OHA APPEALS OIP DECISION OF ITS SUNSHINE LAW VIOLATION

Posted on Dec 10, 2014 in Featured, What's New

The first appeal from a decision by the state Office of Information Practices (OIP), using the appeal process added to the law in 2012, was filed by the Office of Hawaiian Affairs, Board of Trustees (OHA).  The complaint to initiate a special proceeding was filed in the Circuit Court of the First Circuit on December 5, 2014, and contends that OIP was “palpably erroneous” in concluding that OHA’s Board of Trustees violated the state’s Sunshine Law in two ways.

OIP’s decision, Opinion Letter No. F15-02, was previously described in a November 26, 2014 “What’s New” article and can be accessed in summary and full text formats through the Laws/Rules/Opinions page at oip.hawaii.gov.  The opinion arose from complaints brought by six persons asking whether: (1) OHA’s Board of Trustees complied with the Sunshine Law when its members jointly signed a letter dated May 9, 2014, rescinding a letter dated May 5, 2014, that had previously been sent to United States Secretary of State John F. Kerry by OHA’s Chief Executive Officer, Dr. Kamana’opono Crabbe, and (2) the OHA Board could refuse to accept oral testimony regarding an agenda item discussed in executive session during its meeting of May 19, 2014.

Although OIP noted that OHA could have properly met to discuss the letters if the emergency and interactive technology meeting provisions of the Sunshine Law had been properly invoked, OHA contended that no meeting was necessary or was conducted, and OIP concluded that OHA violated the Sunshine Law by not discussing the two letters in a properly noticed public meeting.  Additionally, OIP concluded that the OHA Board violated the Sunshine Law on a separate occasion by denying the public’s right to present oral testimony on an agenda item scheduled for an executive session closed to the public.

OHA’s appeal of OIP’s decision is governed by the provisions of HRS Section 92F-43, which took effect on January 1, 2013, after the passage of Act 176, SLH 2012.  The law limits judicial review to the record that was before OIP and requires the court to uphold OIP’s decision unless it was “palpably erroneous.”  As the legislative history to Act 176 makes clear, the law accords a presumption of validity to OIP’s decisions and requires the court’s deference to OIP’s factual and legal determinations under the UIPA and Sunshine Law, unless such determinations are “palpably erroneous” and result in a definite and firm conviction that a mistake has been made.  The law, legislative history, and a law review article explaining the history and process for appeals from OIP’s decisions can be found on OIP’s website at oip.hawaii.gov.  Please note that OIP’s administrative rules at HAR Chapter 2-73 and the Appeals Guide on OIP’s website relate primarily to appeals made to OIP, and not appeals from OIP’s decisions, so they are not applicable to OHA’s appeal of OIP’s decision.

On a final, unrelated topic, OIP is in the process of converting its What’s New e-mail list from Lotus Notes to Outlook and is finding that many e-mail addresses are no longer valid.  If anyone did not receive this e-mail and would like to be on OIP’s list, please inform the staff at oip@hawaii.gov.  Archived articles can be found on the What’s New page at oip.hawaii.gov.

For the latest open government news, check for archived copies of What’s New articles that are posted here, or e-mailed upon request. To be added to OIP’s e-mail list, please e-mail oip@hawaii.gov.   Also, if you like to receive What’s New articles or attachments in a Word format, please contact OIP at (808) 586-1400 or oip@hawaii.gov.