KEEPING ‘EM HONEST – THE FACTS MATTER

Posted on Feb 21, 2018 in Featured, What's New

The state Office of Information Practices (OIP) would like to thank the people who have taken the time to learn the facts provided in OIP’s two responses to misleading reports by the Civil Beat Law Center (CBLC),[1] which were discussed in our last What’s New article and are posted on the Annual Reports page at oip.hawaii.gov.  As CBLC continues to use the same flawed methodology and inaccurate comparisons in additional articles, OIP’s response remains the same.[2]  And while CBLC claims that it “has made recommendations, offered to assist OIP, and suggested working toward a collective solution,”  these apparently were made through the above-referenced reports that CBLC published (with only a few days’ advance notice to OIP during the busy legislative session), which recommended the elimination of same day advice through OIP’s Attorney of the Day (AOD) program, criticized OIP’s “first in, first out” policy to resolve older cases before newer ones unless exceptions were warranted, and called for a statutory mandate to resolve cases within six months without additional personnel or funding for OIP.  CBLC also claims that OIP resolved cases faster in the past with less staff, but ignores information from some of the same staff[3] who have first-hand knowledge that previous directors had different priorities; many past OIP “opinions” would not meet OIP’s current standards for opinions designed to withstand judicial scrutiny; and many of the hardest cases were left unresolved by prior directors faced with budget and personnel cutbacks and furloughs, but have since been resolved during the current director’s term as a result of the first in, first out policy.  By focusing solely on opinions written, CBLC ignores all the other time-consuming work that OIP must do, which includes training, legislation, and, for the second time under the current director, rulemaking.

CBLC dismisses the historic underfunding of OIP, which today has more than double the work but roughly half the funding and personnel that it had 24 years ago when it administered only the UIPA, and now has far less resources than comparable State good government agencies that do not have OIP’s more extensive jurisdiction over the executive, legislative, and judicial branches at both the state and county levels.  Despite administering the UIPA and, since 1998, the Sunshine Law and experiencing an average 17% increase per year in new formal cases since 2011, OIP’s total budget for FY 2018 is only $576,855 with 8.5 approved positions, compared to $827,537 and 15 positions in FY 1994.  If adjusted for inflation, OIP’s budget in FY 1994 would be equivalent to $1,374,543 today, which would be closer to amounts appropriated to other good government agencies in Hawaii.  For example, general fund appropriations for FY 2018 personnel services only are $944,402 for 11 authorized positions for the State Ethics Commission; $1,256,599 for 14 positions for the State Ombudsman’s office; and $2,630,927 for 37 positions for the State Auditor’s office.

OIP already resolves 77% of informal requests through the same-day AOD service and 93% of all requests in the same year.  OIP also already has a goal of resolving all formal cases within 12 months of filing, if they are not in litigation or filed by requesters who have had two or more cases resolved by OIP in the preceding 12 months.  In closing, OIP appreciates the support of people who truly want to help OIP meet or exceed this self-imposed goal by advocating for more funding and personnel for OIP, along with a reasonable amount of time to hire and train new persons.   Mahalo nui loa.

            [1]           CBLC is a legal advocacy corporation that is legally separate from the Civil Beat online news organization, but both share common directors, officers, and benefactors.  The online news organization’s Board of Directors consists of Pierre Omidyar (President), Randy Ching, and Mike Mohr (Secretary, Treasurer), and Civil Beat claims to receive substantial financial support from Pierre and Pam Omidyar through the Omidyar Ohana Fund.  The 2016 Form 990 of the Civil Beat Law Center for the Public Interest, Inc. (available via http://www.guidestar.org) shows R. Brian Black as the President, Michael G. Mohr as the Treasurer, and Pierre Omidyar, Patti Epler, and Paul Alston as directors.  Patti Epler is the Editor and General Manager of Civil Beat.  Paul Alston is a partner at the law firm of Alston, Hunt, Floyd, & Ing, where Mr. Black’s wife is an attorney.  CBLC shares office space in downtown Honolulu with other organizations supported by the Omidyars.

Unlike OIP that is a neutral party and statutorily required to help government agencies as well as the general public, CBLC may select the parties it wishes to represent and has typically filed or intervened in lawsuits against government entities.

            [2]           For example, in a February 16, 2018 article posted by Civil Beat, CBLC continues to calculate the “average days to decision on major matters” by counting cases opened and closed within OIP directors’ terms, but fails to account for differences in term lengths; omits data about two other OIP directors with long term lengths similar to the current director’s term; narrowly defines “major matters” to exclude OIP’s timely case resolutions without written “opinions;” compares dissimilar “opinions;” and penalizes the current director for resolving the oldest, more difficult cases dating back 12 years that had been left unresolved by previous directors.  The specific flaws with CBLC’s methodology are summarized on pages 4-5 of OIP’s response to CBLC’s 2017 report.

            [3]           Three of OIP’s staff attorneys and one administrative staffperson have worked at OIP for 12 or more years; in fact, one was the first attorney hired by OIP in 1988 and also worked for the House Judiciary Committee that passed the legislation creating OIP.  OIP is fortunate to have such unparalleled institutional memory spanning 30 years of its 29-year existence.