There’s been a lot of comment on OIP’s public statement, “The Raw Truth,” posted on the agency’s web site in response to a pair of critical columns by Civil Beat editor, John Temple (link to Temple’s first column, and second column).

OIP, in defense of its record, points to two court decisions which it says undermined the agencies authority.

Unlike a court, OIP has never been given authority under the law to subpoena records or witnesses, to issue injunctions, to compel an agency to follow its ruling, or to fine a recalcitrant agency for contempt. As the Hawaii Supreme Court bluntly noted, the “UIPA does not provide OIP with enforcement powers to compel an agency to make government records available or to itself seek court assistance to compel disclosure.” `Olelo v. Office of Inform. Practices, 116 Haw. 337, 346 n.2 (2007). The Hawaii Supreme Court has also rejected OIP’s vigorous arguments that its determinations mandating disclosure are binding upon agencies under H.R.S. Section 92F-27.5(b) and that the UIPA does not permit government agencies to appeal OIP’s decisions in light of the explicit legislative intent in the original conference committee report stating that agencies should not be suing agencies. Instead, after two years of appeals, the Hawaii Supreme Court summarily affirmed the Intermediate Court of Appeals’ decision in County of Kauai v. OIP, 120 Haw. 34, 200 P.3d 403 (2009), which allowed an agency to sue OIP under the Sunshine Law and overturned a determination that OIP had made under the UIPA.

But it seems to me that OIP is overstating the impact of those cases, and as a result voluntarily stepping back from its role of assisting the public in accessing government information.

Take the Hawaii Supreme Court’s decision in first case, “Olelo v. Office of Information Practices.”

The important question for OIP was whether the courts should defer to its authority to determine all issues relating to disclosure of public records. The Supreme Court said, “Yes, but….”

Here’s a summary from Ben Lowenthal’s blog, Hawaii Legal News.

The HSC examined HRS Ch. 92F, which lays out the duties and purposes of the OIP, and summarized its powers to include (1) providing guidance to the public and agencies as to when records should be available; (2) monitor agency compliance w/ the UIPA; and (3) adopt rules for the disclosure of records. Thus, “a matter balancing the public’s interest in open gov’t records against an individual’s right to privacy under article I section 6 and section 7 of the Hawai’i Constitution is w/in OIP’s designated area of expertise.” The “threshold issues” like the definition of “agency” and “gov’t records” are not. These terms are defined by the Legislature. The OIP’s application of these terms are not w/in its designated area of expertise warranting de novo review.

In deciding that threshold issue, the court found Olelo is not a state agency subject to the Uniform Information Practices Act and, therefore, not subject to OIP’s ruling. That isn’t a decision that undercuts OIP in dealing with other state agencies.

The second case, “County of Kauai v OIP,” was decided by the Intermediate Court of Appeals.

OIP interprets this case as a green light for any agency to go to court if it disagrees with OIP’s determination that a particular record must be publicly disclosed.

But once again, OIP’s sweeping conclusion goes far beyond the actual court decision.

The court made clear that this case involves a particular type of record–minutes of an executive session–that can be distinguished from most other types of government records.

In fact, the Supreme Court specifically distinguished this case, involving minutes, from an earlier Supreme Court decision upholding OIP’s determination involving a different type of record (Kaapu v. Aloha Tower Development Corp, 1993). The case involve both Sunshine Law and UIPA claims, but the question of whether the documents were public was considered under the provisions of the UIPA.
In Kaapu, OIP had determined that development proposals being considered by an agency could be kept confidential until a final choice of developer was made, and the court held that this approach applying the UIPA was correct.

In the County of Kauai case, the court was careful to distinguish the issues from those considered in Kaapu.

OIP cites to Kaapu v. Aloha Tower Development Corp., 74 Haw. 365, 846 P.2d 882 (1993), in support of its argument. However, Kaapu is inapplicable to this case because the records at issue in Kaapu were not board meeting minutes, but development proposals submitted by potential developers to a state agency. Id. at 369 & 375, 846 P.2d at 884 & 886. The distinction is relevant because, as we have already discussed, board meeting minutes are specifically covered by HRS Chapter 92, whereas development proposals, such as the ones at issue in Kaapu, are not.

So I end up agreeing with John Temple, who penned his own reply to OIP’s “raw truth.”

It seems to me that even if OIP lacks the legal firepower to compel Gov. Abercrombie to disclose the names of nominees for judicial appointment, it has a legal bully pulpit to bring its compelling case for disclosure to the public as often and as loudly as possible. It needs to educate the public, but more importantly, public officials up and down the line, of the issues at play. And it can move directly to adopt rules governing appeals from agency denials, something it has never gotten around to and which, according to some legal opinions, is a stumbling block to its attempts to assert its authority in those cases.

So it seems to me that OIP’s handwringing is unjustified, and its plan to punt back to the Legislature reflects an unnecessarily defensive posture.