Office of Information Practices

March 21, 2012

As regular readers of our What’s New articles know, the state Office of Information Practices (OIP) has kept you informed of the development and progress of our legislative proposals, including Senate Bill 2858, Senate Draft 1, which clarifies the process for agencies to appeal from OIP decisions under the Uniform Information Practices Act (UIPA) and the Sunshine Law. Long before the session even started, OIP explained the challenges, solicited comments, and provided a detailed summary of its legislative proposal to clarify the uncertainty surrounding the appeals procedure in light of a 2009 appellate court decision that allowed an agency to judicially challenge an OIP decision. Despite OIP’s efforts and the wealth of information freely available on OIP’s website at hawaii.gov/oip, there are still people who have misread S.B. 2858, S.D. 1 and have urged against its passage.

Quite simply, what happened during the 2009 case is what OIP is seeking to avoid with its proposed legislation: government agencies litigating against each other for years at taxpayer expense, while adversely affecting OIP’s ability to assist the public and agencies at no cost and in a reasonable amount of time. As OIP explained in its What’s New articles and in its testimony before the Legislature, S.B. 2858 will eliminate the need for continued litigation over jurisdictional issues as it would provide for a simple and uniform appeals process and a high standard of review that agencies must meet to judicially challenge OIP decisions under either the UIPA or the Sunshine Law. Neither OIP nor the record-requesting member of the public would be made parties to the new appellate procedure, and thus, the agency could not win by default if OIP or the requester failed to appear in the proceeding. The judicial review would be of the OIP decision itself, rather than a suit against OIP or the requester personally. Just as a judge is not sued or required to appear in a case challenging his or her decision, OIP would not be required to appear as a party in the appeal. Similarly, requesters would not be named as parties and so would not have to incur attorney fees and costs, unless they choose to intervene in the appeal, as requesters and OIP would have the right to do.

For the agencies, the bill finally provides a clear path to judicially challenge an OIP decision. Currently, the UIPA does not give the agencies a right to appeal and its legislative history is clear that agencies should not be suing agencies. Even the Sunshine Law has no provision expressly giving agencies the right to appeal from OIP decisions. Although the appellate courts have recognized the agencies’ right to appeal under its “any person” standard, OIP did not exist at the time the Sunshine Law was enacted in 1975 and the “any person” standard was more likely established by the Legislature to allow an individual to sue Sunshine Law boards, not to allow the boards to sue OIP. S.B. 2858, S.D. 1 removes these jurisdictional barriers by giving agencies an express right to judicially appeal within 30 days of OIP’s decision being challenged. The proposed House Draft 1 would encourage agencies to timely exercise their new right rather than ignore an OIP decision rendered in the public’s favor.

In light of the various changes to each law over the years, it is time for the Legislature to clarify agencies’ appeal rights under both laws. Since 1998, both the UIPA and the Sunshine Law have been administered by OIP. Additionally, both laws have a common purpose. Sometimes, a case will involve disputes concerning both laws. Thus, both laws should now have the same appeals procedure as proposed in S.B. 2858, S.D. 1 (soon to be amended as a House Draft 1). 

For the latest information concerning open government news, look here on the What’s New page, or ask to be placed on OIP’s e-mail list for weekly What’s New updates.