SCR 192 Working Group

SCR 192 Working Group to Develop Recommendations for the
Treatment of Deliberative and Pre-decisional Agency Records

Senate Concurrent Resolution 192 (SCR 192) was adopted by both chambers of the Legislature during the 2022 session and it requested that the State Office of Information Practices (OIP) “convene a working group 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[.]”  The working group (WG) was asked to “gather and consider information from interested and affected parties as well as examine the law and practices in Hawaii and other jurisdictions, with the goal of developing recommendations to address government’s need for and the public‘s concern about deliberative and pre-decisional agency processes and records in decision-making[.]”  The WG is not a “board” subject to the Sunshine Law.

Pursuant to SCR 192, OIP convened the WG 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 Hawaii
Duane Pang, Deputy Corporation Counsel, City and County of Honolulu

Since being formed in early July 2022, the WG has worked diligently and collaboratively to develop recommendations for a new UIPA (HRS Chapter 92F) statutory exception and other recommendations for deliberative and pre-decisional agency records to reasonably balance the public’s interest in disclosure and agencies’ ability to fully consider and make sound and informed decisions.   So far, the WG has met four times as a large group, with multiple smaller group meetings as well.

After the first meeting on July 15, 2022, the WG drafted a Statement of Common Purpose.  A member from the group representing public interest groups was paired with a member from the group representing government agencies subject to the UIPA, and each of the three pairs was charged with producing an original proposal.  In addition, members were provided research conducted by Mr. Black regarding legislative solutions in other jurisdictions, and prior OIP opinions and examples regarding the deliberative process privilege in Hawaii.

At its subsequent meetings on August 9, August 25, and September 12, 2022, as well as in smaller group meetings, members discussed their concerns and experiences dealing with the UIPA, and the advantages, disadvantages, and merits of the proposals presented by the members.

At the meeting on September 12, time was of the essence in developing a proposal for public comments in October when a public meeting was scheduled.  While there was insufficient time on September 12 to reach resolution on two other matters (reducing times for dispute resolution and incentivizing after-action reviews), members agreed to solicit public comment on draft legislation providing the following statutory amendments to HRS Chapter 92F:  (1) revising the definition of “government records” in HRS Section 92F-3 to expressly exclude uncirculated drafts and notes consistent with the language from footnote 15 in the Hawai`i Supreme Court’s 2018 decision in Peer News LLC, dba Civil Beat v. City and County of Honolulu, and (2) adding to HRS Section 92F-13 a new UIPA statutory exception with limited protection for deliberative process materials.

Here is the Agenda for the online meeting that has been scheduled for noon on October 4, 2022, which will afford all interested persons an opportunity to submit data, views, or arguments, orally or in writing, regarding the draft legislation.

We emphasize that this draft legislation is not the final recommendation of the WG, nor has it been approved by the Legislature.  Based on public input, the group will continue to discuss and determine whether additional revisions to the proposed statutory amendment should be made.  If members can reach agreement regarding a final proposal to submit to the Legislature, the WG’s proposal, findings and recommendations will be submitted to the Legislature in mid-December 2022 pursuant to SCR 192.  If legislation is introduced in the 2023 session, the public will have further opportunities to comment on proposals.

A copy of SCR 192, draft legislation, October 4 meeting notice, minutes of WG meetings and various documents and proposals considered by the WG are posted on this webpage and will continue to be updated as the WG’s work progresses.

The UIPA statute, legislative history, opinions by OIP and courts, training materials, and other information can be found elsewhere on this website.  For further information, please feel free to contact OIP at [email protected] or call (808) 586-1400.

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Materials distributed to Working Group:
SCR 192 SD1
Other States’ Legislative Solutions
OIP’s Deliberative Process Privilege Opinions
Examples of Predecisional and Deliberative Process Records

First Meeting 7.15.22 Minutes:
7.15.22 Working Group Minutes

Second Meeting 8.9.22 Minutes and Proposals:
8.9.22 Working Group Minutes
Statement of Common Purpose
Meller-Okinaga (MO) proposal for 8.9.22 meeting
Fernandes-Black (FB) proposal for 8.9.22 meeting
Pang proposal 8.9.22 meeting

Third Meeting 8.26.22 Minutes and Proposals:
8.26.22 Working Group Minutes
Black proposal for 8.26.22 meeting
Meller legislative proposal for 8.26.22 meeting
Working Group proposal agreed upon at 8.26.22 meeting

Fourth Meeting 9.12.22 Minutes and Proposals:
09.12.22 Working Group Minutes
Working Group proposal agreed upon at 8.26.22 meeting
Fernandes-Black proposed revision
Collins proposal for 9.12.22
Okinaga Notes of August 30 meeting
Draft legislation for public testimony

Fifth Meeting 10.4.22 Public Testimony:
10.4.22 Agenda
Draft legislation for public testimony
Written Testimony
SCR 192 Working Group Public Meeting Video