On August 5, 2021, Governor David Ige issued his Emergency Proclamation Related to the COVID-19 Response (Proclamation) which supersedes the prior proclamations issued in response to the COVID-19 pandemic. The Proclamation contains no suspension of Hawaii’s Uniform Information Practices Act (Modified), chapter 92F, HRS (UIPA). This means that the UIPA and all of its deadlines are back in full effect.
Early in 2020, in response to the COVID-19 pandemic, the UIPA was temporarily suspended in its entirety and the Sunshine Law, part I of chapter 92, HRS, was partially suspended by a prior proclamation. Because the UIPA was suspended in its entirety, OIP’s powers and duties found in part IV of chapter 92F, HRS, were also suspended. Subsequent proclamations restored OIP’s powers and duties found in part IV of the UIPA, except that the UIPA and OIP’s rules were “suspended to the extent they contain any deadlines for agencies, including deadlines for the OIP, relating to requests for government records and/or complaints to OIP.” The current Proclamation let all UIPA suspensions expire. For agencies subject to OIP appeals opened during the UIPA deadline suspension, OIP is disinclined to grant any further extensions of due dates, so agencies are urged to immediately file any responses due to OIP.
The Proclamation also contains a partial suspension of the Sunshine Law, part I of chapter 92, HRS. For background, a new law passed by the Legislature and currently found in Act 22 (2021 Regular Session) makes permanent changes to the Sunshine Law to allow remote meetings. Act 220 becomes effective on January 1, 2022.
The Proclamation continues to suspend the Sunshine Law “only to the extent necessary to minimize the potential spread of COVID-19 and its variants.” It allows boards to continue conducting remote meetings using interactive conference technology (ICT), while retaining the option to conduct traditional in-person meetings at a single meeting site or at multiple meeting sites connected by ICT. “Meetings shall be conducted according to the requirements established in Exhibit C [of the Proclamation], which incorporates the intent of the Legislature in Act 220 (2021).”
In place of the remote meeting guidelines set out in prior emergency proclamations, Exhibit C of the Proclamation contains a simplified version of most of the provisions for remote meetings set out in Act 220, which OIP has previously summarized on its Legislation Page. Because Act 220’s Sunshine Law amendments will not take effect until January 1, 2022, the Proclamation now creates an option to hold remote meetings without Act 220’s new requirement to conduct at least one in-person meeting, and with most procedures presented as guidelines rather than mandates. Therefore, under the Proclamation, boards can continue to hold fully remote meetings, with board members and staff as well as members of the public participating via ICT (e.g., Zoom, Webex) from nonpublic locations. This Proclamation is expected to continue through October 4, 2021.
The two firm requirements for remote meetings under the Proclamation are (1) that boards file notice generally as required by the Sunshine Law and include how the public can remotely view and testify at the remote meeting; and (2) that boards recess for up to thirty minutes to restore communication if the remote meeting connection goes down. The additional recommended guidelines include allowing interaction among board members and the public; having board members visible and audible during the meeting; treating board members participating remotely as present at the meeting; announcing the names of participating members; conducting votes by roll call unless unanimous; and recording remote meetings when practicable. The Proclamation also provides that a good faith error resulting in the public being unable to view the meeting or testify cannot be used to invalidate a board action.
Because the remote meeting guidelines in the Proclamation have essentially given effect to a simplified version of the new law – without the requirement for an in-person meeting site available to the public – OIP recommends that boards use this interim period before January as an opportunity to practice following Act 220’s remote meeting procedures, while any errors in execution will be a departure from the Proclamation’s guidelines rather than a potential Sunshine Law violation. For now, therefore, boards seeking guidance on the Proclamation’s requirements in Exhibit C are urged to review OIP’s summary of Act 220.
To supplement the already posted summary of Act 220, OIP will continue working to revise its training materials by this Fall to train boards on Sunshine Law’s new requirements before the amendments go into effect next year. Due to the loss of two of our five staff attorneys, OIP is unfortunately unable to provide individualized training on Act 220 but will continue to develop new training materials and will strive to answer specific questions about the new law through our Attorney of the Day service. For fastest service, questions should be submitted by email to [email protected]. While email remains the preferred method of contact, OIP can also be reached by phone at (808) 586-1400, fax at (808) 586-1412, or postal mail at 250 S. Hotel Street, Suite 107, Honolulu, Hawaii, 96813.
Any new training materials will be announced by OIP through What’s New articles, which you can find archived on OIP’s website or emailed to you upon request. To be added to OIP’s email list, please email [email protected] Also, if you would like to receive What’s New articles or attachments in a different format, please contact OIP at (808) 586-1400 or [email protected]
Finally, please understand that OIP still cannot accept appeals based on causes of action dependent on alleged violations of the portions of the Sunshine Law that are suspended and therefore not in effect.
Welcome to the website of the Office of Information Practices (OIP), whose mission is
“ensuring open government while protecting individual privacy.”
OIP administers two laws to promote open and transparent government in Hawai’i:
- the Uniform Information Practices Act (UIPA), HRS Chapter 92F, which requires open access to government records, and
- the Sunshine Law, part I of HRS Chapter 92, which requires open public meetings.
Both laws are intended to open up governmental processes to public scrutiny and participation by requiring government business to be conducted as transparently as possible, while balancing personal privacy rights guaranteed under the Hawaii State Constitution.
OIP provides uniform interpretation, advice, and training on these laws to nearly all of Hawaii’s state and county agencies and boards and to the general public. OIP renders advice and assistance on questions concerning the public’s right to access to government records or meetings, and also provides training to help agencies comply with the laws. Although the public has the right to go to court without having to involve OIP, it is not necessary to hire attorneys or observe judicial formalities to obtain OIP’s assistance, and OIP’s free and informal proceedings are not subject to the contested case procedures of HRS Chapter 91.
To explain the open government laws’ requirements, OIP has training tools and guides readily available on this website. Training materials and OIP’s annual reports are posted on this website and there are links to other open government agencies around the world. In the What’s New section, OIP regularly provides updates on its activities and has links to open government news from around the world. To begin or stop receiving OIP’s e-mailed What’s New updates, please e-mail [email protected].
Through OIP’s Attorney of the Day service, members of the public or government agencies can e-mail [email protected] or call (808) 586-1400 to receive (usually within 24 hours) general, non-binding advice regarding the UIPA or Sunshine Law. If further action is necessary, OIP may conduct an investigation. When access to a public record has been denied by a government agency, the requester may file an appeal with OIP. OIP also renders formal or informal opinions, which are enforceable by the courts. OIP’s opinions, including a searchable subject matter index for UIPA opinions, and a searchable subject matter index for Sunshine Law opinions, can be found on this website, along with the laws, rules, and various forms.
In addition to the UIPA and Sunshine Law, OIP administers the Records Report System (RRS), a computerized database (without the actual records) describing the more than 29,000 record titles of the various types of government records maintained by state and county agencies that may be available for public access. OIP also trains and assists agencies to use the UIPA Record Request Log and uploads their Log summaries to the State’s centralized website at data.hawaii.gov.
Through this website, you have access to a wealth of open government information and OIP is able to cost-effectively and efficiently share the knowledge of its experienced staff members to encourage greater awareness of and compliance with Hawaii’s UIPA and Sunshine Law. For an overview of the website’s features, click on this link. Thank you for visiting OIP’s website and we hope that you will find most of the answers to your open government questions here.
If you require an auxiliary aid or accommodation due to a disability, please contact (808) 586-1400 or e-mail [email protected]. OIP will strive to return your initial call or e-mail by the end of the next business day.