OIP was established in 1988 to use an informal dispute resolution process to help citizens gain access to government records, thus staving off costly lawsuits (Chapter 92F). A decade later, OIP was made responsible for also administering the “public meetings” law (Chapter 92).

OIP advocated for S.B. 2858 to make the appeals process for both laws uniform, although the need for uniformity was not discussed nor justified.

The Legislature had two less drastic alternatives it could have passed instead of the overly broad SB 2858 that sets up the cumbersome judicial process detailed above by the Judiciary Committee chairmen above.

One alternative was to restrict the cumbersome appeals process to ONLY the Sunshine Law. It had been ruled on in the several court cases that gave rise to S.B. 2858.

This alternative would have left untouched the clear legislative intent of the “public records” law (Chapter 92F) that an agency cannot go to court to contest an OIP opinion that mandates public disclosure of its requested record.

In a last-minute petition, this alternative was advocated in a letter to legislators by 18 community and media organizations and 28 citizens.

Leaving the “public records” law (Chapter 92F) out of this judicial process would have left intact a key provision in the legislative history of that law.

That key provision stated: “…a government agency dissatisfied with an administrative ruling by 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.”

The open-government groups argued that including the “public records” law in this cumbersome court process would unnecessarily and unwisely weaken OIP’s powers, waste limited resources of OIP and other agencies, and make it even more difficult for citizens to obtain government records in a timely manner.

The Legislature rejected this alternative advocated by the open-government groups. Now the clear-sighted legislative intent and informal dispute resolution process that had stood the test of time for 24 years have been swept away by the cumbersome judicial appeals process that the two Judiciary Committee chairmen detail above.

In contrast, the Sunshine Law, enacted in 1975, specifies that “any person” alleging a violation of that law can bring a lawsuit in circuit court. In an important case described by the two Judiciary Committee chairmen, Hawaii’s Intermediate Court of Appeals (ICA) held that “any person” could include a public agency, thus paving the way for OIP to be sued under the Sunshine Law (Chapter 92) by a dissatisfied legislative or executive-branch board.

Thus, a second alternative the Legislature could have adopted would have been a 16-word amendment to the Sunshine Law (Chapter 92) to provide it with the same protection against agency lawsuits that the public records law enjoyed under Chapter 92F.

The important court case mentioned above arose when the Kauai County Council posted a Sunshine Law agenda and held on Jan. 20, 2005 a closed-door meeting to discuss whether it should investigate unethical activity of the police department.

The Kauai Police Commission Chairman filed a complaint with OIP first about the agenda and then whether the closed-door meeting was proper and then to get copies of the minutes of the closed-door meeting. OIP relied on the “public records” law (Chapter 92F) and directed the minutes to be redacted and made public.

The Kauai Council countered that it had acted properly under the Sunshine Law (Chapter 92) and that it had a right to sue under that Law. OIP countered that it could not be sued and relied on the “public records” law (Chapter 92F).

But OIP erred by relying on the “public records” law (Chapter 92F) to argue that it could not be sued, the Intermediate Court of Appeals (ICA) held.

Instead OIP should have been relying on the more specific language of the Sunshine Law in which “any person,” including the Kauai Council, could initiate a lawsuit, the ICA held in 2009 in its decision that was subsequently affirmed by the Hawaii Supreme Court.

Th ICA decision left untouched the key provision of the “public records” law that OIP could not be sued by an agency that refused to adhere to OIP’s demand to make public its requested record.

Thus, as the open-government groups and citizens argue, SB 2858 unnecessarily and unwisely swept away the 24-year-old provision in the “public records” law barring agency lawsuits against OIP that had maintained legislative clarity and staved off lawsuits.

Instead passage of SB 2858 risks—even invites—lawsuits in an already overburdened court system.

The second case discussed by the Judiciary Chairmen above also involves a Sunshine Law violation alleged in a lawsuit filed by eight community and news media organizations against the Honolulu City Council involving serial communications. In that suit, the “public records” law isn’t mentioned at all and OIP was only belatedly involved (Right to Know Committee v. City Council, City and County of Honolulu; I was then head of the Right to Know Committee).

The third case mentioned by the Judiciary Committee Chairmen above discusses the “palpable erroneous” standard of review and was decided in 1983, five years before the “public records” law was even enacted and OIP was established (Aio v. Hamada).

In short, these three court cases fail to provide an urgency or need to erode the 24-year-old legislative intent of the “public records” law (Chapter 92F) barring agency lawsuits, thus weakening Hawaii’s public records law and substituting such a convoluted judicial review process described by the Judiciary Committee chairmen above.

The overly broad SB 2858 needlessly and unwisely risks delaying access to a government record which a member of the public requested and to which he or she is entitled under the law in a reasonable amount of time. Mahalo. Beverly Keever

To be fair, please post–and ask OIP to post–the powerful arguments against SB2858 made by Reps. Barbara Marumoto and Cynthia Thielen on the House floor that will also be republished in the House Journal. I was in the gallery and heard those cogent reasons that the cumbersome judicial process outlined by the two Judiciary chairs is unnecessary and unwise. If any comments in opposition were made on the Senate side, which was occurring at the same time as the House debate, please post those also. After all 15 Senators out of 25 voted either against the bill or with reservations–and those numbers included both Republicans and Democrats. I’ll look forward to reading these comments on your web site and the OIP one. Thanks. Bev Keever

As one who has since 1967 fought without apology for openness in Hawaii, I find the whole procedure a delaying tactic. The pubic is not served by delay, never is.

The OIP was an outgrowth of the Watergate period but was not perfect and it has been politicized by recent governors, especially the current one and his predecessor.

If we want reform, make the OPI counsel immune to political pressure. Give her/him a 10-year term much like the truly independent state legislative auditor Higa. I submit she has more pubic confidence and respect than possibly any state employee.

Even better let Sunshine in on the state legislature!