Office of Information Practices

 

The state Office of Information Practices (OIP) is providing these comments regarding the only proposed amendment concerning public records, which will be on this year’s general election ballot as the City and County of Honolulu’s proposed Charter Amendment #20 and states in relevant part:

        Should the Charter be amended for housekeeping amendments (i) to conform to current functions and operation, (ii) to conform to legal requirements, (iii) to correct an inadvertent omission, and (iv) for clarity?

a.    Require the books and records of all city departments be open to public                inspection[.]

Although the proposed Charter Amendment #20 consists of four additional subsections, OIP’s comments are limited to those regarding subsection a, which would make the following changes to Honolulu’s Charter (with new language underlined and deleted words in brackets in red):

SECTION 1. Section 13-105, Revised Charter of the City and County of Honolulu 1973 (2000 ed.), as amended, is amended to read as follows:

“Section 13-105. Records Open to the Public— [All] Except as otherwise provided by law, all books and records of the city shall be open to the inspection of any [citizen] person at any time during business hours. Certified copies or extracts from such books and records shall be given by the officer having custody of the same to any person demanding the same and paying or tendering a reasonable fee to be fixed by the council for such copies or extracts [, but the records of the police department or of the prosecuting attorney shall not be subject to such inspection unless permission is given by the chief of police or the prosecuting attorney, except in the case of traffic accidents where such records, including all statements taken, shall be available for inspection by the parties directly concerned in such accident, or their duly licensed attorneys acting under written authority signed by either party. Any person who may sue because of death resulting from any such accident shall be deemed a party directly concerned].”

According to the Charter Commission’s description, the existing “Charter excludes records of the Honolulu Police Department and the Department of the Prosecuting Attorney from public inspection, although state law requires open records.”  If the proposal passes, the Commission states that it would “permit the public inspection of city books and records, including those of the Honolulu Police Department and the Department of the Prosecuting Attorney and be consistent with state law.”

OIP believes that the proposed amendment removes questionable language and conforms the Charter to the state’s Uniform Information Practices Act (UIPA), Chapter 92F, Hawaii Revised Statutes, which requires public access to government records unless they are protected from disclosure.  While HRS section 92F-13(4) recognizes an exception from disclosure for information protected by state or federal law, OIP has consistently ruled that a charter provision is not a “state law” subject to this exception.  E.g., OIP Opinion Letter No. 95-14.  Thus, the existing Charter provision’s apparent protection for the records of the Honolulu Police Department and the Department of the Prosecuting Attorney does not by itself provide a basis for withholding records under the UIPA.  If the amendment passes, however, people should not expect or fear that police and the Prosecutor’s records will become completely open to the public, as other UIPA exceptions to disclosure will still apply where applicable, such as when significant privacy interests are at stake, a confidential informant’s identity must be protected, or a criminal investigation is ongoing.  In short, the existing Charter provision or the proposed amendment do not change the people’s right to access records under the UIPA.

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