The state Office of Information Practices (OIP) responded to a staggeringly misleading report released by the Civil Beat Law Center (CBLC) yesterday. Like last year’s CBLC report, this year’s report contains the same flawed methodology, inaccurate assumptions, bias, and lack of understanding of how and why OIP conducts its business, and it also makes misleading comparisons to other states while omitting relevant facts to support its predetermined conclusion. OIP’s responses, including both CBLC reports, are posted on the Annual Reports page at oip.hawaii.gov.
The CBLC report compared OIP’s often lengthy formal and informal opinions written to withstand judicial scrutiny to the typical one- to two-page decisions of other states. Based on this inaccurate comparison, the refusal to consider OIP’s same day resolution of 956 Attorney of the Day (AOD) inquiries or the historic underfunding of OIP, and other distortions of the facts, the CBLC report gave the misleading impression that OIP takes over two years to resolve all complaints and concluded that a statutory mandate is needed to force OIP to resolve all complaints within six months of filing, but stated that no additional funding or staffing is needed for OIP.
Although CBLC is well aware that Hawaii’s courts must defer to OIP’s opinions that are judicially appealed unless they are “palpably erroneous,” the report failed to appreciate the time and analysis that must go into preparing OIP’s opinions that should “speak for themselves” if challenged in court and not require OIP’s intervention. One- or two-page opinions, as produced in other states, are unlikely to hold up to judicial scrutiny in Hawaii.
If people want short responses comparable to that given in other states, then most people already receive OIP responses within the same day through the AOD service, which was ignored in the CBLC report. As an alternative to time-consuming opinions often required in appeals and requests for opinions, OIP provides same day informal advice through its AOD service that often prevents disputes from arising or quickly resolves them. For example, if OIP is made aware of an improper meeting notice through an AOD inquiry, it will orally notify the board and is usually successful in having the meeting postponed or meeting notice revised, without having to escalate the matter to a formal appeal. As another example, based on OIP’s advice in response to AOD inquiries, agencies will often disclose information being sought by a requester. OIP typically responded the same day to 956 AOD inquiries, which was 77% of the 1,234 total requests for OIP’s services in FY 2017. Of the 278 formal cases filed with OIP in FY 2017, nearly 70% (193) of the formal cases were resolved in the same year, even though 48 cases were filed in the last two months alone. When the 278 formal cases are considered along with the 956 AOD inquiries, OIP responded to 93% of total requests for services in the same fiscal year.
Contrary to the report’s claims, the number of new formal cases filed with OIP has substantially increased in five of the last seven years, for an average increase of nearly 17% per year, as shown in the attached chart. Despite OIP’s increased productivity, the backlog of formal cases tracks the number of new formal cases filed each year, over which OIP has no control.
Yet, in addition to the 1,234 formal cases and AODs, OIP does so much more. Especially now, OIP is very busy monitoring, testifying, and working with other stakeholders on legislative issues. Throughout the year, OIP provides training materials and live training sessions that agencies, boards, and their attorneys rely upon to help them remain in compliance with the UIPA and Sunshine Law, and monitors lawsuits involving these laws. This year, OIP has been extremely busy with rulemaking. Every year, OIP produces three annual reports, two of which summarize the UIPA Log results for state and county agencies.
OIP is now doing double the work with half the resources it had 24 years ago. OIP has only 8.5 FTE authorized positions and a legislative appropriation of $576,855, which is $304,473 less in unadjusted dollars and only 42% of what it had on an inflation-adjusted basis ($1,374,543) in FY 1994, and 40% less in authorized positions, when it was only responsible for the UIPA. Because of this historic underfunding, formal cases requiring opinions that were as old as 12 years had been left behind by past OIP administrations. OIP has cleared up those oldest appeals and is now giving priority to cases from FY 2015 over later filed cases requiring opinions.
As provided in its FY 2017 Annual Report, OIP already has a goal within five years to resolve formal cases within 12 months of filing, if they are not in litigation or filed by requester who have already had two or more cases resolved by OIP in the preceding 12 months. For OIP to more quickly reach its own one-year goal or a new goal to resolve formal cases within six months of filing, it will need by July 1, 2018, additional appropriations over and above its current supplemental budget request for $115,000, as well as additional positions that are not in its request, and OIP will also need at least three years to hire and train the new people to reduce the current backlog and implement the new goal.
The Legislature could also consider statutory changes that would enable OIP to resolve appeals faster. Other states cited in the CBLC report for fast resolution times have provisions allowing them to not accept new cases that are incomplete, to limit repetitive case filings, to more readily dismiss cases, to charge for opinions, or to penalize people filing frivolous appeals. Indeed, the Senate could immediately reappoint conferees to consider H.B. 1518, S.D. 2, which was in a conference committee last session, that would allow agencies to seek court injunctions to prevent requesters who abuse the UIPA. Requester abuse has been a big problem for many agencies and prevents OIP from resolving appeals faster.
Without the necessary funding, positions, and possible legislative changes, the public must be aware of unintended consequences. OIP may be forced by a six-month mandate to revamp its opinions to short, conclusory decisions like other states, which could be more readily challenged in the courts, lead to greater strain on judicial resources, longer delays, and greater expense and less certainty for complainants. If the courts no longer deferred to OIP’s shortened opinions, the agencies may be more willing to challenge OIP’s opinions and may not feel it necessary to voluntarily comply with OIP’s AOD advice as they now do. OIP will not have the time to do its training, legislative, and other duties, which may have the net effect of lowering agency compliance and increasing the number of new cases filed due to more disputes. While agencies may alternatively seek help from their government attorneys, the public will have nowhere to turn for neutral advice nor do most people have the time, money, or desire to challenge agencies in court. Ultimately, these unintended consequences will weaken OIP’s authority and the public will suffer.
OIP certainly does not want these unintended consequences to come to fruition, but wonders why CBLC has not brought them up as well as its motive for attacking OIP. For more, please see OIP’s attached response.