House Bill 719 to cap copying fees for public records was abruptly amended to allow agencies to withhold certain pre-decisional records from the public.

Two Senate committees signed off on a privately negotiated deal Thursday that would create a new “deliberative process privilege” that allows government agencies in Hawaii to withhold certain government records from the public, at least temporarily.

The Senate Ways and Means Committee and the Senate Judiciary Committee both voted unanimously to insert language into House Bill 719 that would allow state and county agencies to withhold “pre-decisional” documents until final decisions are made on the issues they address.

HB 719 originally only included language to cap the fees that agencies can charge the public for searching, segregating and copying public records.

A very similar bill to cap copying and search fees was approved by the Legislature last year, but was vetoed by Gov. David Ige. The House Commission to Improve Standards of Conduct then revisited the issue this year, and proposed a modified draft of the fees bill that became HB 719.

Combining those two seemingly disparate issues together in one bill — as the Senate committees did Thursday — was the only way to keep the fee cap bill alive this year, said Brian Black, executive director of The Civil Beat Law Center for the Public Interest.

Brian Black Executive Director Civil Beat Law Center for the Public Interest. 21 feb 2017
Brian Black, executive director of the Civil Beat Law Center for the Public Interest, and Cheryl Kakazu Park, director of the state Office of Information Practices. The deliberative process privilege proposal was combined with a bill to limit copying fees for public records. (Cory Lum/Civil Beat 2017)

Black said the compromise was a good deal for the public on balance, but not everyone was pleased.

Lance Collins, a Maui lawyer who represented Common Cause Hawaii on a working group that studied the deliberative process privilege last year, argued in a report on that subject that no one ever produced any proof that the deliberative process privilege is necessary.

Collins said he recognizes the problem with the gigantic fees that government agencies sometimes try to charge for records, which he describes as “a weapon to block access to records.”

But he said the compromise in the HB 719 is disappointing because in trying to address the problem of excessive fees, the bill would essentially also create a new way for government to withhold information and “basically take away access.”

“Our system of oversight of public records is broken, and it’s unfortunate that in the effort to fix it, these types of compromises are being made,” Collins said.

Black, who negotiated with the state attorney general to develop the new language in HB 719, represented Honolulu Civil Beat in a court case that successfully challenged the claim Hawaii law already had a deliberative process privilege going back years.

That legal battle began back in 2015 with a request by Honolulu Civil Beat reporter Nick Grube, who demanded records from Honolulu that showed how much money city departments had originally sought in their annual budget requests.

Those departmental requests generally are modified or 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.

That argument by the city 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 privilege that protects all pre-decisional records.

Civil Beat then sued for the records in a case known as Peer News LLC vs. City and County of Honolulu, and Black represented Civil Beat in the lawsuit.

The state Supreme Court in 2018 rejected the city’s argument, pointing out there was no mention of any “deliberative process privilege” for agencies in Hawaii’s open records law, known as the Uniform Information Practices Act.

Since then state agencies and OIP have tried on a number of occasions to have the privilege added into the state open records law, which would allow them to once again withhold some pre-decisional records.

Hawaii State Capitol.
The late session deal struck between the state Attorney General and lawyer Brian Black of The Civil Beat Law Center for the Public Interest was unanimously approved by both the Senate Ways and Means Committee and the the Judiciary Committee. (Cory Lum/Civil Beat/2021)

The new draft of HB 719 is the latest attempt to create a deliberative process privilege in state law. The Civil Beat Law Center and the state Attorney General’s Office this week both submitted proposals to lawmakers to amend HB 719 to include a deliberative process privilege.

Up until Thursday, the thrust of HB 719 was to limit the fees that government agencies can charge for public records. It would impose a cap on copying costs charged to the public for government records, and limit what agencies can charge the public for searching for records, reviewing them and segregating documents.

The measure also provides for a waiver of fees “when the public interest is served by the record’s disclosure.”

As for packaging the two issues together, Senate Judiciary Chairman Karl Rhoads said that’s part of politics, and “there’s other good stuff in the bill that I would like to see passed.”

He said he remains skeptical the pre-decisional privilege is necessary, adding: “I still feel like that part of it — this is a solution looking for a problem.”

“There are members in the Senate in particular who think there needs to be some protection for pre-decisional notes and memos and stuff, and then quite a few of us think that having to pay a lot to get government records shouldn’t be a barrier to getting them,” Rhoads said. “This is the amalgam of those two policy goals.”

The narrow version of deliberative process privilege inserted into HB 719 does not necessarily undermine the Supreme Court ruling, according to Rhoads and Black.

For one thing, even records that are withheld as as pre-decisional would be considered public once a final decision is made on the issues involved, under the proposal.

Over the years agencies have argued that a variety of records could be withheld under the deliberative process privilege, including consultants’ reports, revenue estimates for proposed legislation, evaluations of an agency’s overall performance, forecasts of general fund tax revenues and even audit recommendations.

But Black said that in each of those cases, when the decision that those documents relate to has been made, the records become public. If the documents do not relate to any specific decision, than the pre-decisional exemption would not apply and the records are still public.

The proposed new law creating the pre-decisional privilege is also temporary, and will end in five years unless the Legislature renews it.

“It’s a form of compromise,” Black said. “In order to move forward the very important aspects of this bill with respect to the cost of public records, and making sure that cost is not an obstacle for folks to be able to educate the public about what is happening in government, the Law Center was willing to have a limited form of deliberative process privilege.”

During the brief discussion on the new draft of the bill on Thursday morning, Ways and Means Committee Chairman Donovan Dela Cruz incorrectly suggested the Civil Beat Law Center for The Public Interest and Honolulu Civil Beat are one and the same. They are not.

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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