Office of Information Practices

April 26, 2012

The state Office of Information Practices (OIP) is pleased to announce that legislation providing a simple, timely, and uniform appeals process under both the Uniform Information Practices Act (UIPA) and the Sunshine Law was passed out of the conference committee today and will go to the full Legislature for final reading. S.B. 2858, S.D. 1, H.D. 2, C.D. 1 will (1) eliminate the need for continued litigation over jurisdictional issues concerning both laws administered by OIP, (2) give the courts clear direction to uphold OIP’s decisions unless they are palpably erroneous, (3) allow agencies to judicially appeal without requiring OIP or the public to be embroiled as unwilling parties in such litigation, (4) prevent agencies from indefinitely ignoring OIP’s decision mandating disclosure of records as they will be under a 30-day deadline to file an appeal or be bound by a decision, and (5) help OIP resolve disputes and assist the public in obtaining government records in a free, informal, and timely manner.

Opponents of the bill have argued that the bill weakens OIP while other opponents have argued that the bill gives OIP too much power. Supporters and those who have actually read and understand the bill and the history behind it know that the bill reasonably balances these two diametrically opposed positions by recognizing agencies’ limited right to appeal while instructing the courts to defer to OIP’s decisions under both laws. The passage of this bill will also clear the way for OIP to finalize its appeals rules, which have been placed in doubt since the decision in County of Kauai v. OIP, 120 Haw. 34, 200 P.3d 403 (Haw. App. 2009) (summarily affirmed by the Hawaii Supreme Court on June 23, 2009).

In the Kauai case, which took four years to resolve, the County directly sued OIP and appealed from an OIP decision mandating the disclosure of executive session minutes. OIP vigorously argued that its disclosure decision was made under the UIPA, not the Sunshine Law, and that the County lacked standing to appeal because the UIPA did not give government agencies a right to appeal an OIP determination mandating disclosure of government records. Kauai, 120 Haw. at 38-39, 41, 43, 200 P.3d at 407-08, 410-11. Nevertheless, the courts rejected OIP’s jurisdictional arguments and reasoned that both laws applied in that case and that the “plain” language of the Sunshine Law allowed “’any person,’ including County” to sue. Id. at 43-44, 200 P.3d at 412-13.

The Kauai decision arguably made the UIPA’s deliberate omission of an agency appeal process largely irrelevant. Many, if not most, UIPA decisions involve OIP’s analysis of the Sunshine Law and other statutes that affect access to specific information or records, such as the confidentiality provisions regarding taxes, competitive bids, utility bills, traffic accident reports, and countless other laws. Under the Kauai decision, the appellate procedures found in other statutes would arguably supercede the UIPA so that agencies would be able to find jurisdiction in other laws to appeal OIP’s decisions mandating disclosure of records under the UIPA. Rather than continue to litigate this and other jurisdictional issues in the courts, OIP has sought legislative clarification of agencies’ appeal rights.

One opponent of SB 2858 claims that the solution is to have the Legislature make clear that the UIPA controls and provides no right for agencies to appeal an OIP decision mandating disclosure of records, as the Legislature clearly intended when it first enacted the UIPA 24 years ago. Such a proposal, however, would almost certainly result today in greater restrictions on OIP’s authority and effectiveness. If OIP, rather than the courts, is to be the final arbiter of all UIPA decisions, regardless of any other statutory or constitutional issues involved, then the Legislature would probably feel obligated to impose additional restrictions on OIP, such as those found in judicial or contested case proceedings that entail costly and time-consuming hearings and procedures, which virtually require attorneys’ involvement and would increase taxpayer-funded litigation between agencies. These new restrictions would destroy OIP’s current effectiveness as a free and informal alternative to court actions, would substantially slow OIP’s resolution of cases, and would increase litigation and costs to the public while delaying access to records.

A realistic and reasonable solution has been provided by SB 2858. OIP can continue to be an effective, free, and informal alternative to the courts because SB 2858 allows agencies to challenge OIP’s decisions (and not OIP itself) in expedited judicial appeals while setting a high standard of review and requiring the courts to defer to OIP’s expertise. Agencies will no longer be able to indefinitely ignore OIP decisions and withhold records mandated to be disclosed because they will have to appeal within 30 days if they wish to challenge such decisions. If they do appeal, agencies will have a heavy burden to overcome and prove OIP’s decision to be palpably erroneous. OIP and requesters will no longer have to waste limited resources to hire attorneys to represent them as parties in lengthy and costly appeals. By providing a clear, simple, and uniform process for agency appeals under both the UIPA and Sunshine Law, SB 2858 stops the jurisdictional battles between agencies, enables OIP to move forward on finalizing its appeal rules, and allows OIP to continue to freely, informally, and timely assist the public in obtaining access to government records.

For OIP’s previous discussions of this bill and the facts about open government issues, look here on the What’s New page.