A bill that would make it more difficult for the public to get access to “pre-decisional” government records is quietly dying in the state Senate, but lawmakers want to establish a working group to consider when those records should be made public, and when they should be kept secret.

Senate Judiciary Chairman Karl Rhoads said Tuesday he will not hold a hearing on House Bill 2303, which means the measure will fail this year.

That bill would have amended the state open records law known as the Uniform Information Practice Act 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 bill would have effectively reversed a far-reaching 2018 ruling by the state Supreme Court in a case called Peer News LLC v. City and County of Honolulu.

The court in that decision rejected the idea that agencies have a blanket “deliberative process privilege” that can be used to withhold agency records that are deliberative or “pre-decisional” in nature.

Hawaii State Supreme Court Chief Justice Mark Recktenwald flanked by associate justices enter court to hear oral arguments on a reapportionment case.
The Hawaii Supreme Court rejected the idea that agencies have a blanket  “deliberative process privilege” that can be used to withhold agency records. Cory Lum/Civil Beat/2022

Government agencies for decades had used the supposed “deliberate process privilege” as justification for withholding records ranging from forecasts of general fund tax revenues and audit recommendations to consultant’s reports, but the Supreme Court ruled there was no mention of any such privilege in Hawaii’s open records law.

But that decision has raised some concerns among some government agencies. The University of Hawaii, the state Department of Budget and Finance and the Employees Retirement System all supported HB 2302, which would essentially roll back the court’s decision in that case.

The ERS cited arguments from a federal Freedom of Information Act court case that found the deliberative process privilege “serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism.”

Rhoads said other lawmakers have approached him with similar concerns, but said that perhaps employees “just need to get a little thicker skins if you’re going to serve in these positions.”

“I feel it when people say bad things about me, but if you want to be in this business, then you need to be able to put up with a certain amount of that,” Rhoads said. “People want to be in public service and have the authority, but they don’t ever want to get criticized for anything, and I just don’t know if that’s possible.”

Meanwhile, lawmakers are advancing Senate Concurrent Resolution 192 and House Concurrent Resolution 146, which asks the state Office of Information Practices to convene a working group to recommend how to resolve the deliberative process privilege controversy.

The resolutions propose that the working group “develop a consensus on language for a new UIPA exception for agency records that are deliberative and pre-decisional which reasonably balances the public’s interest in disclosure against the potential harm to the agency’s ability to fully consider and make sound and informed decisions.”

The director of OIP would appoint the members of the working group, which is to include three members who represent public interest groups and three members representing government agencies subject to the UIPA as well as the OIP director, according to the resolutions.

Brian Black, executive director of the Civil Beat Law Center for the Public Interest, said in written testimony he would be willing to work with the group to seek a consensus, but he still opposes creation of the deliberative process privilege here.

“Enacting the deliberative process privilege would be a disaster for Hawaii because that doctrine is excessively secretive and prone to abuse by government agencies,” wrote Black, who litigated the Peer News case.

“To the extent that there are legitimate concerns about disclosure of deliberative records, however, the Law Center is willing to explore solutions targeted at those concerns while respecting the public’s right to know how its government operates, including deliberations,” he wrote.

Common Cause Hawaii and the League of Women Voters of Hawaii have also volunteered to participate in the group, which would not be required to meet in public.

HCR 146 is scheduled for a hearing before the House Government Reform Committee at 11 a.m. Wednesday.

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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