LEGISLATION: Proposals and History

 

HISTORY:

See below for the bill and legislative materials relating to the 2012 statutory amendments allowing agencies to appeal OIP decisions and clarifying the standard of review to be applied by the courts to OIP decisions in UIPA and Sunshine Law cases.

S.B. 2858, S.D. 1, H.D. 2, C.D. 1:  Creates a process for an agency to obtain judicial review of a decision made by the Office of Information Practices relating to the Sunshine Law or the Uniform Information Practices Act, and clarifies standard of review. Effective January 1, 2013. (CD1) Click here for bill text.
Click here for bill status (includes bill drafts, committee reports, and testimony).  Act 176, signed June 29, 2012.

House Journal comments on SB 2858, S.D. 1, H.D. 2, C.D. 1 by Rep. Gilbert S. C. Keith-Agaran, House Judiciary Chair, made on May 1, 2012, and found at H.R. Journal, 26th Leg., Reg. Sess., at 824-825 (Haw. 2012).

Thank you Mr. Speaker,

I stand in support of this measure which creates a uniform procedure for state or county agencies and boards to seek judicial review of decisions by the State Office of Information Practices (“OIP”) relating to the Sunshine Law (Part I of Hawaii Revised Statutes Chapter 92) or the Uniform Information Practices Act (Hawaii Revised Statutes Chapter 92F) (“UIPA”).

In light of the courts’ recognition of a right to appeal OIP decisions under UIPA, this measure is necessary to provide clarity by creating clear procedures for appeal of OIP decisions. The inclusion of a 30-day period to file appeals and requiring appellants to show that the OIP’s decision was “palpably erroneous” ensures that appeals will not be undertaken lightly and there will be great stability in this area of law while ensuring that citizen requests for disclosure of documents are not ignored by agencies. This bill confirms that in the balance of government transparency, the weight of our law tilts clearly towards the public’s right to disclosure of government records.

OIP administers and resolves disputes under both the UIPA and Sunshine Law. Each law has different provisions for judicial appeals from OIP’s decisions. The UIPA has no provision allowing an agency to judicially challenge an OIP decision, while the Sunshine Law permits “any person” to appeal to the courts. At the time of the Sunshine Law was enacted, OIP did not exist and the “any person” standard was meant to allow an individual to challenge an agency’s actions for an alleged violation of the Sunshine Law. UIPA did not contemplate allowing an agency to challenge OIP’s decisions. However, in 2009, the courts allowed an agency to judicially challenge an OIP decision mandating the release of records pursuant to the UIPA, because that determination was based on an underlying Sunshine Law decision and the “plain” language of the Sunshine Law permitted an agency, as “any person,” to appeal. County of Kauai v. Office of Information Practices, 120 Haw. 34, 200 P.3d 403 (Haw. App. 2009) (summarily affirmed by the Hawaii Supreme Court on June 23, 2009).

OIP asked the legislature to establish a simplified and uniform appeals process for both laws. Some opponents of the bill have argued that the bill relinquishes OIP’s current authority to have the last word in UIPA decisions, while other opponents (agencies and county councilmembers) claim that OIP is being granted too much power for an entity that is not a court. Supporters of the measure, which include OIP, the Governor and many state agencies testified and understood that the bill reasonably balances these competing interests and would provide a clear and uniform avenue of judicial review to ensure that OIP’s decisions are founded on proper legal bases while also discouraging agencies from simply ignoring decisions with which they disagree. Rather than being embroiled in litigation against other agencies, the bill would free OIP to continue to provide training as well as informal dispute resolution, which constitute the bulk of OIP’s work and are important activities that help to ensure open government.

I agree with supporters of the bill. The conference draft allows agencies to judicially challenge OIP’s decisions, but requires agencies to timely appeal within 30 days and does not require OIP or the person who requested the decision to appear in court as parties to the appeal. While the bill now gives agencies the right to judicially challenge OIP’s decisions, it also sets a strong standard of review that would accord a presumption of validity and require the courts’ deference to OIP’s factual and legal determinations concerning the administration and interpretation of the UIPA and Sunshine Law, unless such determinations are “palpably erroneous” and result in a definite and firm conviction that a mistake has been made. See e.g., Right to Know Committee v. City Council, 117 Haw. 1, 175 P.3d 111 (2007); Aio v. Hamada, 66 Haw. 401, 664 P.2d 727 (1983). The bill further clarifies that the de novo standard of review referenced in HRS Sec. 92F-15(b) applies only to judicial appeals brought by the general public, and that agencies’ appeals are instead subject to the higher “palpably erroneous” standard. The bill does not affect the standard to be applied by the courts in reviewing OIP decisions with respect to constitutional issues or other matters beyond OIP’s sphere of expertise regarding the UIPA and Sunshine Law.

As is typical in appeals from administrative decisions, this bill limits the record in an agency appeal to what was presented to OIP when it rendered its decision, thus requiring an agency to present its best case to OIP and not rely upon having a second chance to present new evidence in a judicial appeal. Only in extraordinary circumstances would the circuit court allow discovery and admission of additional evidence during an appeal from an OIP decision.

A key provision is that if an agency fails to timely appeal within 30 days from an OIP decision mandating disclosure of a record under the UIPA, then such agency will not be able to challenge the decision if the citizen requesting the record is forced to bring an action to compel disclosure. This provision thus encourages agencies to take timely action, and it discourages agencies from simply ignoring an OIP decision and indefinitely refusing to disclose a record that OIP has determined should be disclosed under the UIPA.

Finally, this bill does not affect the general public’s existing right to bring appeals or to recover reasonable attorney fees and costs as prevailing parties in actions brought under either the UIPA or the Sunshine Law.

It’s unfortunate that we live in a cynical world. A cynical world, in this case, that believes the worst about the intentions of OIP and this present Administration. This bill provides a framework in the reality that OIP and the public face, not the fantasy world that opponents of this measure seem to believe exists.

Senate Journal comments on SB 2858, S.D. 1, H.D. 2, C.D. 1 by Senator Clayton Hee, Senate Judiciary Chair, made on May 3, 2012, and found at S. Journal, 26th Leg., Reg. Sess., at 663-664 (Haw. 2012). 

Senator Hee rose on a point of personal privilege and said:

“With regard to Senate Bill No. 2858 SD 1 HD 2 CD 1: The bill was voted on and passed on Tuesday. With your permission, I would like to request that my written comments be submitted into the Senate Journal.”

The Chair having so ordered, Senator Hee’s remarks read as follows:

“The purpose of this measure is to create a uniform procedure for state or county agencies and boards (jointly referred to as ‘agencies’) to seek judicial review of decisions by the state Office of Information Practices (‘OIP’) regarding Hawaii’s Uniform Information Practices Act (modified), HRS Chapter 92F (‘UIPA’) or the ‘Sunshine Law,’ Part I of HRS Chapter 92.

“The OIP was created in 1988 to administer the then newly enacted UIPA. In 1998, OIP was given the additional responsibility of administering the Sunshine Law, which had been previously enacted in 1975. As part of its duties, OIP provides a non-judicial alternative to resolving the general public’s disputes with agencies under both laws and is not subject to the contested case procedural requirements of HRS Chapter 91, the Hawaii Administrative Procedures Act.

“While OIP administers and resolves disputes under both the UIPA and Sunshine Law, each law has different provisions for judicial appeals from OIP’s decisions; indeed, the UIPA has no provision allowing an agency to judicially challenge an OIP decision, while the Sunshine Law permits ‘any person’ to appeal to the courts. Notably, at the time of the Sunshine Law’s enactment, OIP did not exist and the ‘any person’ standard was obviously meant to allow an individual to challenge an agency’s actions in alleged violation of the Sunshine Law, and it did not contemplate allowing an agency to challenge OIP’s decisions. OIP has also long maintained that there is no existing right for an agency to appeal under the UIPA, as the lack of such right was an intentional omission designed to prevent agencies from suing agencies, and HRS Sec. 92F-15.5 states that ‘the agency shall make the record available’ when mandated to do so by OIP. In 2009, however, Hawaii’s courts allowed an agency to judicially challenge an OIP decision mandating the release of records pursuant to the UIPA, because that determination was based on an underlying Sunshine Law decision and the ‘plain’ language of the Sunshine Law permitted an agency, as ‘any person,’ to appeal. County of Kauai v. Office of Information Practices, 120 Haw. 34, 200 P.3d 403 (Haw. App. 2009) (summarily affirmed by the Hawaii Supreme Court on June 23, 2009).

“Given the confusion over appellate rights arising from the 2009 court decisions and the need for clarity before finalizing its appeals rules, OIP asked the legislature to establish a simplified and uniform appeals process for both laws. Some opponents of the bill have argued that the bill relinquishes OIP’s current authority to have the last word in UIPA decisions, while other opponents claim that OIP is being granted too much power for an entity that is not a court. Supporters of the measure, which include OIP, the Governor, many state agencies, and the League of Women Voters, contend that the bill reasonably balances these competing interests and provides a clear and uniform avenue of judicial review to ensure that OIP’s decisions are founded on proper legal bases while also discouraging agencies from simply ignoring decisions with which they disagree. Rather than being embroiled in litigation against other agencies, the bill frees OIP to continue to provide training as well as informal dispute resolution, which constitute the bulk of OIP’s work and are important activities that help to ensure open government.

“S.B. No. 2858, S.D. 1, H.D. 2 allows agencies to judicially challenge OIP’s decisions, but requires agencies to timely appeal within 30 days and does not require OIP or the person who requested the decision to appear in court as parties to the appeal. While the bill gives agencies the right to judicially challenge OIP’s decisions, it also sets a strong standard of review that accords a presumption of validity and requires the courts’ deference to OIP’s factual and legal determinations concerning the administration and interpretation of the UIPA and Sunshine Law, unless such determinations are ‘palpably erroneous’ and result in a definite and firm conviction that a mistake has been made. See e.g., Right to Know Committee v. City Council, 117 Haw. 1, 175 P.3d 111 (2007); Aio v. Hamada, 66 Haw. 401, 664 P.2d 727 (1983). The bill further clarifies that the de novo standard of review referenced in HRS Sec. 92F-15(b) applies only to judicial appeals brought by the general public, and that agencies’ appeals are instead subject to the higher “palpably erroneous” standard. The record should note that the bill does not affect the standard to be applied by the courts in reviewing OIP decisions with respect to constitutional issues or other matters beyond OIP’s sphere of expertise regarding the UIPA and Sunshine Law.

“As is typical of appeals from administrative decisions, this bill limits the record on appeal by an agency to what was presented to OIP when it rendered its decision. This requires an agency to present its best case to OIP and not rely upon having a second chance to present new evidence in a judicial appeal. The circuit court would allow discovery and admission of additional evidence during an appeal from an OIP decision only in extraordinary circumstances.

“If an agency fails to timely appeal within 30 days from an OIP decision mandating disclosure of a record under the UIPA, then it will not be able to challenge the decision if an action to compel disclosure is brought. This provision encourages agencies to take timely action. The provision discourages agencies from simply ignoring an OIP decision and indefinitely refusing to disclose a record that OIP has determined should be disclosed under the UIPA.

“Finally, this bill does not affect the general public’s existing right to bring appeals or to recover reasonable attorney fees and costs as prevailing parties in actions brought under either the UIPA or the Sunshine Law.”

OIP’s Justification Sheet for S.B. 2858 as introduced:

JUSTIFICATION SHEET
SB. NO. 2858

DEPARTMENT:
Office of the Lieutenant Governor, Office of Information Practices.

TITLE:
A BILL FOR AN ACT RELATING TO OPEN GOVERNMENT.

PURPOSE:
To create a process for an agency to obtain judicial review of Office of Information Practices (OIP) decisions under a palpably erroneous” standard, provided that OIP or a member of the public affected by the decision shall not be required to participate and that review shall be limited to the record before the Office of Information Practices except in extraordinary circumstances, and to further clarify that de novo review of an OIP opinion applies where a requester appeals to the court after OIP upholds the agency’s denial of access, and that in other actions under the Sunshine Law or Uniform Information Practices Act, OIP opinions are admissible and are precedential unless “palpably erroneous.” To allow time for the adoption of adopt administrative rules relating to the new appeals process, the effective date of the proposal will be January 1, 2013.

MEANS:
Add a new section to part IV of chapter 92F and amend sections 92-12, 92F-l5(b), and 92F-27, Hawaii Revised Statutes.

JUSTIFICATION:
The Uniform Information Practices Act (UIPA) allows record-requesting members of the public to challenge a record dnial through an informal process of review by OIP. If a requester is dissatisfied with this informal resolution process, then the law currently allows a requester to go to court to seek de novo review of a decision by the Office of Information Practices (OIP) upholding a denial of access to records by a government agency.

Until the Hawaii Supreme Court’s decision in County of Kauai v. OIP, 120 Haw. 34, 200 P.3d 403 (2009), OIP understood that the UIPA did not provide the agency with a similar right to challenge an OIP decision mandating access to records. The UIPA’s legislative history indicates that the lack of a process for agency appeals was an intentional omission, intended to prevent lawsuits between agencies. Notwithstanding this legislative intent, Hawaii’s appellate courts in 2009 allowed an agency to sue OIP as a way of challenging its UIPA decision on executive meeting minutes. Despite the lack of an appeal right under the UIPA, the courts found appellate jurisdiction under the Sunshine Law, which OIP also administers and had interpreted in rendering an earlier, separate decision on executive meeting minutes.

Because the courts and agencies obviously believe that OIP opinions should ultimately be reviewable, and are likely to continue to seek ways to accomplish such review, continued litigation over agencies’ appeal rights would be contrary to the statutory intent to avoid “agencies suing agencies.” Thus, the proposed bill seeks to create a uniform procedure applicable to both the UIPA and the Sunshine Law that would strictly define and limit agencies’ right to appeal OIP opinions without requiring OIP’s appearance in the appeal. Extending the process for judicial review applicable under both laws will create further uniformity and clarity as to the weight given to an OIP opinion and the remedies available to an agency or other person dissatisfied with that opinion.

At present, the appellate courts have set two different standards of review for OIP’s opinions under the UIPA and the Sunshine Law respectively. The Hawaii Supreme Court has indicated (in dicta) that an abuse of discretion standard applies to OIP’s determinations on core UIPA issues such as providing guidance to the public and agencies as to when agency records should be opened to the public. ‘Olelo v. OIP, 116 Haw. 337, 346 (2007). The Hawaii Intermediate Court of Appeals has applied the “palpably erroneous” standard for its review of OIP’s Sunshine Law decisions. Right to Know Comm. v. City Council, 117 Haw. 1 , 13 (2008). For the sake of uniformity, OIP seeks to set a single standard of review applicable to both laws. OIP believes that the “palpably erroneous” standard is preferable to the abuse of discretion standard in that it requires deference to OIP’s statutory interpretations of provisions of the Sunshine Law or UIPA, in addition to OIP’s factual determinations or mixed determinations of fact and law, whereas the abuse of discretion standard would require deference only as to factual or mixed factual and legal determinations. The “palpably erroneous” standard will give greater clarity to the agencies and members of the public who seek OIP’s opinion on how Sunshine Law or UIPA provisions apply or are interpreted in particular situations, because the OIP opinions thus obtained will carry greater precedential weight.

The review process proposed by this bill would allow an agency to obtain judicial review of an OIP decision under a palpably erroneous standard by bringing suit against the decision itself, rather than against either OIP or the member of the public who originally requested the opinion. Court review would be limited to the record before OIP, except in extraordinary circumstances. OIP and the person who requested its opinion would be given notice of the suit and would have the right to intervene, but would not be required to participate in the special proceeding.

To avoid confusion as to the effect of the new review process on a record requester’s existing right to go to court on a de novo basis after receiving an unfavorable opinion, the bill would further clarify that de novo review only applies in a requester’s (not an agency’s) appeal to court after an OIP decision upholding the agency’s denial of access, and the de novo standard does not apply to other OIP decisions that may be considered by the court in the course of that appeal. The bill would also align the standards under parts II and III of the UIPA for a record requester’s appeal to court after an OIP decision upholding an agency’s denial of access, and would codify the standard currently recognized by Hawaii’s courts for admissibility and precedential weight given to OIP opinions in Sunshine Law litigation.

Impact on the public: This bill will not force members of the public to go to court to defend an agency’s appeal of an OIP opinion. Members of the public will remain entitled to de novo review when challenging an opinion from OIP upholding an agency’s denial of access to a record.

Impact on the department and other agencies: This bill will give agencies the right to challenge an OIP opinion under either the Sunshine Law or the UIPA, and will provide a uniform process for doing so. Just as a judge is not required to appear on appeal to defend his or her decision, this bill will relieve OIP of the need to go to court to defend its prior opinions. The proposed appeal process will not require either OIP or the requester to participate in the judicial review proceeding. The deferential review standard provided for, together with the general limitation of confining the court’s review to the record before OIP, will allow a court to render its decision essentially on the pleadings.

Impact on the New Day Plan: The proposed clarification of when, and under what standard, judicial review of OIP’s decisions is available will eliminate the public’s and agencies’ confusion regarding this issue and allow administration of the open records and open meeting laws to work more smoothly. This will promote the New Day Plan’s goal to improve government transparency and to rebuild public confidence in government.

GENERAL FUND:
None.

OTHER FUNDS:
None.

PPBS PROGRAM DESIGNATION:
None.

OTHER AFFECTED AGENCIES:
All state and county agencies subject to the UIPA and all state and county boards subject to the Sunshine Law.

EFFECTIVE DATE:
January 1, 2013.