Enforcement of Sunshine Law

Editor’s note: What follows is an excerpt of an “In Our Voices” that ran in The Garden Island on Jan. 5, 2006. Many have called the offices this week requesting information on enforcement of Sunshine Law. The editorial, in part, addresses the issue.

The county of Kaua‘i contested the opinion of the Office of Information Practices to the circuit court, even though the Hawai‘i Revised Statutes do not permit OIP opinions to be contested. The OIP regulates record requests, while the Attorney General’s office is responsible for enforcing Sunshine Laws.

A spokesperson from the OIP says the outcome of the county lawsuit, now that it is being considered, may shift the basis of OIP decisions from the legislature’s definition to interpretation in the courts, something the legislature hoped to avoid so that agencies were not suing agencies.

Attorney for the county in the lawsuit, David Minkin, feels if this lawsuit is successful it will set precedent for the courts to be another set of eyes when it comes to Sunshine Law issues.

Rather than suing the office of the OIP, the county should have gone to the state legislature to amend the statute, said OIP spokesman, Les Kondo. This is the first time anyone has challenged the OIP in court, said Minkin.

Regardless of the outcome of the county lawsuit against the OIP, or the lawsuits against the county, civic government on Kaua‘i should move toward an attitude of openness and accountability.

If Sunshine Law opinions by the OIP now get challenged in court, and in effect change its capacity to regulate how the public acquires records, that is a dangerous direction to be heading. It is an independent government agency, not an advocate of the media, but an advocate for open government, for the public.

A better course would be to make records available to the public. Especially if the law says they should be released. If the minutes address issues spelled out in open records law that exempt their release, that is one thing, but if the county is simply trying to keep minutes from the public, that is wrong. What is the county trying to hide by not releasing them?

The county prosecutor, under the statutes, has the ability to prosecute violators of Sunshine Laws. If the OIP is neutered by court cases, then prosecution may be one of the last remaining options for open records advocates within the realm of public governing bodies on Kaua‘i.

And that is something that has never happened on the island.

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