Office of Information Practices

In response to a several inquiries earlier this week, the State Office of Information Practices (OIP) has urged the Legislature to adopt an amendment to the Sunshine Law that would allow boards to take social distancing precautions during the COVID-19 emergency.

This week, OIP has received many inquiries from boards regarding precautions they can take during the current pandemic.  Therefore, OIP testified today before the House Judiciary Committee to support S.B. 2038, S.D. 1, Relating to Board Members, and requested an emergency amendment. OIP supports the bill’s current form, which would allow board members to jointly attend ceremonial events, such as the State of the State address.  In light of the COVID-19 crisis, however, OIP further requested the attached amendment (see below) to the bill that would add a new section temporarily allowing Sunshine Law boards to provide public access to a meeting via interactive conference technology without admitting the public to the room where the board is physically meeting.  The board must provide the public with both remote access to the meeting via livestreaming or similar means, and a linked physical location available for public participation and testimony.  For example, a board could be physically present and livestreaming in one room, while some members of the public participate and testify from another room via a TV monitor, camera, and microphone, and still other members of the public participate and testify remotely from their homes via the livestream access link provided in the board’s notice.  The use of this new Sunshine Law proposal would be triggered when the Governor declares a state of emergency for a contagious illness (as he already has done) and it will sunset on June 30, 2021.  Next session, the Legislature would be able to review this provision to assess how it worked and whether it should be extended.

This proposal is intended to allow boards to continue their important work without providing a vector to spread illness during the current COVID-19 emergency. OIP hopes it will help to allay fears and reduce the risk of infection between board members, employees, and the general public and to retain volunteer board members so that government work can continue to function during this crisis.  Although the primary intent of this proposal is to address the COVID-19 emergency, it will also effectively serve as a pilot project for allowing and encouraging the boards’ use of interactive conference technology, and OIP hopes that an eventual result of this temporary amendment will be greater access to public meetings, especially for neighbor island and remote communities.

A House Draft 1 of S.B.  2038, S.D. 1, which is expected to incorporate OIP’s proposal, will be scheduled for hearing on Monday, March 16 at 2 p.m. by the House Judiciary Committee in Room 325.  OIP encourages you to review and testify on the proposal.  The bill’s progress can be tracked on the legislative website at capitol.hawaii.gov.

Even without the proposed amendment, boards can take other social distancing measures under the Sunshine Law’s interactive conference technology provisions in HRS § 92-3.5.  Although this section usually requires that board members participate in a meeting only from a noticed location that is open to the public, it does make an exception for a board member with a “disability that limits or impairs the member’s ability to physically attend the meeting.”  HRS § 92-3.5(d).  In such a case, the member with a disability can attend the meeting from a private and non-noticed location, so long as he or she is connected by “both visual and audio means” and generally identifies the private location (e.g., as a home or hospital) and anyone else who is present in the room.  Having an illness, whether contagious or noncontagious, would likely qualify as a disability impairing a board member’s ability to attend a public meeting.

It is less clear, however, whether a board member would qualify as having a disability when the self-quarantine is due to exposure to someone else with a contagious illness.  If a member is not currently ill but is self-quarantining based on a reasonable belief that the member may have a serious illness and not be showing symptoms yet, OIP believes there would be a good faith argument that the member’s condition was a disability impairing the member’s ability to attend the meeting.  This is a novel situation, however, and in the event of a challenge, it is also possible that a court or OIP might ultimately determine from the facts in a case that a potential illness not currently causing any symptoms was not actually a disability for the purpose of the interactive conference technology provision.

For the latest open government news, please check for What’s New articles that are 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].

Proposed amendment to the bill:

OIP’s proposed amendment to SB 2038, S.D. 1 for emergency board meetings held by interactive conference technology (3/11/2020) – replace the current bill section 3 with the following two sections.

SECTION 3.             Notwithstanding section 92-3.5 or any other law to the contrary, when a state of emergency declared by the governor is in effect for a contagious illness, a board holding a meeting by interactive conference technology as provided in section 92-3.5 shall not be required to allow members of the public to join board members at the meeting locations where board members are physically present; provided that the notice required by section 92-7 shall list at least one meeting location open to the public and shall inform members of the public how to remotely view the meeting via internet streaming or other means and how to provide oral testimony via internet link, telephone conference, or other means.

SECTION 4.             This Act shall take effect upon its approval, provided that section 3 shall be repealed on June 30, 2021.