Hawaii Legislature Should Not Mess With Our Public Records Law - Honolulu Civil Beat

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Civil Beat Editorial Board

The members of The Civil Beat Editorial Board are Chad Blair, Patti Epler, Nathan Eagle, Kim Gamel, John Hill and Matthew Leonard. Opinions expressed by the editorial board reflect the group’s consensus view. Not all members may participate in every interview or essay. Chad Blair, the Politics and Opinion Editor, can be reached at cblair@civilbeat.org.

A Civil Beat headline from December 2018 was dramatic yet spot on: “Hawaii Supreme Court Overturns 30 Years Of Government Secrecy.”

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The landmark decision began with a public records request from Civil Beat reporter Nick Grube in 2015, who was trying to obtain budget documents from then-Honolulu Mayor Kirk Caldwell.

The city declined the request, arguing it would “frustrate a legitimate government function” if city officials had to reveal how and why they arrived at the final budget submitted to the City Council by the mayor. Officials cited the “deliberative process privilege,” an exemption that public records experts in Hawaii say has often been misused.

Indeed, in siding with Civil Beat in its 3-2 decision the high court concluded that the privilege does not actually exist in state law. The city and other government agencies had been wrongly keeping government secrets secret for decades, ones that should have been disclosed under the Uniform Information Practices Act — Hawaii’s version of the federal Freedom of Information Act.

In the majority ruling, then Associate Justice Richard Pollack laid the blame for the lame interpretation of the exemption squarely on the Office of Information Practices. That’s the state agency that administers UIPA — which requires open access to government records — and the Sunshine Law, which requires open public meetings.

In a stinging rebuke to OIP, Pollack said its logic over the decades was “palpably erroneous.”

The ruling was rightly heralded as a “major shift” in the way public agencies think about public records, Civil Beat reported at the time.

“For the last 30 years OIP has been enabling government agencies to withhold records that they shouldn’t have been able to withhold,” said Brian Black, Civil Beat’s attorney. “Agencies should now be thinking hard about the importance of providing a level of transparency that’s consistent with the UIPA’s purpose that government records be as open as possible.”

And yet, seven years after Civil Beat went to court in the public interest, OIP is still seeking to keep the public in the dark. It is requesting public comment — even anonymously — on draft legislation that it argues will improve government decision-making.

Specifically, the bill, which would likely be heard in the next legislative session that begins in January, would create a new UIPA exception allowing agencies to keep the decision-making process secret until after everything is all over and the decision has been made. The information the public would be shut out from reviewing includes notes and rough drafts.

As well, the identity of those involved would be withheld “if that person lacks discretionary authority, did not make the decision, and is not under investigation for or engaged in wrongdoing or criminal conduct,” according to OIP’s position on the proposed law that was posted Wednesday.

OIP calls it a balancing act to give the agencies breathing room. In fact, it is yet another attempt by OIP to work around the court’s ruling, one that appears to still sting.

In 2019, for example, OIP Director Cheryl Kakazu Park unsuccessfully tried to get the Legislature to block transparency in government deliberations. She wanted to codify the deliberative process privilege so that more government records could be shielded. At the time, Civil Beat editorialized that OIP under Park behaved like an “Office of Information Privacy.”

Hawaii Supreme Court Associate justice Richard Pollack during Hawaii State Supreme Court oral arguments from The Sierra Club vs. DR Horton-Schuler Homes, The Land Use commission, Office of Planning and Dept of Planning and Permitting . 25 june 2015. photograph Cory Lum/Civil Beat
Hawaii Supreme Court Associate Justice Richard Pollack described OIP’s interpretation of an exemption to the state’s public records law “palpably erroneous” in a 2018 ruling. But OIP once again is arguing for a change to UIPA. Cory Lum/Civil Beat/2015

That sad pattern continues. In just this past session Park testified in favor of a bill that would have restored a form of the deliberative process privilege. She called it a “reasonable balance” between an agency’s ability to discuss matters “outside the glare of publicity” and the public’s ability to have access to those materials when the public interest “is equal to or stronger than the potential harm to the agency.”

Wisely, the Senate Judiciary Committee elected not to hear House Bill 2303, which was introduced by top House leaders. But Park may have yet another shot at weakening the UIPA, this time with the appearance that the Legislature and even the lawyers who won the 2018 case are somehow calling for it, too.

Public Input Sought

The latest attempt to enfeeble the UIPA came via Senate Concurrent Resolution 192 earlier this year. It called for OIP to put together a working group to come up with recommendations to the law, which was established in 1988.

Park, of course, testified enthusiastically for the working group, using much the same language as before — that it’s about “balance,” that disclosure “would frustrate a legitimate government function,” that it would “benefit” an agency’s ability to “reach sound and fair decisions against the public interest in disclosure.”

Park was joined by strong supporting testimony from some of the very same agencies who have griped about the public records law for years such as the Department of Land and Natural Resources and the Department of Transportation. They don’t like sharing the work they do, even though they work for taxpayers.

The working group, which began meeting in early July, includes Black, who is executive director of the Civil Beat Law Center for the Public Interest, and Duane Pang, Deputy Corporation Counsel with the City and County of Honolulu. They are the very same attorneys who represented Civil Beat and the city’s Department of Budget and Finance, respectively, in the 2018 lawsuit.

Tell them the only legitimate function that is being frustrated is the ability of the public to watch over how its business is being handled.

But just because the working group put forth a UIPA proposal does not mean that its work is fully embraced by all seven members. They could not agree on two other resolutions, for example, one of them reducing times for dispute resolution and another incentivizing after-action reviews.

The minutes of the working group’s four meetings show that there was considerable disagreement between the members as they conducted their work. And that work is ongoing.

While Black and a third member, Doug Meller of the League of Women Voters, recently wrote in a Honolulu Star-Advertiser op-ed that they are both opposed to excessive government secrecy, they also agreed “that there may be room for a limited exception on public access to the raw thought process of government agencies before a decision is made.”

That said, Black and Meller made clear in their article that the working group is a work in progress. One of the sticking points in the proposed legislation, they pointed out, centers on whether it is a good idea or not to redact names of agency officials and employees.

This much Black, Meller, Park and the Civil Beat Editorial Board agree on: Public input is needed on the draft legislation. The deadline for written comments is noon Monday, and the deadline to register to provide oral testimony at the working group’s Tuesday meeting is 9 a.m. that same day.

Our take?

With a new administration and a newly constituted Legislature coming into power, Hawaii would greatly benefit by a new executive director for the Office of Information Practices.

Meanwhile, considering the long and sordid history of government agencies when it comes to lack of openness, there is a real concern that messing with UIPA and revisiting the Supreme Court’s guidance will not result in greater transparency, nor restore the public’s trust.

The law directs state and local government officials to operate as openly as possible. Allowing them to hide how they’ve reached a decision until it may well be too late for the public to object is not doing the public’s business in the open.

Please take the time to submit a comment before Monday’s deadline. Or send a note to your lawmaker in anticipation of the issue coming before the Legislature in a few months. Tell them the only legitimate function that is being frustrated is the ability of the public to watch over how its business is being handled.

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About the Author

Civil Beat Editorial Board

The members of The Civil Beat Editorial Board are Chad Blair, Patti Epler, Nathan Eagle, Kim Gamel, John Hill and Matthew Leonard. Opinions expressed by the editorial board reflect the group’s consensus view. Not all members may participate in every interview or essay. Chad Blair, the Politics and Opinion Editor, can be reached at cblair@civilbeat.org.

Latest Comments (0)

The deliberative process boils down to exhortation or dissuasion which is "the raw thought process of government agencies." This process falls within the context of the Constitution: of, by, and for the people. The people in turn are defined by the thought process of government. If government agencies are allowed to shield "raw thought" from the public, then the people are unable to determine if representatives are acting in the interest of the people. "Raw thought" within government belongs to the people as those thoughts are of, by, and for the people. Shielding the public from the "deliberative process" is a "privilege" only for those in government who want to make decisions beyond the body of the people.

SwingMan · 11 months ago

Perhaps we can strengthen the public records law so that the next governor can't pause it during the next pandemic or other emergency like Ige did. For over 16 months.

Westslope · 11 months ago

I am soooo sick of OIP - gangsters FOR secrecy……

Augustus · 11 months ago

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