Legislature needs to give records office a backbone

§92F-2 Purposes; rules of construction. In a democracy, the

people are vested with the ultimate decision-making power.

Government agencies exist to aid the people in the formation and

conduct of public policy. Opening up the government processes to

public scrutiny and participation is the only viable and reasonable

method of protecting the public’s interest. Therefore the

legislature declares that it is the policy of this State that the

formation and conduct of public policy — the discussions,

deliberations, decisions, and action of government agencies — shall

be conducted as openly as possible.

Editor’s note: This is the second of two columns on how Hawai‘i’s open record law is being flaunted by government agencies and what the Legislature should do about it.

§92F-2 Purposes; rules of construction. In a democracy, the people are vested with the ultimate decision-making power. Government agencies exist to aid the people in the formation and conduct of public policy. Opening up the government processes to public scrutiny and participation is the only viable and reasonable method of protecting the public’s interest. Therefore the legislature declares that it is the policy of this State that the formation and conduct of public policy — the discussions, deliberations, decisions, and action of government agencies — shall be conducted as openly as possible.

Hawai‘i’s public records law begins with this high-minded paragraph.

But as I outlined in the first column, when the governor and mayor show by their actions that the law can be ignored with impunity, it’s time to admit that as a state we’re not living up to our ideals — and find a way to do something about it.

To her credit, the new director of the Office of Information Practices, Cheryl Kakazu Park, is seeking input on how the law her office administers should be clarified and updated in the next session of the Hawai‘i Legislature.

In that spirit, I’d like to offer an observation and a suggestion.

First, instead of worrying about trendy topics like Facebook and Twitter, as Park suggests we should, it’s essential that the Legislature focus on a much more fundamental issue: the power of her office. The government’s “use of social media in communicating with the public” isn’t very important if her office is essentially a paper tiger, and government agencies can ignore its determinations.

What needs to be clarified is that the person in Park’s job has the power to order agencies to release records. If not, then the purpose of the agency is much more limited than lawmakers imagined when they passed the public records law and created her office in 1988.

If the office doesn’t have that power, the Legislature should decide whether it’s worth our tax dollars to continue to fund a toothless advocate for open government. The office does have a fundamental educational role, but its power was envisioned to be much greater than that.

It would appear from the language of the statute that the director of OIP has the power to make binding decisions.

But Park isn’t exerting that power.

Here’s what the statute says about Park’s job:

§92F-42 Powers and duties of the office of information practices. The director of the office of information practices: Shall, upon request, review and rule on an agency denial of access to information or records, or an agency’s granting of access; provided that any review by the office of information practices shall not be a contested case under chapter 91 and shall be optional and without prejudice to rights of judicial enforcement available under this chapter;

The statute has two sections that speak in plain English about the binding nature of OIP’s decisions when individuals appeal denials or records requests by a government agency:

Here’s the first:

§92F-15.5 Alternative method to appeal a denial of access. (a) When an agency denies a person access to a government record, the person may appeal the denial to the office of information practices in accordance with rules adopted pursuant to section 92F-42(12). A decision to appeal to the office of information practices for review of the agency denial shall not prejudice the person’s right to appeal to the circuit court after a decision is made by the office of information practices. (b) If the decision is to disclose, the office of information practices shall notify the person and the agency, and the agency shall make the record available. If the denial of access is upheld, in whole or in part, the office of information practices shall, in writing, notify the person of the decision, the reasons for the decision, and the right to bring a judicial action under section 92F-15(a). [L 1989, c 192, §1]

And here’s the second:

§92F-27.5 Alternative method to appeal a denial of access. (a) When an agency denies an individual access to that individual’s personal record, the individual may appeal the denial to the office of information practices in accordance with rules adopted pursuant to section 92F-42(12). A decision to appeal to the office of information practices for review of the agency denial shall not prejudice the individual’s right to appeal to the circuit court after a decision is made by the office of information practices. (b) If the decision is to disclose, the office of information practices shall notify the individual and the agency, and the agency shall make the record available. If the denial of access is upheld, in whole or in part, the office of information practices shall, in writing, notify the individual of the decision, the reasons for the decision, and the right to bring a judicial action under section 92F-27. [L 1989, c 192, §2]

The key words above: “The agency shall (emphasis added) make the record available.”

Why would the Legislature have written the law so plainly if it didn’t mean for the person in Park’s position to have the authority to order documents be made public?

I thought the meaning of “shall” was pretty obvious.

Yet, when Gov. Neil Abercrombie brushed off the opinion of her predecessor regarding the release of names of judicial nominees, and Civil Beat and the Honolulu Star-Advertiser appealed, Park said it would be “futile” to issue a ruling.

Something’s wrong with this picture. And before we spend a lot of time worrying about whether government use of Facebook or Twitter makes communication a public record — is that really that complicated, given the spirit of the law? — the Legislature should step in and assert itself.

It was Civil Beat’s Michael Levine, then working for The Garden Island on Kaua‘i, who in 2009 reported the case that undermined the power of the OIP, prompting its acting director to say that it would no longer issue formal opinions, and instead advise requesters that they had the right to sue.

At that time, blogger Ian Lind, who was involved in 1988 when the public records law was written, explained: “OIP’s retreat appears to go far beyond the recent court ruling and appears to reflect the agency’s struggle to cope with a long-term decline in funding as well as recent budget restrictions.”

“It appears that OIP is voluntarily giving up its enforcement power, citing what it called the lack of “specific guidance” from the ICA (Intermediate Court of Appeals),” Lind wrote.

It’s time the Legislature provide that specific guidance.

Tell the OIP director to do what the law gave her the tools to do. Tell her to do what the law intended for her to do.

Although that might seem unnecessary based on the language of the statute, without somebody stepping in and giving the office a backbone, the people of Hawai‘i will not be well-served.

In fact, their open records law will be a sham — and the governor and Honolulu’s mayor will have helped make it so.

• John Temple is editor of Honolulu Civil Beat, an online news source serving Hawai‘i. Read more at www.CivilBeat.com.

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