THE FACTS ABOUT THE DELIBERATIVE PROCESS PRIVILEGEPosted on Apr 24, 2023 in Featured, What's New
The leak of the U.S. Supreme Court’s draft opinion regarding abortion in the Dobbs case caused major public controversy and political battles even before the final decision was actually rendered. Regardless of your view on abortion, try imagining yourself as a regular government worker, and not a U.S. Supreme Court Justice appointed for life: Do you think you would be able to withstand the same kind of heated political pressure, media criticism, public insults, or threats to your family that the Court endured if a mere draft of your work was prematurely exposed? Would you still feel comfortable giving your honest opinion about a work matter if you thought it could end up on the front page subjecting you to fierce criticism before the final decision is even made? If not, then please consider the following facts.
FACT #1: The federal Freedom of Information Act (FOIA) and federal court cases have long recognized the need for a government agency’s internal discussions leading up to a decision to be free from undue pressure and public ridicule, thus enabling merit-based decision-making. FOIA and the courts recognize that the candid and free exchange of ideas and opinions within and among agencies is needed to reach fully considered and merit-based decisions. They also recognize the need to protect against premature disclosure of proposed policies before they are finally formulated to avoid misleading the public and confusing the issues by dissemination of documents suggesting rationales or courses of action that are not in fact the policy ultimately adopted or the actual reasons the agency adopted it. That is why FOIA and the courts continue to recognize the “deliberative process privilege” (DPP), which protects from disclosure the drafts of records revealing tentative views, edits, and personal opinions that are predecisional and deliberative. Rather than trying to “hide” records, the DPP allows government agencies to fully consider a matter and reach a merit-based decision, for which the records of the final decision are subject to public disclosure. Under FOIA, even predecisional and deliberative materials are now subject to disclosure 25 years after the final decision is made.
FACT #2: OIP followed FOIA and the UIPA’s legislative intent for nearly 30 years in recognizing the DPP, with limitations to prevent its abuse. Since its first year of existence in 1989, the Office of Information Practices (OIP) also recognized the DPP under the Uniform Information Practices Act (UIPA), chapter 92F, HRS, Hawaii’s open record law, as a form of the UIPA’s exception for records whose disclosure would frustrate a legitimate government function. While extensively discussing the DPP and its limitations in 29 cases before December 2018, OIP allowed the records to be withheld in only 9 of those cases and actually required the records to be disclosed in whole or in part in 20 cases. See OIP’s Summary of its formal opinions regarding the DPP posted on the SCR 192 Working Group page at oip.hawaii.gov.
But in December 2018, the Hawaii Supreme Court overturned OIP’s prior decisions recognizing the DPP. This was an appeal brought by the Civil Beat Law Center on behalf of Peer News doing business as Civil Beat, in which OIP was not a party and had not previously been asked to render a decision in the underlying dispute with the City and County of Honolulu. OIP has written in detail about the Court’s narrowly decided 3-2 decision in this case.
FACT #3: During the 2022 session, the Legislature asked OIP to convene a working group to recommend a new DPP statutory exception. There was and continues to be disagreement among legislators and various interested groups about whether the Peer News case was properly decided and whether the UIPA should be amended to restore some form of DPP. Seeking to resolve the issue, both the Senate and House unanimously passed Senate Concurrent Resolution (SCR) 192 during the 2022 session, asking OIP to “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[.]”
FACT #4: Pursuant to SCR 192, a working group, including the Civil Beat Law Center, recommended legislative proposals for a new deliberative process exception (DPE) this session.
Pursuant to SCR 192, OIP convened a working group 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
After working diligently during the 2022 interim and holding a public hearing, the working group, except for Collins, agreed upon draft legislation that was introduced during the 2023 session as SB 720 and HB 1158, Relating to Government Records. The working group’s report, minutes, and other work is posted at oip.hawaii.gov on the SCR 192 Working Group page. Although the Senate Government Operations Committee heard and passed out SB 720, SD 1, the Senate and House Judiciary committee chairs each unilaterally decided not to hear the bills.
FACT #5: The SCR 192 proposal for a new DPE included many protections for the public interest in disclosure. Based on a footnote from the Peer News decision, the SCR 192 proposal amends the definition of a government record in HRS 92F-3 to exclude “truly preliminary records, such as personal notes and rough drafts of memorandum, that have not been circulated.” It amends HRS section 92F-13 to add subsection (6), which creates a new deliberative process exception (DPE) that would allow agencies to withhold “[i]nter-agency or intra-agency deliberative and pre-decisional government records, other than purely factual information that is readily segregable, concerning an agency decision about a government action up until the final decision to which the government records relate has been made or until deliberation of the matter has been abandoned[.]” Thus, purely factual information that can be easily separated from draft documents must be disclosed to the public before the final decision. Once a final decision is made or deliberation is abandoned, then all deliberative and pre-decisional government records are subject to disclosure.
The SCR 192 working group recognized that major decisions and changes often take much longer than three years to be concluded, but that the public is entitled to know that work is ongoing and the new exception is not being used as a pretext to block access to records. Therefore, while not forcing government officials to make a decision within three years, the proposal includes a rebuttable presumption that decision-making has been abandoned if three or more years have gone by since an earlier request for the same record(s) was denied on the basis that the decision-making process was still ongoing. Three years after a record request is made, the agency has the burden of showing that decision-making is still ongoing, if they want to rebut the presumption that those same records must be disclosed.
The SCR 192 working group further recognized a distinction between collaborative government decisions that involve public participation (e.g., board meetings and public hearings) and government decisions without public participation (e.g., decisions by a single executive or department head). In a situation where public participation is required by law or is being solicited—such as during public meetings of boards subject to the Sunshine Law—the timely disclosure of relevant government records is necessary for meaningful public participation. For timely disclosure to occur, the Sunshine Law, Part I of Chapter 92, HRS, and UIPA must continue to require disclosure of any deliberative or pre-decisional government record distributed or discussed at any government meeting or hearing that the public has the right to attend. Therefore, the proposal does this by specifically providing that the new exception shall not apply to a “board packet” of materials being reviewed by a board prior to a Sunshine Law meeting.
Thus, the SCR 192 working group fulfilled its legislative charge to propose a new DPE that reasonably balances the public’s interest in disclosure and the agency’s ability to fully consider and make sound and informed decisions.
FACT #6: The SCR 192 proposal was included in the SD 2 amendments to HB 719 proposed by the Attorney General and the Civil Beat Law Center. In negotiations over amendments to HB 719 Relating to Public Records, the Attorney General and Brian Black of Civil Beat Law Center agreed to include the SCR 192 working group’s proposal from SB 720 as part of the other amendments to the UIPA, which they recommended to the Senate as HB 719, HD1, SD 2. Their proposal, which the Senate adopted, is currently under consideration as the Senate’s position in HB 719, HD 1, SD 2. The matter is now before the Legislature to ultimately decide.
For the balanced and objective facts about OIP, the UIPA or Sunshine Law, or open government legislative proposals, check OIP’s website at oip.hawaii.gov, sign up for OIP’s What’s New emailed articles at [email protected], or call (808) 586-1400 to speak to the Attorney of the Day.