OIP’S ADVICE FOR AGENCIES AND BOARDS DURING THE TEMPORARY SUSPENSION OF THE LAWSPosted on Mar 23, 2020 in Featured, What's New
As the COVID-19 virus has become a global pandemic and a serious threat to the health and welfare of our State’s population, the Uniform Information Practices Act (Modified), chapter 92F, HRS (UIPA), was temporarily suspended, and the Sunshine Law, part I of chapter 92, HRS, was substantially suspended, by the Supplemental Proclamation of Governor Ige dated March 16, 2020 (SP), to give government the maximum flexibility to focus its attention and personnel resources on directly addressing the immediate situation at hand. When the situation is stabilized and there is proper leeway to re-direct those resources, the suspension of these laws will be lifted. Additionally, in an effort to contain the virus, the State and county governments have directed government agencies and boards to physically close their offices and allow employees to telework, if possible. Moreover, emergency orders requiring people to stay and work in their homes, except for essential workers and tasks, have been issued, thus essentially prohibiting the public’s physical participation in public meetings.
Under these extraordinary circumstances, OIP offers the following advice for agencies and boards.
With respect to the UIPA, until such time as the SP is terminated, agencies are not required to follow the UIPA’s normal mandates to respond to record requests from the public. For requests made before the SP was issued but due after March 16, the UIPA’s suspension means that the agency is not required to respond until after the SP is terminated, and the delay in its response does not violate the UIPA. If the agency’s response to a request was overdue on March 16 when the SP was issued, the agency is not required to respond while the SP is in effect, but its failure to have responded by the due date (before March 16) could still be the subject of a complaint by the Requester after the SP is terminated. Requests made while the SP is in effect do not require a response, as they were received while the UIPA was suspended. The Attorney General’s Office has recommended the following language to respond to such UIPA requests:
As this is a global pandemic and a serious threat to the safety and welfare of our state’s population, 92F was suspended to give government the maximum flexibility to focus its attention and personnel resources on directly addressing the immediate situation at hand. When the situation is stabilized and there is proper leeway to re-direct those resources, the suspension of 92F will be lifted.
With respect to the Sunshine Law, the SP makes clear that during this substantial suspension of the Sunshine Law, board actions that would otherwise violate the Sunshine Law will not be considered invalid. Nonetheless, the SP asked boards to allow public participation through the suggested measures where reasonably possible. Specifically, the SP directs boards to “consider reasonable measures to allow public participation consistent with social distancing practices, such as providing notice of meetings, allowing submission of written testimony on agendized items, live streaming meetings, and posting minutes of meetings online.”
To comply with this directive, OIP suggests a board first determine whether a pending issue really needs to be considered during the current emergency conditions, or whether the matter can wait until the board is able to operate more normally. Given the suspensions of numerous other laws and the extensions of time that have been declared in response to the emergency, it may be unnecessary for the board to immediately address something that would otherwise have been time-sensitive.
What follows are some suggestions to address different Sunshine Law questions that may arise during the COVID-19 crisis.
- How can a board hold a meeting online, if necessary?
If a board needs to hold a meeting, it could use videoconferencing software to livestream a meeting and allow the public to view it, and potentially could also allow testimony by those members of the public with appropriate equipment to participate (e.g., computer; telephone). Alternatively, some videoconferencing software also allows for chat connections and could accommodate public participants with a computer but without access to a webcam and microphone setup. The State Office of Enterprise Technology Services (ETS) recommends using a commercial platform if possible, as there are some restrictions with free products (e.g., limited number of users or time limits). ETS also notes that as the world is moving to telework, users may notice service degradation during peak business times, and commercial products are more likely to handle the surge than free services. Given that, some examples of videoconferencing software ETS recommends are Office 365 Teams, Zoom, Webex, Google Hangouts, AWS Chime, and GoToMeeting. A roundup of paid and free videoconferencing software can also be found at https://www.techradar.com/best/best-video-conferencing-software. For state boards and agencies, the ETS help line is 586-1900.
Once the emergency stay/work at home orders are lifted, if a board’s office is open but the board will be meeting via videoconference without admitting members of the public to the locations where board members will be physically present, the board could consider the feasibility of setting up a monitor, microphone, and/or videocamera at its office to broadcast the meeting for interested members of the public who do not have the technical equipment or internet access to otherwise view or participate in the meeting. This could be combined with other precautionary measures, such as placing any chairs in the public viewing area 6 feet apart and sanitizing surfaces. The board’s agenda could also contain a statement requesting that people notify the board a few days in advance if they plan to physically attend the public viewing area, so that the board can try to appropriately prepare for the number of expected people.
- What if the board needs to meet, but is unable to provide notice as is normally required by the Sunshine Law?
While board members and staff are working from home, they may face difficulties, such as being unable to access the mailing list of people to receive notice, or unable to log in to post to the electronic calendar. Nevertheless, if the board believes the issues it plans to consider cannot wait until the meeting notice is posted in the usual way, then the board could try to get a notice of its meeting out to the public via alternative means, such as announcements on Twitter, Facebook, Instagram, or other social media sites, or a press release submitted to a TV or radio station or newspaper’s community calendar. Similarly, if difficulty in posting notice from home prevented a board from posting in the usual manner by the usual date of six days prior to the meeting, the board should still post its notice via the usual means as soon as it reasonably is able to. A board might also need to post its notice closer to the meeting date than would normally be allowed because of an issue that would normally allow the board to hold an emergency meeting under the Sunshine Law, and so long as the SP is in effect, the board is not obligated to follow the Sunshine Law’s usual requirements for holding an emergency meeting
Whatever method a board uses to notify the public of a meeting, its notice should still list the items to be considered with the same level of detail normally required by the Sunshine Law, as discussed in greater detail in OIP’s Agenda Guidance for Sunshine Law Boards.
- What if a board is unable to receive written testimony in its usual way?
During the COVID-19 emergency, a board’s office might be closed so it is unable to receive postal mail or no one is currently able to check its usual email address. In such situations, the board should use whatever meeting notice it is providing to also get the word out as to the best way for members of the public to submit written testimony for that meeting. That alternative method for submitting testimony could be the email address of a board member, or a Dropbox or other shared document site where testimony can be posted by members of the public.
- What if a board is unable to get its minutes of a meeting completed within the usual timeframe?
During the COVID-19 emergency, a board may not be able to post its minutes on its website within 40 days after its meeting, as is normally required by the Sunshine Law. In that case, the board should still do its best to ensure that it at least has substantial notes or a recording of the meeting so that recollections of the meeting are not lost and it retains the ability to create minutes when its normal operations resume. Particularly if the meeting was one to which the board was unable to provide significant public access, the board should consider sharing whatever notes or recording of the meeting it does have with the public. If it is not possible to access the board’s website, the board could share its notes, recording, or draft minutes via social media, YouTube, Vimeo, or a similar video sharing service.
- Will OIP still have an Attorney of the Day to help advise me?
Yes, OIP still has an assigned Attorney of the Day (AOD) to respond to Sunshine Law and UIPA questions, which should preferably be submitted by email to [email protected]. OIP’s office is physically closed, but its attorneys are teleworking from home. Due to the physical closure, however, OIP will have restricted ability to respond to mailed or telephone inquiries, and the latter are more likely to go to voice mail and will take longer to be returned.