When the Hawai‘i Office of Information Practices decided to lay out a defense of its work last week, it called its almost 1,800 word statement “The Raw Truth.”
I’d say it read more like something that had been cooked up by people who can’t stand the heat of the kitchen.
Don’t get me wrong: It is good to see the office engage in a public conversation about its practices and the state of open records law in Hawai‘i. But it’s sad to see the agency not live up to its mission — “to provide a place where the public can get assistance on records questions at no cost and within a reasonable amount of time.”
Whenever you see a government agency give itself an excellent report card without any independent input, as the OIP did last week, you have to wonder whether it’s not leaving out some important ingredients. The truth being one of them.
Remember, this is the agency whose director recently said it would be “futile” to respond to an appeal by Civil Beat and the Honolulu Star-Advertiser of a decision by Gov. Neil Abercrombie to keep secret the names of judicial nominees. Talk about a principled stand for the importance of open government…
Of course the last director who issued an opinion opposing the governor in the matter was fired. So maybe it was understandable.
But to hear the story of its work from the office now, you’d think there’s little amiss when it comes to resolving public records issues in Hawai‘i.
“In all but a few cases, OIP has been successful in obtaining government agencies’ and boards’ voluntary compliance with its advice and rulings,” the statement says.
Of course what it doesn’t say is that most news organizations, including Civil Beat, don’t normally bother going to the OIP for help. It’s not that the people there are bad. It’s that the governor and other political leaders have sent a clear message to government officials: It’s OK to ignore the OIP. And that’s what agencies in Hawai‘i routinely do.
Let’s be honest, the OIP has no way of knowing how many cases don’t end up on its doorstep. In its own statement, it doesn’t seem quite sure. In one place it says, “Each year (emphasis added), OIP receives over 800 requests for assistance or training, which are handled by three staff attorneys.” In another, it says, “OIP has chosen to protect the greater public interest and to keep the wheels of government functioning by concentrating on the hundreds of requests daily (emphasis added) seeking OIP’s assistance.”
One thing we do know, from the OIP’s own website, is that it is issuing fewer and fewer opinions every year. In the last three years, it has issued fewer than five advisory opinions a year. In 1994, 30 were issued and in 1995, 27 opinions were written.
Here’s the raw truth: The OIP is not exerting the power it has under the existing law, and now it has issued a statement making the case its opponents would make for why it doesn’t have any power. That approach, I’m sure, will rally those who support open government to its side.
What’s seemingly contradictory about the agency’s stance is that at the same time it says it’s doing a great job, it says it wants clarification of its powers from the Hawai‘i Legislature. Maybe the best thing the Legislature could do is shield the agency from the power of the governor, who can fire its director at any time, by bringing it under its umbrella, the way the auditor and ethics commission are.
You’d think, reading the OIP’s statement, that the agency understands its powers very well. According to its own statement:
• Its decisions on appeals of denials aren’t binding on agencies.
• Agencies can sue it if they don’t agree with decisions on appeals.
Let’s look back at the Senate Journal from the 1989 session, the authoritative report of the conference committee that drafted the state’s open records law:
“Your Committee wishes to emphasize (emphasis added) that while a person has a right to bring a civil action in circuit court to appeal a denial of access to a government record, a government agency dissatisfied with an administrative ruling by the OIP does not have the right to bring an action in circuit court to contest the OIP ruling. The legislative intent for expediency and uniformity in providing access to government records would be frustrated by agencies suing each other.”
Could the Legislature have been more clear? The OIP’s decisions on appeals are binding. (More on what it has to do to make that so in a moment.)
Or how about this, from the same document?
“The bill retains the provisions clarifying the OIP’s rulemaking authority … The OIP’s rulemaking authority, as clarified in this bill, would ensure uniformity in the rules which all agencies will follow, without the need for all agencies to hold separate administrative hearings on rules adoptions.”
As I explain below, it’s also clear in sections 92F-15.5 and 92F-28 of Hawai‘i Revised Statutes that the OIP has authority to hear and make binding decisions in appeals if it exercises its rulemaking authority.
What the agency’s statement doesn’t tell the public, maybe because there’s no way to cook this into a palatable story, is that although it has adopted some rules, it hasn’t bothered to put rules in place so it can do its most important job.
Of course the OIP doesn’t make laws, as its statement points out. But it has been given the power to make rules governing the appeals process.
That’s what it needs to do. It doesn’t need to wait to get clarity from the Legislature.
Here’s what the law says about the power of the director:
§92F-42 Powers and duties of the office of information practices. The director of the office of information practices:
(12) Shall adopt rules that set forth an administrative appeals structure
Is that really unclear? Maybe to officials who don’t like the heat of the kitchen, where the head chef (normally known as the governor) may not want to listen to you.
The agency needs to adopt rules for hearing appeals, just the way it adopted rules for agencies to respond to requests. If it did, its rulings would be binding on agencies, but not on requesters of records. So, yes, it’s possible private individuals could end up in court arguing that a document denied by an agency should be made public. But that wouldn’t be their only option, as the OIP’s statement makes clear it is today.
One of the reasons the agency was created was so that people wouldn’t have to file a lawsuit to obtain public records. It’s supposed to be an arm of government that helps the common man obtain records that are public and get them relatively quickly, without the burden of a lawsuit. Now it implies that groups that don’t sue are “afraid.”
The OIP cites two legal cases to base its woe is me attitude. But one was not about its powers under the UIPA, but instead about its powers under an earlier law, the Sunshine law governing open meetings. The other hinged on whether Olelo was a state agency, and as such, subject to the UIPA. The answer: No.
Neither of those cases negated the intent or the spirit of the law, clearly stated in §92F-15.5 Alternative method to appeal a denial of access.
(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.
The truth, raw or cooked, is that the OIP isn’t standing up for an important cause or exercising the powers it already has been endowed by the Legislature. And that’s something I find difficult to stomach.
• John Temple is the editor of Honolulu Civil Beat, an online news source serving Hawai‘i. Read more at www.CivilBeat.com.