At the end of this year’s legislative session, SB2858 became a public rallying point for openness advocates who opposed its passage.
From the bill’s official description: “Creates a process for an agency to obtain judicial review of a decision made by the Office of Information Practices relating to the Sunshine Law or the Uniform Information Practices Act, and clarifies standard of review.”
Here’s what opponents had to say in a letter to legislators and in a Civil Beat commentary.
• Opponents called it the “most serious erosion” in the 24-year history of Hawaii’s Freedom of Information Law.
The problem with this claim is that the bill makes no change in any of the the definitions of public information or public records, or in requirements for open meeting or records. It doesn’t take any type of information or government record and move it out of public view. Over the 24-years since Chapter 92F was passed and the OIP created, there have been other amendments that certainly diminished the public’s right to know.
For example, the exemption allowing meetings with a board’s attorney originally allowed private discussions only of matter involved in actual or potential litigation, as I recall. Section 92-5 was later amended to its current expanded form, which allows a closed meeting “(4) To consult with the board’s attorney on questions and issues pertaining to the board’s powers, duties, privileges, immunities, and liabilities.”
That’s certainly a greater threat to openness. And how about the provision regarding investigations of misconduct by public employees? If I recall correctly, the law originally required disclosure of information in any case resulting in disciplinary action. But it was amended to allow public disclosure only when the discipline resulted in suspension or dismissal of an employee, and there is no requirement for public disclosure in a case involving a police officer unless it results in the officer’s discharge.
So does anything in SB2858 actually reduce the public right to know as much as these and other substantive changes that have occurred over the past 24 years? In my view, the answer is, “no way.” The rhetoric was way overheated.
• Opponents describe the bill as creating “a complex, cumbersome process allowing a government agency to appeal to already overburdened courts an official decision mandating disclosure of a record to which the public is entitled.”
The problem is that having to appeal to the courts is already part of the process. Openness advocates have had to go to court many times under the existing law in order to enforce OIP opinions, which are not self-enforcing. If SB2858 had been voted down, it wouldn’t have eliminated the need for requesters, whether private individuals or the media, to go to court.
• They say it would “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.”
Again, the problem here is that OIP itself believes the bill will strengthen its powers and allow it to more efficiently allocate its limited resources. It’s hard for critics to argue that they know better than the agency what the impact will likely be.
• And bill opponents commented positively on opposition expressed by county officials. “Three members of the Maui County Council, including the chair and the vice chair, and Kauai’s county attorney testified against the bill as did Honolulu’s Managing Director Douglas Chin.”
Pay close attention here. Why did the counties opposed SB2858? Because they all testified it would give OIP more power, and take away county discretion in applying the sunshine and open records requirements of the law.
For example, this is from testimony submitted by the Honolulu Managing Director: “We believe the bill does not give proper weight to the privacy and public policy interests recognized in statute that limit the application of the Sunshine Law and the Uniform Information Practices Act.”
Maui County Council Member Riki Hokama testified in opposition because the bill “would establish the OIP as a ‘judge and jury,’” and allow OIP to “dictate to an elected county council how to conduct business before the community it serves and is accountable to.”
All of the county testimony was based on their understanding that the SB2858 strengthened OIP’s powers and authority, and would require more openness at the county level.
And isn’t that what openness advocates actually want?
• And, finally, opponents said the bill “would permit—perhaps even invite—litigation.”
That’s certainly possible. However, the sunshine law already allows court challenges to be brought by agencies. Has that somehow opened the floodgates to litigation? I think it would be hard for anyone to look at the actual record and say that the law resulted in excessive litigation and the overall blocking of public access to meetings, minutes, etc. Based on the actual 24 years of experience, it appears that the fear of “inviting litigation” is overblown.
It should also be noted that the bill was amended to incorporate additional protections for the public suggested in testimony from the League of Women Voters.
It’s fair to say that this wasn’t a bill that independent openness advocates would have proposed. But, in the end, neither is it the “end of the world” measure portrayed in the closing days of the session, especially after looking more closely at arguments made against it.