June 7, 2011- OIP Looks to the Future: 2012 Legislative Proposals

Posted on Jun 7, 2011 in What's New

The Office of Information Practices (OIP) is already looking ahead to the 2012 legislative session and has begun studying issues that may require clarification or updating of Hawaii’s open government laws, including agencies’ right to appeal OIP’s determinations and the impact of social media on open government laws. 

OIP is charged with administration of Hawaii’s open government laws: the Uniform Information Practices Act (“UIPA,” Chapter 92F, H.R.S.) and the “Sunshine Law” (Part I of Chapter 92, H.R.S.). While the UIPA clearly gives non-government requesters the right to sue an agency to compel disclosure of government records even after an OIP determination that the agency was justified in denying access to the records, the law does not specifically give an agency the same right to appeal an OIP determination that the agency was required to disclose government records. The agencies’ lack of a right to challenge OIP’s determinations was expressly acknowledged in a legislative conference committee report of the original UIPA, which stated that “[t]he legislative intent for expedience and uniformity in providing access to government records would be frustrated by agencies suing each other.”

Based on their interpretation of the Sunshine Law, however, the courts have allowed a county to challenge an OIP determination by directly naming OIP in an appeal, rather than by simply moving the dispute between the county and the requesters to the court as in a typical appeal. Consequently, during the next legislative session, OIP intends to seek clarification of the appeals process and OIP’s authority when issuing determinations. In the meantime, OIP will continue to provide advisory opinions instead of determinations.

Another issue for potential legislative action concerns the government’s use of social media in communicating with the public, which will also be the main topic of the Hawaii State Association of Counties’ conference on Maui on June 23, 2011, at which OIP Director Cheryl Kakazu Park will be a panelist. “There have been vast changes in technology and communication since 1975 when the Sunshine Law was first enacted and since 1988 when the UIPA was enacted. Today, there are new tools and methods to share information, expand discussion, and engage more people,” Park noted. “These changes in technology and people’s use of social media, such as Facebook and Twitter, may require modernization of our open government laws in order to avoid violations of our current laws. Therefore, our office is seeking input from various government agencies and public interest groups to see if changes to the open government laws are necessary and whether there will be broad support for proposed legislation that OIP may be willing to sponsor in the 2012 session.”

For inclusion in its 2012 legislative package, OIP will consider proposals that are supported with specific facts or data, such as actual examples of situations indicating a need for revisions, the adoption of similar legislation by other states or the federal government, or actual costs of compliance. “Please keep in mind,” Park said, “that OIP administers, but does not make, the laws. If there are reasonable legislative proposals that various interest groups are willing to support, then OIP will consider including those proposals in our legislative package next year. And while not all proposed changes to the law will be supported by OIP as a part of our legislative package, people always have the right to present their own proposals directly to the Legislature, which makes the laws.”

Government entities that would like to participate in developing OIP’s 2012 legislative package must remember to follow the usual Sunshine Law requirements to conduct official business, which includes the establishment of permitted interaction groups to allow more than two members of the same board or agency to officially investigate and report on possible legislative solutions. Proposals to be considered for possible inclusion in OIP’s legislative package may be submitted to oip@hawaii.gov by July 5, 2011.