The Star-Advertiser today reports: “OIP punts on judge list ruling.”
That’s right. The new director of the Office of Information Practices says they will not issue a new opinion on Governor Neil Abercrombie’s refusal to release the names of nominees for the recent opening on the Hawaii Supreme Court.
In an email to the Honolulu Star-Advertiser and the online news service Civil Beat, Cheryl Kakazu Park, director of the office, said issuing an advisory opinion would be “futile” because “court action is necessary to resolve this specific dispute.”
A couple of things need to be said here.
First, let’s be clear. The new director says an advisory opinion would be “futile.” In plain language, she’s saying that the governor, contrary to law, is going to ignore OIP until and unless faced with a court order, plain and simple.
I’m sorry. I support Neil, I voted for him, and I like him. But this is essentially a governor’s office thumbing its nose at the law. Neil, you were elected governor. Not King.
But there’s another aspect here. In Section 92F-42, which sets out the powers and responsibilities of OIP, this is right there at the top of the list. Responsibility #1. Top of the list.
The director of the office of information practices:
(1) Shall, upon request, review and rule on an agency denial of access to information or records, or an agency’s granting of access;
I added the bold type on the word “shall.” OIP shall rule on an agency’s denial of access. It doesn’t use the word “may,” which would have given OIP discretion on whether to issue a ruling. It doesn’t say that OIP shall rule except when it looks futile because an agency stubbornly insists that it has the right to do whatever it wants. It says, simply, OIP shall do this job. It’s #1 responsibility. Top of the list, top line priority.
Someone needs to go back to OIP and ask what legal authority they have to “punt” in this case, given what appears to be clear statutory language.
Discover more from i L i n d
Subscribe to get the latest posts sent to your email.
If you read the letter itself it refers to Kaua`i County v OIP – our infamous ES-177 case which Les Kondo fought all the way to the HISC and lost. To be brief, OIP said that they had the authority to decide the issue and did, Kaua`i County didn’t like the opinion and sued. OIP maintained that a government entity couldn’t another over an OIP opinion. The SC ruling essentially made OIP into a toothless tiger and now their opinions are purely advisory. It’s a lot more complicated than that but it would take pages to explain fully. Search ES-177 at my site for more in depth.
OIP never adopted rules to govern appeals so it has issued advisory opinions which the court could give deference. But the law saws that if OIP “rules” against the agency the agency “shall” disclose. There is mo express right for an agency to appeal an adverse ruling. At very least OIP did not have to punt on this–very clear what happened here
I am not a lawyer, but I did not see anything that indicated that the OIP had refuted or rescinded the previously issued opinion.
My interpretation is that the Director of OIP’s statement meant that enforcement of the opinion will require a court order since the Governor’s staff has said that he will not follow the OIP opinion.
I totally agree with you; besides, consider the entertainment value of watching Deputy Attorney General Aina explaining to a sitting judge how the quality of applicants has been so poor over the past decade or so due to disclosure . . .
Heh. On a more serious note, might any judge feel the need to recuse him/her-self from ruling on this case?
Sort of, but not exactly, like all the Honolulu federal judges taking themselves off of the latest rail lawsuit because they are players in the dispute.
§92F-15.5 Alternative method to appeal a denial of access. (a) When an agency denies a person access to a government record, the person may appeal the denial to the office of information practices in accordance with rules adopted pursuant to section 92F-42(12). A decision to appeal to the office of information practices for review of the agency denial shall not prejudice the person’s right to appeal to the circuit court after a decision is made by the office of information practices.
(b) If the decision is to disclose, the office of information practices shall notify the person and the agency, and the agency shall make the record available. If the denial of access is upheld, in whole or in part, the office of information practices shall, in writing, notify the person of the decision, the reasons for the decision, and the right to bring a judicial action under section 92F-15(a). [L 1989, c 192, §1]
As you can see, this does not provide the agency with an appeal if the agency loses the appeal, but it does allow the requester to appeal to court. The problem is that OIP never adopted admin rules under 92F-42 to begin hearing “appeals” Les Kondo pretended that OIP’s advisory opinion power was some type of “appeal” ruling when the were not.
92F-42 provides that the OIP
(12) Shall adopt rules that set forth an administrative appeals structure which provides for:
(A) Agency procedures for processing records requests;
(B) A direct appeal from the division maintaining the record; and
(C) Time limits for action by agencies;
Cannot understand how Governor’s office can say that their ousting the previous interim OIP director had nothing to do with her issued opinion on this matter in light of the fact that someone was hired to fill her permanent position in the office so she couldn’t fall back into it when her “acting” promotion ended. Sounds kinda vindictive to me.
Ian, hopefully someone will petition for a writ of mandamus against OIP, essentially a law suit seeking an order requiring them to do what the law requires them to do: make a decision.
Doug- the problem is that the law foresees only “persons” who are denied documents being able to appeal OIP rulings to the courts. It does not foresee inter-agency squabbles going to court as Kaua`i County did in sueing OIP. And by allowing the document to remain secret on the merits of the case itself, the SC de facto ruled that agencies CAN go to circuit court to appeal an OIP opinion. Clear as mud?
To muddy this further…As I recall, the SC decision rested on the difference between a request related to the sunshine law, where that agency appeal is allowed, and under the UIPA, where it isn’t. And the court sorted the facts of the case out in a way that the sunshine law provisions applied. Hence the challenge was deemed ok. At least that’s what I recall, in very abbreviated form, from my last look at that decision some months back.
I have no idea what is the legal premise for this inaction but isn’t there some discretion granted? I mean, the prosecutor’s office doesn’t indict everyone who’s been arrested, right?
Today’s editorial in the Star-Advertiser clarifies that the OIP never issued a formal opinion on the issue, contrary to my earlier post.
What is not clear is whether an individual made a formal request to the OIP for an opinion because they had been denied access to the records by the Governor’s office. If so, it would seem that OIP has to issue a formal opinion on whether the records should be made available.