Posted on Aug 6, 2021 in Featured, What's New

Yesterday, Governor David Ige issued his Emergency Proclamation Related to the COVID-19 Response (Proclamation) which supersedes the prior proclamations issued in response to the COVID-19 pandemic.  The Proclamation contains no suspension of Chapter 92F, HRS, Hawaii’s Uniform Information Practices Act (UIPA) relating to open records.  Consequently, the UIPA and all its deadlines are back in full effect.  As OIP has advised agencies all along, it will be disinclined to grant any further extensions in pending UIPA and Sunshine Law appeals filed with OIP, so agencies are urged to immediately file any responses previously requested by OIP.

Based on OIP’s review of FY 2020 year-end UIPA Record Request Log reports submitted by State and county agencies, most agencies appear to have been timely responding to record requests made to their own agencies.  For FY 2021 that recently ended, agencies are reminded that their year-end UIPA Record Request Log reports should have been submitted through their UIPA Coordinator to OIP by July 31, 2021.

The Proclamation continues to suspend Hawaii’s open meetings law, the Sunshine Law, at part I of Chapter 92, HRS, “only to the extent necessary to minimize the potential spread of COVID-19 and its variants.”  It allows boards to continue conducting remote meetings using interactive conference technology (ICT), while retaining the option to conduct traditional in-person meetings at a single meeting site or at multiple meeting sites connected by ICT.  “Meetings shall be conducted according to the requirements established in Exhibit C [of the Proclamation], which incorporates the intent of the Legislature in Act 220 (2021).”

In place of the remote meeting guidelines set out in prior emergency proclamations, Exhibit C of the Proclamation contains a simplified version of most of the provisions for remote meetings set out in Act 220, SLH 2021, which OIP has previously summarized on its Legislation Page.  Because these Sunshine Law amendments will not take effect until January 1, 2022, the Proclamation now creates an option to hold remote meetings without Act 220’s new requirement to conduct at least one in-person meeting, and with most procedures presented as guidelines rather than mandates.  Therefore, under the Proclamation, boards can continue to hold fully remote meetings, with board members and staff as well as members of the public participating via ICT (e.g., Zoom, Webex) from nonpublic locations.  This Proclamation is expected to continue through October 4, 2021.

The two firm requirements for remote meetings under the Proclamation are (1) that boards file notice generally as required by the Sunshine Law and include how the public can remotely view and testify at the remote meeting; and (2) that boards recess for up to thirty minutes to restore communication if the remote meeting connection goes down.  The additional recommended guidelines include allowing interaction among board members and the public; having board members visible and audible during the meeting; treating board members participating remotely as present at the meeting; announcing the names of participating members; conducting votes by roll call unless unanimous; and recording remote meetings when practicable.  The Proclamation also provides that a good faith error resulting in the public being unable to view the meeting or testify cannot be used to invalidate a board action.

Because the remote meeting guidelines in the Proclamation have essentially given effect to a simplified version of the new law – without the requirement for an in-person meeting site available to the public – OIP recommends that boards use this interim period before January as an opportunity to practice following Act 220’s remote meeting procedures, while any errors in execution will be a departure from the Proclamation’s guidelines rather than a potential Sunshine Law violation.  For now, therefore, boards seeking guidance on the Proclamation’s requirements in Exhibit C are urged to review OIP’s summary of Act 220.

To supplement the already posted summary of Act 220, OIP will continue working to revise its training materials by this fall to train boards on Act 220’s new requirements before the amendments go into effect next year.  Due to the loss of two of our five staff attorneys, OIP is unfortunately unable to provide individualized training on Act 220 but will continue to develop new training materials and will strive to answer specific questions about the new law through our Attorney of the Day service.

Any new training materials will be announced by OIP through What’s New articles, which you can find archived on OIP’s website or emailed to you upon request.  To be added to OIP’s email list, please email [email protected].  Also, if you would like to receive What’s New articles or attachments in a different format, please contact OIP at (808) 586-1400 or [email protected].