02-08

Posted on Sep 6, 2002 in Formal Opinions

Opinion Letter No. 02-08
September 6, 2002
‘Olelo: The Corporation For Community Television and Ho’ike: Kauai Community Television, Inc.

[NOTE:  This opinion was partially overruled by ‘Olelo v. OIP, 116 Haw. 337.]

The Community Television Producers Association asked the OIP to determine whether ‘Olelo: The Corporation for Community Television (“‘Olelo”) is a state agency or a quasi public body. In addition, The League of Women Voters of Kauai asked the OIP to reconsider its opinion that Ho’ike: Kauai Community Television, Inc. (“Ho’ike”) is not subject to the requirements of the Uniform Information Practices Act (Modified), chapter 92F, Hawaii Revised Statutes (“UIPA”).

The OIP found that ‘Olelo and Ho’ike are corporations owned, operated, or managed by or on behalf of this State as set forth under section 92F-3 of the Hawaii Revised Statutes, and are, therefore, required to follow the UIPA. To the extent that this opinion is in conflict with OIP Op. Ltrs No. 93-18, No. 94-23, and No. 94-24, those opinions are rescinded by this opinion.

The Director (“Director”) of the Department of Commerce and Consumer Affairs (“DCCA”) has required, as the local franchising authority, the cable franchisee to set aside public, education, and governmental access channels (“PEG access channels”). Both ‘Olelo and Ho’ike were originally created by the DCCA, notwithstanding their current corporate form, and are funded almost entirely through funds allocated pursuant to the Director’s authority under the Hawaii Cable Communications Systems Law, chapter 440G, Hawaii Revised Statutes (1993) (“HCCCSL”).

The OIP concluded that although the DCCA has not exercised close control over the administration of the PEG access channels, the DCCA does have significant and direct control over ‘Olelo and Ho’ike through its appointment and removal power of the majority of appointees on the boards of those corporations. The OIP concluded that the DCCA exercises indirect control over the existence of ‘Olelo and Ho’ike through the contractual agreements designating both as the Director’s designee and terminating their corporate existence when that designee status ends.

The HCCSL and the contractual provisions together set forth a clear State policy to have the DCCA administer, through the Director’s designees, cable channels for use by the public and for educational and governmental uses. The OIP concluded that the DCCA performs a government function by providing for PEG access channels, and that the administration of such channels, but not editorial control over the public portion of PEG access channels, is a government function performed by ‘Olelo and Ho’ike by or on behalf of the DCCA.

Finally, as the DCCA has used its power to require payments of money by the Cable Operator to support the PEG access channels, given the financing arrangements between the DCCA, the Cable Operators, and the Public Access Organizations, and the federal case law treating similar funding arrangements as public funding, the OIP found that these monies paid to the Public Access Organizations are public funding.

As a matter of public policy, the Legislature declared that the formation and conduct of public policy — the discussions, deliberations, decisions, and actions of government agencies — be conducted as openly as possible. Haw. Rev. Stat. § 92F-2 (1993). The OIP is required to construe the UIPA to promote the chapter’s purposes and policies, which include enhancing governmental accountability through access to government records.

Therefore, because ‘Olelo and Ho’ike are owned, operated, or managed on behalf of this State, their records are also subject to this policy as set forth in the UIPA. When the records of ‘Olelo and Ho’ike are accessible to the public, government can be held accountable for its actions, even when government’s actions are carried out by separate entities.

 

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