Office of Information Practices

The Office of Information Practices (OIP) administers the Sunshine Law, part I of chapter 92, Hawaii Revised Statutes (HRS), which applies to all Hawaii state and county boards.  Boards subject to the Sunshine Law are generally required to hold open meetings (with certain exceptions) and to allow the public to testify at meetings.  OIP has received several inquiries from boards asking about various aspects of the Sunshine Law’s testimony requirements and how to manage testimony while still providing the public with the ability to attend and participate in meetings.  This newsletter addresses some common questions.

Opportunity to Provide Oral and Written Testimony

• Boards are required to give the public the opportunity to present written and oral testimony on all agenda items, including executive agenda items.
• Boards are not required to allow testimony on matters outside the scope of the meeting agenda, and boards may decline to accept testimony regarding matters not on the agenda.
• How an agenda item is framed will determine the breadth of testimony boards must accept, as well as the board’s own discussion and deliberation of that item. A broadly framed description of an issue could allow the board to discuss the issue broadly, but would also require the board to allow testimony on an equally broad range of aspects of the issue.
• Boards cannot require testifiers to identify themselves. Individuals may testify anonymously.
• Boards cannot require preregistration for oral testimony, although they may request it and hear first from those testifiers who have previously registered.
• Boards may request that written testimony be submitted by a certain date, but cannot set deadlines for receipt of written testimony. However, members of the public who submit written testimony close to or after the start of the meeting run the risk that the members will not receive it in time to consider it.
• For remote meetings, boards must allow remote testifiers to be on camera if they so request.
• Boards are not required to read written testimony out loud to those in attendance.
• Boards cannot limit testimony to the start of a meeting, and must accept testimony before the board’s deliberation and decision-making on an agenda item.
• Boards can set reasonable testimony time limits by rule.

Testimony Submitted at a Meeting is a Public Record

• Testimony submitted to a board becomes a government record subject to Hawaii’s open records law, the Uniform Information Practices Act (Modified), chapter 92F, HRS. The UIPA , which is also administered by OIP, governs public access to Hawaii state and county government agency records.  The UIPA presumes that all government records are public unless an exception applies.
• Board meetings are open to the public, and anyone in attendance will be able to hear oral testimony. As such, there is no basis for boards to withhold public access to written testimony that was read at a public meeting.
• Boards sometimes receive written testimony that is not read aloud by the testifier at a public meeting. These written testimonies are also generally public because they were written for a public forum.
• Individuals who provide written or oral testimony to boards and disclose their own personal information in their own testimony waive any privacy interests they might otherwise have in that information. Boards need not redact such information prior to disclosing public testimony.
• However, when testimony implicates the personal privacy interests of someone other than the testifier, the board should consider the personal privacy interests of the third-party individual in determining whether or not to disclose information contained in written testimony that is about that third party.
• Information about third parties that may be redacted from testimony can include personal information like home address and telephone number, social security number, medical and financial information, and other types of information carrying privacy interests.
• Unfortunately, written testimony containing libel or false information about a third party is received by boards from time to time. Boards cannot prevent individuals from submitting false information, or from taking false information and further disclosing it, but the board itself is not required to further disclose such information in written testimony.
• The UIPA provides immunity from civil or criminal liability for anyone participating in good faith in the disclosure or nondisclosure of a government records.

Disruptive Individuals

• The Sunshine Law allows a board to remove any person who wilfully disrupts a meeting.
• For remote meetings held under section 92-3.7, HRS, boards are allowed to remove or block any person who wilfully disrupts or compromises the conduct of a meeting.
• The Sunshine Law does not allow a board to pre-emptively bar a member of the public from attending a meeting in-person.
• If someone is engaging in threatening or dangerous behavior, it would be appropriate to have security present as a general precaution and to ask for police intervention when necessary. Boards should consult with their attorneys as to whether additional measures may be taken, such as obtaining a restraining order against an individual from the circuit court.

If you have additional questions about testimony, the Sunshine Law, or the UIPA, you may ask OIP’s “attorney of the day” (AOD) by calling (808) 586-1400 or emailing [email protected].  OIP also has extensive training materials on the Sunshine Law and UIPA available at https://oip.hawaii.gov/training/.