Recognizing the popular appeal of promising an open and transparent government operation, President Obama campaigned in 2008 that if elected he would have such an administration. Although it may be questioned whether his campaign promises were fulfilled, the reality is
Recognizing the popular appeal of promising an open and transparent government operation, President Obama campaigned in 2008 that if elected he would have such an administration. Although it may be questioned whether his campaign promises were fulfilled, the reality is that government officials at all levels find it more convenient to conduct their affairs out of the public view.
In Hawai‘i the Sunshine Law was enacted to require open access by citizens to meetings of public agencies, and the Information Practices Law provides open access to government records. The Office of Information Practices was created in 1988 to administer these laws.
Although the Sunshine Law states that it is the policy of the state that governmental affairs shall be conducted as openly as possible, it is evident that in many respects it is not.
On Kaua‘i, the penchant of county officials for doing business behind closed doors is clear cut. The operations of our council and the administration is brazenly opaque. Illustrative instances of the proclivity for operating out of the public view abound. Let us mention a few.
Planning and construction of the Eastside bike path has been going on for almost 20 years. Although, to my knowledge, the views of our citizens on this project have never been put to a vote or surveyed by a poll, it is probable that most of us approve of its existence. But there are many who wonder how much money has been spent on the project to date and how much more it would cost if it were to be completed over its originally intended 22 miles. Despite this natural curiosity as to how our taxpayer money is spent, our government has carefully deflected all inquiries. Even when a council member sought to get information on the total cost of the project and about what portion of it came from county funds, the information barrier prevailed.
Until 2008, the County Charter contained language calling for openness in council meetings that was more rigorous than similar terms in the state Sunshine Law. The charter specified that secret executive sessions would only be permissible for the consideration of “claims.” Nevertheless, the council persisted in having executive sessions to consider a variety of other issues. Over a period of several years citizen activists attending council meetings protested this rather apparent violation of the charter. On a few occasions, council members would state that the executive sessions were legal because they had been so informed by the County Attorney. The activists were never provided any further information. But evidently the pressure was being felt because ultimately the response was to propose to change the charter to conform with the Sunshine Law and, with chicanery, it was adopted.
Recently the county has adopted a test program to “improve” the residential refuse pickup methods. Under the program the county has leased six automated trucks to handle the 96-gallon containers being required. A citizen wrote an inquiry to the administrator to obtain the terms of the leases — their rental and length. The citizen was advised by the administrator that “I … am not able to conduct custom analyses of program costs … as I have other priorities.” So much for compliance with the Information Practices Law.
In my last column I noted the failure of the council to respond to the basic question whether the ordinance granting the Planning Commission authority to administer the growth in county transient accommodations was legal. The council simply hid behind its attorney-client privilege and thereby frustrated a very reasonable inquiry as to its fulfillment with its duties.
As mentioned earlier, the Office of Information Practices was formed to administer the disclosure laws. Initially it undertook to assist citizens who believed that a governmental body had not acted in compliance with a disclosure law. The OIP would present the citizen claim to the governmental body and examine its response. If the OIP believed a violation had occurred it would, if requested by the citizen, initiate litigation to obtain a correction. But after a couple of judicial setbacks the OIP retreated and decided that its role would be limited to trying to persuade governmental entities to conform to the disclosure laws. But without a credible threat of litigation to back up their position when governments did not want to comply, they simply did not. The end result is that we have essentially returned to the position that citizens must try to enforce their rights or suffer non-compliance. In the great majority of the cases citizens cannot financially justify the cost of litigation.
The current situation is that there is basically no meaningful pressure on government agencies to comply with the Sunshine Law or the Information Practices Law, and compliance is haphazard. In this climate citizens have realized that their prospects for obtaining desired information is dubious and efforts to seek it have diminished. Unfortunately, despite their worthy purpose, the disclosure laws at this time are largely futile as our government can pursue its arcane paths without trepidation and our society is correspondingly disserved.
• Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.
