“Secret” gambling report is no secret at all

[text]This study of gambling on Oahu prepared by a gaming industry consultant has been a point of controversy since Governor Lingle’s office declined to make it public in response to a request from blogger Doug White (Poinography.com).

Although the governor’s office considers it confidential, lobbyist John Radcliffe, who submitted the report to Lingle, was more than willing to make a copy available. Just click on the cover page to read the whole report.

This does give us an interesting look at how well our public records law is working.

If you occasionally stop by Doug White’s blog, you know that he requested (and, after a year of waiting, finally received) communications received by Gov. Lingle asking her to sign or veto bills passed during the 2009 legislative session. Doug has been slowly working his way through the information received, painstakingly cataloging and indexing it all.

One document that caught his attention early on was described as “Executive summary and presentation material, Market and Economic Impact Analysis Two Casinos on the Island of Oahu.”

Governor Lingle’s office did not produce this report, claiming that it is exempt from public disclosure, citing “deliberative privilege.”

Here’s what Doug had to say in a blog entry last month.

This batch does have one especially intriguing item: check out this record, a letter from über lobbyist John Radcliffe about establishing two gaming casinos on Oahu. The report Radcliffe refers to in the letter was not provided in response to my UIPA request, and I challenged the Office of the Governor’s claim of “deliberative privilege.” The initial response from the OIP suggested that they will uphold the deliberative privilege—even if the report was not created by the government but was only “solicited by” a government agency. However, that OIP decision may have been made in ignorance of Radcliffe’s letter, which clarifies that the study is ten years old and, thus, was not solicited by the Lingle administration. I await further OIP review of my challenge, and I have a strong hunch that I’ll get the report. If I do get the report, it will be posted here, natch.

Doug wrote last week (Oct. 6) that he was still waiting to hear from OIP concerning their position on this report.

It’s hard to understand how this record could be considered exempt from public disclosure. First, it was not a product of internal government discussions, but was produced by a third party, in this case an organization that lobbies for the gaming industry. Second, it was never secret or confidential, and was intended for distribution. In the linked memo, Radcliffe says it was “widely circulated among legislative circles.” You can bet that he was well paid to get it in front of the eyeballs of as many influential people as possible. Third, it was over eight years old, dating from December 2000.

Doug says the governor’s office has claimed an exemption based on “deliberative privilege.”

The closest parallel is to Exemption 5 of the federal Freedom of Information Act, which allows federal agencies to withhold “inter-agency or intra-agency memorandums or letters” from the public if they “would not be available by law to a party other than an agency in litigation with the agency.” According to a Justice Department guide to Exemption 5, the “deliberative process privilege” is one of three legal privileges incorporated into this exemption.

According to this Justice Department discussion, the exemption would not apply to communications from consultants representing other outside interests advocating for their own position in competition with other interests.

The Reporters Committee for Freedom of the Press reports it this way:

In 2001, the Supreme Court unanimously reiterated that under Exemption 5 the source of the documents must be a government agency. The Court reasoned that agency consultants might be covered under this provision because they acted like agency employees. But communications from groups (such as the American Indian tribes at issue in that case) who worked in their own interest could not be covered. 54

A later version of this FOIA guidedescribes the circumstances under which courts have extended the privilege to consultants:

In these cases, courts have emphasized that the agencies sought this outside advice, and that in providing their expertise, the consultants effectively functioned as agency employees, providing the agencies with advice similar to what it might have received from an employee (though it should be noted that there is no requirement that an agency not have its own employee with relevant expertise before seeking the assistance of an outside consultant).

The DOJ then addresses the deliberative process privilege directly.

The most commonly invoked privilege incorporated within Exemption 5 is the deliberative process privilege, the general purpose of which is to “prevent injury to the quality of agency decisions.” Specifically, three policy purposes consistently have been held to constitute the bases for this privilege: (1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are finally adopted; and (3) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency’s action.

There are a lot of legal references cited in these FOIA guides. But despite all the back and forth, it seems improbable that a ten-year old study prepared by an independent consultant for a special interest group that was widely circulated a decade ago, could now be legitimately claimed to be exempt from public disclosure in order to protect internal government deliberations.

Now its time to go watch the sunrise.

12 responses to ““Secret” gambling report is no secret at all

  1. OIP started off with a strong belief in the mission. Our Sunshine Law was one of the best in the country. In fact, it REMAINS one of the best. On paper!

    But over the years, through budget cuts and from banging their heads against the wall, the people at OIP have resigned themselves to being yet another jaded, cynical state agency. Just going through the motions and protecting state agencies from embarrassment. Gone is any “fire in the belly.” They are indistinguishable from other listless state agency.

    If Neil wins, I hope he will shake things up at OIP. It may require some firings to clean out the defeated people now occupying positions. MAYBE new leadership, committed to transparency and accountability can breathe new life in to the OIP, but I am not willing to allow rose-tinted optimism to override the need for dramatic change in the agency’s performance.

    • That’s not a fair characterization of OIP. Their staff attorneys did a great job getting records for me from a stubborn Honolulu Police Department. It took time, because they are understaffed. But a few months is a reasonable amount of time to wait under the circumstances. Also, Doug White would not have received as much as he has without OIP help.

      I have a couple FOIA requests pending with the USDOJ. After waiting 4 months for a response, they wrote today and said it’d likely be another 9 months for get the information! With OIP’s help on some local FOIAs I only had to wait a fraction of that time.

      Could OIP be better and faster? Sure, what government agency couldn’t.

  2. Does anyone know who paid to have the report written? Was it the gambling lobbyists in Hawaii, or mainland lobbyists, or was it an agency of the Hawaii state government? If it was the Hawaii government who paid, then it was the Cayetano administration who paid for it (2000) and the Lingle administration who has protected its secrecy for the past 8 years.

    This analysis of having 2 casinos on O’ahu is very significant with regard to the Akaka bill, because of the date. The Akaka bill was written in Spring 2000, introduced in Congress for the first time in Summer 2000, passed the House in 2000 and remained alive in the Senate until the very last day of the 106th Congress in December 2000 at which time an Inouye stealth maneuver failed.

    Gambling was never mentioned in the Akaka bill during year 2000. OHA and the Hawaii delegation were hoping to pass a bill that would allow gambling, by not mentioning it. For example, here’s the version of the Akaka bill which passed the House in 2000 and was pending in the Senate right up until the last day of the 106th Congress in December 2000 when Inouye was trying a stealth maneuver; you’ll see there’s nothing in the bill referring to gambling.

    http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaFinal106.html

    One sentence which APPEARS to prohibit gambling was first inserted in the new 107th Congress in 2001, but all it actually does it to prohibit the Akaka tribe from using one particular method for getting a casino (the Indian Gaming Regulatory Act).

    The reason for inserting language about gambling was NOT to protect Hawaii from tribal gambling, but rather to protect mainland tribes from competition by casinos operated by mainland branches of an Akaka tribe — Senators from mainland states felt compelled to protect their own tribes and/or state government gambling franchises against the Akaka tribe, so in order to get their votes for the bill it was necessary to give at least an appearance of prohibiting the Akaka tribe from having a casino. For example, California has a lot of tribes with casinos, and California also has 65,000 ethnic Hawaiians. There are lots of Hawaiians in Las Vegas, too. As the years went by the mainland Senators insisted on stronger language to prohibit gambling, and then even stronger language; because the tribes and state government agencies warned their Senators that the wimpy language in the earlier years would no longer be sufficient to satisfy the worries about competition from the Akaka tribe.

    • I believe it was paid for by John Radcliffe’s client on the mainland.
      It was not paid for by any government agency, to the best of my knowledge.

  3. Thanks to Mr. Radcliffe. And, thank you, too, Ian, for the scan and publish.

    I continue to wait for an OIP response, and I agree with Ben Markus that Kolea is too hard on the OIP. OIP may be nearly toothless, but they have been showing those few teeth on my behalf when they deem the facts would warrant them to do so.

    While I’m commenting here, I’ll shamelessly plug my other interesting find from last week: a letter from Alec Sou of Aloun Farms to Governor Lingle about his enterprise zone benefits and the connection to his, uh, workforce.

    Needles, haystacks, much? 🙂

  4. I think some of us should find more things for the government to hide, like an Easter Egg hunt. Others should then FOIA for these same things and protest loudly about coverups. At that point governmental CYA will kick in, no matter how innocuous the initial report may appear.

    This will in time provide work for a new generation of investigative reporters and will help keep bureaucrats too busy to cook up other naughtiness.

    Think of this as the Milo Minderbinder theory of civic engagement?

  5. 1) OK, Ben and Doug are right. My frustrations with the OIP led me to condemn them unfairly. They ARE understaffed, which makes it difficult for them to comply with deadlines. And, they do have to fight against the widespread resistance of other agencies to the Sunshine Law. I’m glad they are there. Mea culpa.

    2). Ken Conklin’s explanation for the ban on gambling in the Akaka Bill is different from how I remember things. Early rightist critics of the Bill claimed it was motivated by gambling interests seeking to take advantage of the ability of native people to set up casinos. I know Ken has little understanding of Hawaii’s culture, but opposition to legalized gambling is quite strong here.

    I mentioned Karl Popper to a friend last night and he seems appropriate here as well. How can we prove the truth or falseness of Ken’s claims about gambling interests? If the Akaka Bill were to allow casino gambling, that becomes evidence it is serving organized crime. If the Akaka Bill bans gambling, it is serving the interests of organized crime.

    Either way, Ken and his pals will weave whatever is at hand to disparage the Bill. I suspect he opposes the Bill.

    • Kolea, I don’t know why you are raising the topic of organized crime. Read my comment again and you’ll see that I never mentioned it. You’re trying awfully hard to disparage me, but you have failed miserably.

      I also should add that your mention of Karl Popper’s name in connection with “proving” something is totally inappropriate. Please read his books “Conjectures and Refutations” and “The Logic of Scientific Discovery” and you will discover that his whole epistemology is based on his belief that it is impossible ever to prove anything. He says all we can do is offer a hypothesis and then try as hard as we can to DISprove it. If we try hard over a long period of time to disprove it, and fail to disprove it, then it is reasonable to accept it. You might like to read my 1971 academic article “Fallibilism: A Terrible Mistake” at
      http://www.angelfire.com/planet/conklinpubsbeforehaw/FallibilismEdForumNov1971.pdf

  6. Although I am not invovled professionally in supporting legalized gambling, I certainly want to see it happen here from a personal POV.

    I would start oof with a lottery, OTB betting on sports and horse-racing, and horse-racing itself. As for casinos and the gaming gizmos such as slots, I would certainly be open to thinking about allowing them.

    The moral police and their blather about protecting the poor from using their limited dollars inappropriately as well as all of us from organized crimelords who will roll into town to set up the infrastructure and peel off the profits into some overseas bank is an insult to the rest of us.

    If people want to gamble, let them do so in a safe and decent environment.

  7. Whoops!!! invovled = involved

    oof = off

    OTB betting = OTB businesses

    Sorry – haven’t finished my 4th cup of coffee yet.

  8. Kolea is not entirely wrong; while working as a reporter I had my share of frustrations with OIP, usually because of the lengthy time it took to get a response in some cases. I attributed the situation to a shortage of attorneys. At the time he was fired for protected union activity in 2005, one of my colleagues had been waiting on one request for six years.

  9. The trouble with the deliberative process privilege is that it shields all the “good stuff” the public want’s to know about. The same issue was confronted in the Waihee Era, regarding consultant reports on tourism and on the potential “spaceport” and on State worker satisfaction.

    The privilege is not expressly recognized in any of the exemptions in 92F-13 but was engrafted onto the frustration of legitimate government function exception by OIP advisory opinions.

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