Hawaii Open Government takes turn for the worse and here is why

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Disclaimer: The opinions expressed by the guest blogger and those providing comments are theirs alone and do not reflect the opinions of the Sunlight Foundation or any employee thereof. Sunlight Foundation is not responsible for the accuracy of any of the information within the guest blog.

Introducing our guest blogger, Ryan Ozawa. Ryan wears many hats, in addition to being a lecturer at the University of Hawaii at Manoa, he is also a technology Cohost at Hawaii Public Radio and a Communications and Project Manager at Hawaii Information Service. You can read more of his thoughts at Hawaii Blog or follow him @hawaii.

If a good compromise is one in which neither side is satisfied, a new bill passed by the Hawaii state legislature is an unmitigated success.

The state Office of Information Practices, dedicated to “ensuring open government” but headed by a political appointee, supported amendments to Hawaii law that would give government agencies a process by which they could fight requests for information in the courts.

Open-government and media organizations fought the measure, saying it created a costly and cumbersome process that goes in the wrong direction. Yet, even some of the government bodies that would be given more options to fight information disclosure decisions by the OIP were against the bill, saying the measure “goes too far.”

The OIP was designed to administer Hawaii’s two main open records laws: the Uniform Information Practices Act , and the Sunshine Law, coverning public meetings. Those laws were instituted with the clear intent to guarantee the public’s access to government information, and the UIPA goes as far as to say that a government agency “does not have the right to bring an action in circuit court” to contest a ruling by the OIP to release requested information.

Unfortunately, the Sunshine Law — which has been around since 1975, but was only added to the OIP’s responsibilities in 1988 — had no such provision. So after the OIP told the Kauai County Council it had to release requested information, the council sued the OIP, and won.

The OIP, which has already been consistently underfunded and understaffed, perhaps rightfully concluded that the Kauai case created an opening through which all its rulings could be contested in court. So SB2858 puts a process in place for judiciary review.

Open government advocates pushed instead for lawmakers to close the door to lawsuits under the Sunshine Law the same way the UIPA did. Alas, the courts are often the final arbiter on any law… even laws written specifically to limit their authority.

SB2858 requires government agencies to notify the OIP of their intent to contest a ruling to release information within 30 days. And the OIP would have 30 days to compile and present its justification for its ruling to the court. Watchdog groups and journalists say SB2858 will only add even more delays to the already slow and arduous process of obtaining government records, delays that can often kill the relevance of the requested information.

But government agencies may not be so eager to contest every request automatically. While SB2858 does set up rules by which they can take OIP decisions to court, it also sets a high standard for them to make their case.

First, a government agency can’t merely tell the OIP it will fight its decision, saving all of its justifications for the judge. Instead, government agencies have to make their best and most complete case to the OIP, because except where there are “extraordinary circumstances,” the courts will only be able to review the same information the OIP had when making their decision.

And secondly, the courts are only allowed to overturn an OIP ruling when it was “palpably erroneous,”or obviously or clearly wrong. If the OIP’s ruling that a record should be released is merely shaky or fuzzy, then, the OIP’s ruling should stand.

These restrictions, as a result, made some government agencies oppose a bill that seemed designed to empower them in resisting public records requests. Danny Mateo, chair of the Maui County Council, testified against the bill, which he said granted the OIP “quasi-judicial authority.”

Nonetheless, SB2858 SD1 HD2 CD1  passed its final reading in the House on Thursday last week, and will most certainly be signed by Gov. Neil Abercrombie.

The Office of the Governor submitted testimony that said it “strongly supports” the bill, as did Cheryl Kakazu Park, whom Gov. Abercrombie appointed to head the OIP. Of course, Park got the job after her predecessor, Cathy Takase, was fired, a move that just happened to come after Takase ruled against the governor’s attempts to withhold a list of names of juidicial candidates. A list that he ultimately and reluctantly was forced to release anyway.

Ryan is also organizing a Sunlight Meetup in Honolulu on Wednesday this week which you are welcome to join.

Interested in writing a guest blog for Sunlight? Email us at guestblog@sunlightfoundation.com

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