The state Supreme Court ruled Hawaii law has no ‘deliberative process privilege’, but Senators are trying to create one.

Budget documents and other records that are now routinely made public by state and county agencies might instead be kept secret under a bill that won tentative approval from a Senate committee on Tuesday.

The bill is a reaction to a 2018 ruling by the state Supreme Court that effectively reversed nearly three decades of decisions by the state Office of Information Practices and required state and county agencies to open up certain government records to the public.

The court’s decision was important because over the years various government agencies have withheld a variety of different records on the grounds that they were “pre-decisional” and releasing them would frustrate a government purpose.

Hawaii State Supreme Court Associate Justice Sabrina McKenna questions attorney’s during oral arguments Civil Beat vs city. 1 june 2017.  photograph by Cory Lum/Civil Beat
Hawaii State Supreme Court Associate Justice Sabrina McKenna questions lawyers from the bench. The court ruled in 2018 that the state public records law does not contain a ‘deliberative process privilege’ that would allow government agencies to withhold records from the public. (Cory Lum/Civil Beat/2017)

Some of the records in question included consultants’ reports, revenue estimates for proposed legislation, evaluations of an agency’s overall performance, forecasts of general fund tax revenues and even audit recommendations.

OIP for years had opined that state and county agencies had a “deliberative process privilege” that allowed them to withhold pre-decisional records from the public. OIP said those records could be withheld if releasing them to the public would “frustrate a legitimate government function.”

But the state Supreme Court overruled OIP in the 2018 decision, declaring there was no mention of any “deliberative process privilege” in Hawaii’s open records law, which is officially known as the Uniform Information Practices Act.

In response to the court’s decision, OIP last year supported a bill that would have inserted the deliberative process privilege into the state open records law after the fact.

That bill failed, but lawmakers instead created a seven-member working group to recommend changes to the open records law in the wake of the court decision. That working group produced what became Senate Bill 720, which again proposes to add the deliberative process privilege into the state open records law.

Under the proposed new law, “deliberative” and pre-decisional records could be withheld by agencies for a time but would have to be released after a final decision is made on the issues the records address. However, some redactions would be allowed to conceal the identities of some government officials involved.

That bill was tentatively approved by the Senate Government Operations Committee on Tuesday. Committee Chairman Angus McKelvey said the bill is “a consensus measure among many different competing interests. We’d like to keep it moving forward.”

According to the final report by the working group submitted to state lawmakers in December, there was a consensus in favor of the bill — with one exception. Lance Collins, who represented Common Cause Hawaii on the panel, said the bill was unnecessary.

In a dissent to the main working group report, Collins noted the court’s decision was four years ago and “no empirical evidence has been presented, to date, to demonstrate or support the claim that agencies’ decision-making have been or are being impaired. There has been no need demonstrated by the experience of the last four years.”

Collins also argued the new deliberative process privilege in the bill would probably be abused.

“Virtually all activities of an agency other than a final decision that executive agencies make, can be and have been characterized as part of the deliberative process,” and subject to the privilege, he wrote.

Another member of the working group was Brian Black, executive director of the Civil Beat Law Center for the Public Interest, who provided the working group with data showing that 16 other states have no “deliberative process privilege.” Those states include Arizona, Connecticut, New Mexico and Wisconsin.

Black successfully represented Honolulu Civil Beat in the court case that prompted the state Supreme Court to reject the deliberative process privilege in 2018. Black declined comment on SB 720 last week.

Supporters of the bill included the Employees’ Retirement System, the state Office of Budget and Finance and Carrie Okinaga, general counsel for the University of Hawaii system. Okinaga was also a member of the working group that produced the bill.

The final report from the working group declared the majority of group believes the proposed bill “reasonably balances the public’s interest in disclosure and the agency’s ability to fully consider and make sound and informed decisions.”

The measure now goes to the Senate Judiciary Committee for further consideration.

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