Office of Information Practices

May 1, 2012

The state Office of Information Practices (OIP) is celebrating the final passage of two key open government bills and wishes to thank all of those who worked hard on this important legislation, particularly the Judiciary chairs, Senator Clayton Hee and Representative Gilbert Keith-Agaran, and their staffs. Rep. Keith-Agaran’s insightful comments that he submitted for inclusion in the House of Representatives’ Journal during today’s final reading of the appeals bill are posted on OIP’s website on the 2012 Legislation page.

The first bill creates a simple, timely, and uniform process for appeals by agencies of OIP decisions relating to the Uniform Information Practices Act (UIPA) and the Sunshine Law. Under S.B. 2858, S.D. 1, H.D. 2, C.D. 1, agencies have 30 days to exercise this new right to expedited judicial review and will have to overcome a high standard of review that would require them to prove that OIP’s challenged decisions are palpably erroneous on the facts and law before they could be overturned. Neither OIP nor the requester are required parties to an appeal, so they will not become unwillingly embroiled in litigation and an agency cannot win its appeal simply by default if OIP or the requester choose not to litigate.

An agency must also put its best case before OIP and not wait until it is in court to present a serious argument, because a subsequent judicial appeal will be limited to the record before OIP, unless there are extraordinary circumstances warranting the court’s consideration of new information on appeal. With respect to a UIPA decision mandating disclosure of government records, an agency that fails to timely appeal will be unable to challenge OIP’s decision if the requester files a subsequent enforcement action and, under existing law, the agency will be liable for reasonable attorney fees and costs if the enforcer prevails. Thus, while the bill gives agencies a new right to appeal, it also gives OIP’s decisions more clout and discourages agencies from frivolously appealing or simply ignoring OIP’s rulings.

Media and “good government” groups had rallied around a former journalism professor’s opposition to the bill on the basis that when the UIPA was written 24 years ago, it clearly was not intended to allow agencies to appeal from OIP’s decisions mandating the disclosure of records. OIP agrees that the UIPA was not originally intended to allow agency appeals, and indeed, OIP vigorously advocated that very same argument, which the courts rejected in a 2009 Intermediate Court of Appeals’ decision that the Hawaii Supreme Court affirmed. Even if the Legislature acted, as opponents urged, to overturn the courts’ ruling and made it even clearer that agency appeals were not allowed, these opponents fail to realistically acknowledge that, at the same time, the Legislature undoubtedly would have imposed severe limitations to counterbalance the absolute power that opponents sought for OIP and would have instead required OIP to follow something similar to judicial or contested case procedures.

Given the State’s shaky fiscal condition, it is also questionable whether such additional procedural restrictions would have been accompanied by the substantial and ongoing increase in government funding that OIP would have needed for more staff and resources. Moreover, by turning OIP into a nonreviewable body that would nevertheless be subject to litigious, time-consuming, and complicated contested case procedures, OIP could no longer be a free, expeditious, and simple alternative to the courts that also provides training and advice in response to over 800 annual inquiries from agencies and the public.Fortunately, the Legislature instead decided upon a balanced and reasonable solution that allows OIP to continue its work to informally, impartially, and expeditiously resolve disputes between the public and agencies, without the need for agencies or the public to retain expensive legal representation in lengthy and complex quasi-judicial proceedings.

The second bill passed this year is S.B. 2859, S.D. 1, H.D. 2, which creates two new permitted interactions under the Sunshine Law. One new permitted interaction would allow board members to receive testimony and ask questions at public meetings that must be cancelled due to a lack of quorum, provided that they make no decisions and thereafter report to the full board. The second new permitted interaction would allow less than a quorum of board members to attend and discuss board business at seminars, conferences, informational meetings, legislative hearings, and other meetings, again provided that they make no decisions and thereafter report to the full board. Both of these new provisions will help to promote greater public participation in government, better communication between the public and board members, and a fuller understanding of the issues and various perspectives by board members.

Still pending is a third key piece of open government legislation that would, among other things, provide for electronic notification of meeting notices and require the electronic posting of meeting minutes and board materials within 30 days of a public meeting. H.B. 2404, H.D. 1, S.D. 2, C.D. 1 is scheduled for final reading on May 3, 2012.

For the latest facts and news about open government, 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.