While some people believe that OIP should exercise more power to force recalcitrant government officials’ compliance with its rulings, the raw truth is that OIP has never been given any statutory power to do so.
Instead, OIP was designed to and has effectively enforced Hawai‘i’s open government laws through informal processes and the voluntary compliance of state and county agencies and boards.
Thanks to the genuine desire of government officials and volunteer board members to abide by the law, OIP has succeeded in providing advice, training, and assistance to prevent or correct open government problems in over 800 requests that OIP receives each year. Additionally, OIP’s alternative dispute resolution process provides free, quick, and easy access to justice for the members of the public, including the media, who seek OIP’s assistance in obtaining government records and open access to meetings.
The Legislature never intended or provided resources for OIP to parallel the formalities, expense, and lengthy processes of litigation in the courts or in contested case proceedings, nor did it intend for agencies to sue agencies.
Questions have arisen, however, as a result of recent Hawai‘i court decisions that allowed an agency to challenge OIP’s decision by suing OIP instead of the requestor who obtained the decision mandating the agency’s disclosure.
Just as judges are not sued on their decisions, OIP should not be made a party to a lawsuit when an agency does not agree with an OIP decision mandating disclosure, especially since OIP has no corresponding right to itself seek court assistance to compel disclosure.
Instead, OIP’s decision should speak for itself and be given great deference by the courts. Rather than tying up OIP’s resources to defend its decision in the rare case where an agency refuses to comply, the government and the general public are better served by OIP’s provision of services to the vast majority of agencies that want OIP’s help and will voluntarily comply with the law.
Thus, while recognizing that bona fide disputes will occasionally arise between OIP and agencies that will require resolution by the courts, OIP intends in the 2012 session to seek legislative clarification of its appeal rights and responsibilities and to also address social media and other concerns.
Here is a link to the Office of Information Practices’ latest article on its website, which corrects misconceptions about OIP’s powers, duties, and role in promoting open government: http://hawaii.gov/oip/whatsnew.html