It would be useful for some lawyers to chime in with answers to that question–what the heck does “palpably erroneous” mean in legal terms?
On the scale of legal standards, where does this one rank?
The question is important in assessing a pending bill to change Hawaii’s public records law to allow agencies to challenge opinions by the Office of Information Practices requiring public disclosure of government records.
Currently, agencies can go to court to challenge decisions applying the open meeting provisions of the sunshine law, but have no right to judicial appeals under the open records provisions.
The difference between the two laws, and differing interpretations of a Supreme Court case in which the two statutes overlapped, have been cited by OIP as sources of confusion and uncertainty.
While SB 2858 would allow agencies to file court challenges, they could prevail only if OIP’s opinion was found to be “palpably erroneous.”
This is apparently considered a very standard, but it isn’t defined in the bill, and I didn’t turn up a clear definition in a quick Google search this morning. The best answer came in these brief sentences buried in a longer legal commentary:
Referring to Black’s Law Dictionary, the court said palpable was defined as “easily perceptible, plain, obvious, readily visible, noticeable, patent, distinct, manifest.” It went on to observe that, “In A Dictionary of Modern Legal Usage, Second Edition, palpable is defined as ‘tangible, apparent.’”
The bill was amended in the Senate to add a 30-day deadline for agencies to file any challenges, and again in the House to further limit agency challenges arising outside that 30-day window.
It has now passed the House and Senate in amended forms, and is headed for conference. The House just appointed its conferees: Keith-Agaran, Har Co-Chairs; Tokioka, Riviere. Senate conferees have yet to be appointed.
So first, the question: Just how high is that “palpably erroneous” standard? If it is high enough, it would actually serve as a deterrent to agencies considering challenges to OIP.
Then, a suggestion: How about a penalty provision of some kind against agencies filing flimsy appeals primarily as delaying tactics to stall public disclosure? I think that’s one of the things proponents of openness fear will result from allowing agency challenges, and I’m sure there’s a way to address it.