I have for many years considered that there is a nobility in the opening words of our state Sunshine Law which declares: “In a democracy the people are vested with the ultimate decision making power. Governmental agencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable way to protect the public 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 governmental agencies — shall be conducted as openly as possible.”
For the same many years I have been skeptical that this policy is being observed.
The Office of Information Practices was formed to administer Hawai‘i’s information practices law and to receive, advise and resolve citizen complaints as to agency compliance with the Sunshine Law. The dichotomy as to the policy for open government also exists as to the operations of the OIP.
The Garden Island Forum readers have been recently provided sharply different views as to the actual function and operations of the OIP — the critical comments by John Temple of the Honolulu Civil Beat and the rather weak statement by the OIP.
OIP grandly says that it provides an alternate dispute resolution process for members of the public who seek OIP assistance in obtaining government records or open access to meetings. But it doesn’t say what happens when the process stalls and the records or access are not voluntarily provided. Instead it points out that its decisions are not binding on government agencies and that the legislature did not intend that OIP should sue the recalcitrant governmental bodies.
This characteristic of the OIP to initiate an effort to help citizens in seeking records or open meetings but failing to follow through when the governmental agency resists is destroying its credibility. OIP says that it enforces open government laws through voluntary compliance by state and county agencies and boards. But what happens when the compliance is not forthcoming? OIP offers no meaningful response.
The operations of the OIP as to the Sunshine Law resemble the function of the Office of Internal Affairs in police forces. Both are engaged in examining potential misconduct by government employees or agencies. Neither win popularity contest with those that are being examined. If there is no ultimate enforcement power then voluntary compliance is likely to fail.
OIP complains that it has neither the budget nor the staff to litigate to enforce its rulings and it says the legislature never intended for agencies to sue agencies. It may be right that the statutory authority does not adequately express OIP enforcement powers.
But if the mission of the OIP is to assist members of the public who lack the ability or means when there is a grievance for non-disclosure of records or breach of the law on open meetings, the mission is served when there is voluntary compliance, but when after the OIP has found a failure by the governmental agency and compliance does not occur, should it not be the duty of the OIP to continue to provide aid to the citizenry?
OIP whines that court decisions have allowed an agency to challenge an OIP ruling by suing OIP rather than the requester saying it should be immune from such litigation contending that judges are not sued on their decisions. But the role of the OIP is much more than a judicial one. It is also an investigator and a prosecutor.
John Temple is certainly right when he notes that OIP has failed to act as authorized by law and adopt rules for an administrative appeals structure. If it had done so voluntary compliance would likely be much more probable and if litigation were ultimately necessary its risks for the requester and the OIP would be sharply reduced.
The writer has sought OIP assistance on several occasions. The staff is invariably polite and friendly. Except in one instance, the OIP found there had been some failure by the governmental agency, but in no case did an appropriate compliance action occur. Most recently I questioned the propriety of the notice of an executive session held by the Kaua‘i County Council. I am now awaiting a response from OIP to an inquiry I sent over three months ago.
Currently the OIP has been buffeted by its inability to effectively serve its purposes and its staff has defensively withdrawn to a posture that does not serve the public interest. It should examine the factors that are impeding its ability to carry out comprehensive service to the public and vigorously present its needs to the legislature. It may be difficult to achieve the curative actions required in today’s economic imperatives, but to fail to try to structure itself to be able to perform adequately its intended mission would make a mockery out of the noble words quoted at the beginning of this article.
• Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.