Thanks to Kauai Blogger Andy Parx for calling my attention to a December 6 story by Garden Island writer Michael Levine regarding a recent court ruling on the state’s sunshine law and its impact on the Office of Information Practices.
OIP’s acting director told the Garden Island that it will no longer issue formal opinions in cases where agencies refuse to disclose public records, and instead will advise requesters of their right to file suit.
OIP’s retreat appears to go far beyond the recent court ruling and appears to reflect the agency’s struggle to cope with a long-term decline in funding as well as recent budget restrictions.
The case involved a dispute between the OIP and the Kauai County Council over disclosure of minutes of a 2005 council meeting held in a closed executive session.
OIP had advised that the minutes had to be publicly disclosed, and the council responded with a law suit seeking to overturn the ruling. Both the District Court and Intermediate Court of Appeals ruled for the county and against OIP, and the Hawaii Supreme Court let the ICA ruling stand.
Although the ruling deals specifically with the limited issue of meeting minutes, OIP now says it will no longer issue formal opinions on appeals of agency decisions to keep records secret.
Levine quotes acting OIP director Kathy Takase:
“With respect to minutes in particular, I think it’s clear that the court will look at the issue, so we wouldn’t be the final decision on minutes,” she said. For that reason and because her office is currently shorthanded, OIP will no longer issue formal opinions but will instead issue only advisory opinions.
According to a statement on the OIP web site:
Any person who wishes to seek enforcement of the UIPA’s disclosure requirements where an agency has denied access to a government record may bring an action in court. Where the complainant prevails, the court will assess against the agency attorney’s fees and other expenses reasonably incurred in the litigation. An OIP advisory opinion is admissible in such an action.
Takase explained that this is due to OIP’s limited resources, which will be concentrated in areas where it’s opinions are controlling.
“We haven’t fully analyzed how it affects our operations once we are hopefully fully staffed,” she said.
Parx is correct in fearing that OIP’s pull-back will weaken its authority and powers, but that appears to result from OIP’s decision to extend the ruling from cases involving minutes to those involving all types of government records.
Parx cited the issue again in a post yesterday on his “Got Windmills?” blog.
The case is complicated because it involves slightly different provisions of both the sunshine law and the Uniform Information Practices Act.
The sunshine law specifically allows for appeals to court.
Section 92-12 HRS provides, in part:
(c) Any person may commence a suit in the circuit court of the circuit in which a prohibited act occurs for the purpose of requiring compliance with or preventing violations of this part or to determine the applicability of this part to discussions or decisions of the public body. The court may order payment of reasonable attorney fees and costs to the prevailing party in a suit brought under this section.
The UIPA, on the other hand, provides that a person can appeal the denial of records by an agency, but the agency does not have the right to bring a court challenge to an OIP decision that records can be public.
The courts had to decide how to interpret these co-existing provisions.
Both the District Court and the ICA distinguished between this case, which specifically involves the issue of whether the executive session was properly called and whether its minutes could be disclosed, from matters involving other types of documents.
Because meetings and minutes were at the heart of this case, the courts held that the sunshine law and the specific right to seek a declaratory ruling in court apply. In the case of other types of records, however, the courts appeared to recognize OIP’s independent authority to make decisions binding on public agencies.
However, it appears that OIP is voluntarily giving up its enforcement power, citing what it called the lack of “specific guidance” from the ICA.
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Good point Ian- I didn’t really understand why OIP would suspend all opinions including strictly UIPA based ones- perhaps TGI’s Levine misunderstood and it’s only sunshine law related opinions.
At any rate the reason why may be is that at the heart of the ruling- at least as far as OIP was concerned- was whether an agency can sue OIP over a UIPA based opinion like a private citizen. Although the OIP brief before the SC concentrated on that and the fact that minutes- as opposed to the meeting itself- is a record request, the SC sidestepped the “no sue” provision of the UIPA and said the minutes were essentially a sunshine law matter because they arose from a meeting even though they are a record.
So for record requests that do not arise from a violation of the sunshine law it would seem that OIP is intact- although they would really have to go through the whole process to find out how the SC would respond to that because they didn’t really settle the matter of whether an agency can sue under UIPA.