a “deliberative process privilege” for agencies in the Hawaii’s open records law, known as the Uniform Information Practices Act. In fact, the court concluded lawmakers considered creating such a special “privilege” in 1988, but ultimately left it out of the law.

The court’s decision contradicted the eight opinions by the state Office of Information Practices, which is tasked with interpreting the state open records law. The official mission of that office is “ensuring open government while protecting individual privacy.”

Office of Information Practices Director Cheryl Kakazu Park OIP in Judiciary Committee meeting at the Capitol. 21 feb 2017
Office of Information Practices Director Cheryl Kakazu Park and Brian Black, executive director of the Civil Beat Law Center for the Public Interest. Park says House Bill 2303 would provide a “reasonable balance,” while Black says it would “punch a significant hole in the public records law.” Cory Lum/Civil Beat/2017

Now, OIP apparently wants to return to the way things were. Cheryl Kakazu Park, director of OIP, told the House Government Reform Committee last week that “we think that if you wanted to pass this bill, it would provide a reasonable balance to be able to return to what OIP has been doing for 30 years beforehand.”

“We think that this bill would provide legislative intent. We’ve been following the Supreme Court opinion no matter what, but if that is not what the Legislature deems was its intent or should be its intent now, then we’ll follow whatever the Legislature comes up with now,” she told the committee.

OIP said in written testimony that HB 2303 represents a “reasonable balance” that will give agencies “some room to fully and frankly discuss proposed policies or tentative decisions outside the glare of publicity.”

The bill would still allow the public to have access to internal, pre-decisional government records “when the public interest is equal to or stronger than the potential harm to the agency,” according to OIP.

Sandy Ma, executive director of Common Cause Hawaii, countered that “the purpose of the Uniform Information Practices Act is to open government processes to public scrutiny and participation, and we think having another exemption to the public records requests will not fulfill the intent and purpose of the public records law.”

“We’re concerned that an agency can have a really large umbrella of what it considers drafts and internal memoranda and correspondence, and that could sweep in a lot of documents that will not be disclosed,” she told the committee. “Lots of things can be called drafts or internal memoranda and correspondence. It can cover a whole host of documents.”

In fact, Black said that prior to the Supreme Court decision, government agencies used the supposed deliberative process privilege as the rationale for withholding an array of records from the public.

Those included evaluations of an agency’s overall performance; formal inter-departmental comments on the proposed sale of park land; consultant’s reports; revenue estimates for proposed legislation; agency recommendations regarding publicly discussed permit applications; forecasts of general fund tax revenues; and even audit recommendations.

“It is the height of government secrecy for the Legislature to consider enacting an exception to public records that is universally reviled by the public in every other jurisdiction in the United States where it exists,” Black wrote in his testimony.

But HB 2303 was supported by the university as well as the multi-billion dollar Employees Retirement System and the state Department of Budget and Finance, which oversees all state spending.

“This measure effectively balances the competing public interests of promoting effective decision-making processes by government agencies, and the availability of government records for review by all,” wrote state Budget Director Craig Hirai.

UH Vice President for Legal Affairs Carrie Okinaga said in her written testimony that “the University supports this bill because it strikes an appropriate and needed balance between the public’s interest in disclosure, and the public’s need for government entities to be able to deliberate towards well-informed, stress-tested, and thoughtful decisions.”

HB 2303 won tentative approval from the House Government Reform Committee on Wednesday, with Chairman Angus McKelvey saying the measure “definitely warrants more discussion moving forward.” It now advances to the House Judiciary and Hawaiian Affairs Committee.

But some lawmakers have questions about the bill. Senate Judiciary Committee Chairman Karl Rhoads said before he would support the bill in his committee, he wants to know exactly how the court decision has gummed up government operations, if in fact it has.

“My initial reaction is, if it’s not a problem, then we should just let it be, but if there’s evidence that there’s a problem, I could certainly be convinced,” he said.

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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