When a settlement in the lawsuit alleging churches have for years underpaid for use of Department of Education facilities by millions of dollars, details of the settlement were not publicly available.
On February 4, the Star-Advertiser reported:
Under terms of the settlement, no other details were released, he said.
A representative of the Foursquare Hawaii District office declined to comment Monday.
A reader then asked whether the three-way settlement, which apparently involved the plaintiffs, the churches, and the state, could be kept secret.
That question appears to have become moot as news reports now indicate the settlement was included in documents filed in court this week.
Civil Beat reported yesterday:
The settlement was agreed upon by the state, Foursquare Gospel and Kahle and Huber and only filed in Circuit Court on Tuesday. Anne Lopez of the Attorney General’s office said the settlement’s conditions are favorable for the DOE in that the money is earmarked “for the benefit of the public schools” and isn’t going to the state’s general fund, which is typically the case in such agreements. Foursquare Gospel had to pay the settlement to the state no later than Jan. 31, according to the agreement.
But the question is likely to come up again in the future, so it’s worth looking at.
What is the status of legal settlements involving public agencies covered by the state’s Uniform Information Practices Act, which governs the public availability of government records?
Click through to the links to any of these opinions and you will be able to view the OIP summary as well as the complete text of the opinion.
In a 1989 opinion, OIP allowed the state to keep a settlement under wraps because it involved fewer than all parties to the case, while settlement negotiations continued with others.
In that circumstance, OIP held the settlement could be temporarily withheld from the public.
Under these circumstances, the disclosure of settlement agreements between the State and settling defendants would give a manifestly unfair advantage to the non-settling defendants. Once the litigation is concluded, however, all the settlement agreements must be publicly available.
In 1992, OIP again rejected the idea that a confidentiality agreement could be binding on the state.
Then in February 2002, OIP issued an opinion after an appeal by Tim Ruel, then a Honolulu Star-Bulletin reporter, for access to a settlement agreement between the University of Hawaii and a UH researcher.
UH officials had refused to disclose the settlement, and had later tried to withhold it from OIP, which sought a copy for review.
Chapter 92F-13 spells out five exemptions to the general rule that government documents are public documents. One involves certain documents of the legislature.
OIP addressed each of the remaining exemptions in turn to determine if they would apply to the legal settlement.
OIP found:
• The Settlement Agreement contains no information that would qualify as a significant privacy interest. Neither does the Settlement Agreement contain information clearly identifiable to the individual claiming a privacy interest. Finally, the individual did not identify any specific information claimed to be private and the reason the information was private.
• The Settlement Agreement does not contain information that reflects the mental impressions, conclusions and opinions of an attorney, nor does it discuss matters which an attorney’s client could claim a privilege to not disclose such that it would not be discoverable in a judicial or quasi-judicial action to which the UH is or may be a party.
• The UH did not describe how disclosure of the Settlement Agreement would frustrate a government function. Neither did the UH describe what government function would be frustrated by disclosure of the Settlement Agreement. Therefore, the OIP must conclude that the exception does not apply.
And then OIP reached this general conclusion:
A confidentiality provision in a settlement agreement that contravenes the agency’s duty to the public is impermissible under Hawaii law.
This means that although confidentiality agreements are routinely inserted into settlements between private parties, they cannot supersede the provisions of the state’s public records law.
OIP has maintained that position in a series of subsequent decisions issued over the years, with some clarifications made along the way.
And in July 2010, another OIP opinion found that any payments by private liability insurers made on behalf of a public agency have to be disclosed in the same manner as public funds spent for the same purpose.
OIP opined: (1) that the Insurance Proceeds could not be kept confidential based upon a confidentiality clause in the settlement agreement because such a clause must yield to the UIPA’s provisions; and (2) that no UIPA exception allows the County to withhold the Insurance Proceeds from public disclosure.
In so finding, OIP rejected a distinction between settlement payments made from public coffers versus private insurance proceeds. OIP found that the County’s total settlement amount reflects the expenditure of public funds, either directly from County coffers or indirectly through the payment of insurance premiums.
So what does this mean about the settlement with the churches? At first blush, it appears the 1989 opinion might apply. Recall that in that case, OIP said the settlement could be withheld if it didn’t include all the parties, and in the case of the church use of DOE facilities, two churches had been dropped from the original lawsuit but are expected to face an updated complaint by the original plaintiffs.
I’m guessing that since they were dropped from the original lawsuit, they can’t legally be considered part of those settlement negotiations, and can’t hold up disclosure of settlement details.
But that’s only a guess by this non-lawyer. It would be interesting to see how OIP assesses the situation.
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Fair or not, government secrecy creates a perception:
There is something to hide from (because someone might look bad).
And yet, Hawaii government still has the following *ridiculous* exception to its so-called Freedom of Information law:
“Government records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function”
This is one masterpiece of a Catch-22: The same government that is hiding records based on a “legitimate” function also gets to define the word “legitimate”.
Yes, the state Office of Information Practices can force disclosure. But there is one slight problem:
http://www.civilbeat.com/articles/2013/01/08/18034-hawaii-open-records-agency-barely-makes-a-dent-in-backlog/
“The Hawaii Office of Information Practices (OIP) reduced its backlog just by just six cases in the 2012 fiscal year, leaving 78 pending cases on its list — some of them years old, according to the office’s director. During the 2010 fiscal year, the office cleared 37 cases from its backlog.
OIP, which administers the state’s public records and open meetings law, says the slow progress is due in part to staffing shortages and a major uptick in requests for assistance.
The office received 253 more requests for assistance during the 2012 fiscal year than it did the year before, a 31 percent spike, according to its recently released annual report.
OIP Director Cheryl Kakazu Park attributed the increase to greater awareness among both the public and government agencies of the state’s open government requirements.
“We just worked really hard (at getting the word out),” Park said, noting that “Attorney of the Day” advice calls accounted for much of the increase.
But the office still suffers from understaffing, she said.
The office employs the equivalent of seven and a half full-time positions, according to Park, who’s served as OIP’s director since April 2011. (The report shows that the office had a staff of 15 between fiscal years 1993 and 1995.)
“We’re never going to be completely caught up with everything,” she said, estimating that the backlog would never go down to less than 50 cases at any given time. Some of the backlogged cases trace back to years before, according to Park.”
Tim, your sweeping indictment that “The same government that is hiding records based on a legitimate function also gets to define what is legitimate” makes sense only if you assume all three branches have no independence from each other.
In fact, each of the three branches have combined to help define what is meant by the language from the Sunshine Law when it specifies that there are certain records that should be protected from disclosure because their release would frustrate a legitimate function of government.
In adopting the language of the statute, the Legislature leave a paper trail that can be consulted to understand what the Legislature meant by the term, in addition to any definitions included in the act to provide guidance.
On the executive side, the Office of Information Practices provides interpretations of what is meant by a legitimate function that justifies withholding public records.
Finally, the State Courts can make rulings on whether a State agency’s claims that records can be withheld meet the requirements of the Sunshine Law. For example, in a recent case, a State judge ruled the police departments had to release police discipline records.
And I think that you would probably agree that some public records should be protected. For example, affordable housing eligibility is established through examination of household income and wealth information submitted by applicants with the promise that it will be protected as confidential.
The general information about who qualified for the affordable units being sold for which income group is available but the specifics of their individual finances are protected from disclosure.
In a similar way, advice that staff give to the director of a department regarding policy matters or project approvals or denials are protected so that the department head has the benefit of their candid views without staff having to fear reprisals for what they may have recommended or for the director to fear being attacked when the decision does not go in the way that some staff advised.
In actuality, there is a fairly well established understanding in most cases of what is protected because it serves a legitimate function and what is public information that has to be released, based on the law, the past interpretations by OIP, and the case law established in State court.
unfortunately, you completely missed a major point in your response (this is not unusual in these posts).
please read the rest of my comment this time (see below) before making some ridiculous claim about a “sweeping indictment”. thank you.
———————-
Yes, the state Office of Information Practices can force disclosure. But there is one slight problem:
http://www.civilbeat.com/articles/2013/01/08/18034-hawaii-open-records-agency-barely-makes-a-dent-in-backlog/
“The Hawaii Office of Information Practices (OIP) reduced its backlog just by just six cases in the 2012 fiscal year, leaving 78 pending cases on its list — some of them years old, according to the office’s director. During the 2010 fiscal year, the office cleared 37 cases from its backlog.
OIP, which administers the state’s public records and open meetings law, says the slow progress is due in part to staffing shortages and a major uptick in requests for assistance.
The office received 253 more requests for assistance during the 2012 fiscal year than it did the year before, a 31 percent spike, according to its recently released annual report.
OIP Director Cheryl Kakazu Park attributed the increase to greater awareness among both the public and government agencies of the state’s open government requirements.
“We just worked really hard (at getting the word out),” Park said, noting that “Attorney of the Day” advice calls accounted for much of the increase.
But the office still suffers from understaffing, she said.
The office employs the equivalent of seven and a half full-time positions, according to Park, who’s served as OIP’s director since April 2011. (The report shows that the office had a staff of 15 between fiscal years 1993 and 1995.)
“We’re never going to be completely caught up with everything,” she said, estimating that the backlog would never go down to less than 50 cases at any given time. Some of the backlogged cases trace back to years before, according to Park.”
The notion that only the OIP stands between us and a closed government ignores the role played by the Legislature in investigating and writng new law in this area and the courts in interpreting and enforcing the law.
And I had read your full statement.
OIP has a tough job, and they may deserve additional staff, but the fact that they may be short handed does not mean there are no remedies if you think an agency is hiding behind the legitimate function defense.
If you can convince a judge or a sufficient number of legislators, you can force the agency to an accounting. Several headline cases of this happening recently here in Hawaii come to mind.
Per this approach, to uncover secrecy in government and force disclosure, the public first has to convince a judge or multiple lawmakers. That’s a textbook example of “hula hoops”.
Such an old-school approach ignores the amount of time it takes to force disclosure of important government information through the legal system. And when corrupt politicians know they can stall release of harmful information, they stall. That’s the reason Hawaii created the state Office of Information Practices in the first place! Delaying the release of important information leaves people in the dark, which kicks Democracy in the knees.
Such an approach puts Hawaii’s infamous bureaucratic government ahead of the voters….. and it welcomes future abuses of power. No thanks. Maintaining Hawaii’s slow bureaucratic government system is not *that* important!! we wait long enough at the DMV.
Yes, you have to go through hoops to get access to information that a government agency feels is protected from disclosure.
That is the way it is supposed to work, especially if the information is something that could violate somebody’s privacy or if it would frustrate a legitimate function of government like getting the best bid on a contract or securing candid, unbiased advice for decisions.
You have to file a Freedom of Information request and demonstrate that the information being withheld does not meet the tests for being withheld.
You describe those processes as “old school”.
What process do you think should be followed in the place of these old school processes of either having to convince a judge or to mobilize the votes to throw the administration out of office, or to persuade key legislators that an investigation or a policy change is needed.
We need a system that does *not* allow the following old-school bureaucratic stalling process. Oppenness in Hawaii’s government must be taken seriously; this requires more than mere technical procedures describing how the system *should* work.
“Civil Beat Law Center Aims To Bring More Firepower to Public Issues
By Patti Epler 08/21/2013
We devote a lot of time and much space here at Civil Beat to the issue of government transparency and accountability.
Hawaii actually has decent laws covering public information — the Sunshine Law for open meetings and the Uniform Information Practices Act that specifies what public records can and cannot be disclosed. But in practice, county and state government agencies in Hawaii are not great when it comes to following and enforcing the law.
We’ve found that it’s common for agencies to routinely reject — without good reason — requests for reports, documents and other information that should be readily available. They sometimes simply ignore legitimate inquiries from the press and the public or stall for months. Their redactions can black out whole pages.
The state Office of Information Practices is in place to help people get through the bureaucratic stalemate but, as we’ve reported several times, OIP is about two years behind on resolving appeals. Its opinions requiring disclosure are routinely ignored by agencies.
The only real recourse for journalists or the public is to go to court to force the issue. But the cost of legal action is very often a deal breaker. The public as well as the media has let the agencies off the hook because it’s just too expensive to follow through with a lawsuit.
But that is changing. The Civil Beat Law Center for the Public Interest has been created with funding from the Hawaii Community Foundation via the Pierre and Pamela Omidyar Ohana Fund.
The law center’s primary mission is to help the media and the public get access to government information. Secondarily, the center will be a resource for nonprofit legal organizations who find situations that are too big for them to address alone, given their limited resources.
The center will advise the press — print, TV, radio, online, bloggers — and the public on government access at no cost. And that’s a big step forward for people who have felt alone and powerless when dealing with government officials.
The new law center is an independent organization that shares Civil Beat’s name, but beyond that it has no affiliation with our news site. It does share our mission of encouraging government transparency through investigative and watchdog reporting, and the center’s work is a natural extension of that goal.
In fact, the law center was born in part out of our continued frustration with the challenges in getting public records from state and county agencies, and the Legislature’s apparent indifference to the role that journalists play in holding government officials accountable.
Specifically, our investigative series earlier this year on police misconduct records, In the Name of the Law, explored the need for more disclosure of police misconduct in the same way that all other public employees’ disciplinary actions are available for public review. An OIP opinion supporting making the police records public has been ignored for years by the counties.”
Secret settlements are like secret meetings. They should be banned, forever.
Unfortunately, no country or provincial entity on the face of this planet has ever crafted a govt. with a perfect system of internal checks-and-balances that eliminates every trace of graft and corruption. This is why we need an inquisitive press to act as the fourth branch of govt.
Triple Ditto.
And a dwindling fourth estate will not simply reopen because people want it to come back. A major government disaster, clouded by secrecy and conspiracy, would have to revive demand for accountability, like Enron.
In other words, things will have to get worse before they get better. oooooooops…..