The State Office of Information Practices (OIP) is pleased to announce that the Working Group convened pursuant to Senate Concurrent Resolution 192 (SCR 192) has successfully completed its work and has prepared its “Report to the 2023 Legislature of the SCR 192 Working Group,” which has been delivered to the Legislature and posted on the newly updated SCR 192 Working Group webpage at oip.hawaii.gov.
The Working Group (WG) was convened and staffed by OIP with the following members:
Judge (retired) Karl Sakamoto, Facilitator
Brian Black, Executive Director, Civil Beat Law Center
Lance Collins, Law Office of Lance D. Collins, representing Common Cause
Kalikoʻonālani Fernandes, Deputy Solicitor General, Department of the Attorney General
Douglas Meller, representing League of Women Voters
Carrie Okinaga, General Counsel, University of Hawaiʻi
Duane Pang, Deputy Corporation Counsel, City and County of Honolulu
SCR 192 asked the WG “to develop recommendations for a new UIPA statutory exception and other recommendations for deliberative and pre-decisional agency records to reasonably balance the public’s interest in disclosure and the agency’s ability to fully consider and make sound and informed decisions[.]” Accordingly, the WG, with one dissent, today submitted to the Legislature its report and proposed legislation that would create a new deliberative process exception to Chapter 92F, Hawaiʻi’s Uniform Information Practices Act (Modified) (UIPA).
Long-time readers of What’s New articles know that for nearly three decades, OIP had recognized a “deliberative process privilege” allowing agencies, with various constraints, to withhold deliberative and pre-decisional records under the frustration exception to UIPA’s mandatory disclosure requirements. The Hawaiʻi Supreme Court’s 2018 majority decision overruled OIP’s decisions, which eliminated use of the privilege. Peer News LLC, dba Civil Beat v. City and County of Honolulu, 143 Haw. 472 (2018). See OIP’s Opinions page for the Court’s majority and dissenting opinions and OIP’s analysis.
After numerous WG meetings, including a public hearing, all but one member reached consensus on a recommendation to the Legislature to create a new statutory exception to disclosure under the UIPA, which reasonably balances the public’s interest in disclosure and the agency’s ability to fully consider and make sound and informed decisions.
OIP sincerely thanks the WG members for their hard work, dedication and professionalism in reaching this reasonable compromise on such a complex issue involving many different perspectives and various legal and factual scenarios. It was an honor to work with such a talented and dedicated group who worked so diligently and in such a collaborative manner to improve the government decision-making process while keeping government open and accountable to the people.