The Office of Information Practices recently announced it had submitted two bills for inclusion in Governor Abercrombie’s administration package to be submitted to the 2012 legislative session. The text of the bills is not yet available, but OIP provided “detailed summaries.”
The first bill, referred to by OIP as the Appeals bill, is the agency’s response to the decision of the Intermediate Court of Appeals in the case of County of Kauai v. OIP, 120 Haw. 34, 200 P.3d 403 (2009).
In my view, the proposed bill addresses a problem which is not really a problem. I’ve written about this before on several occasions (here’s a link to what may be the most recent).
The underlying issue here was that the state’s open meeting law, known as the sunshine law, allows “any person” to request a court review. Either an agency or an aggrieved citizen can go to court. But the UIPA, our public records law, doesn’t extend the court option to government agencies. The Kauai case, although it involved a request for documents (minutes of a county council meeting held in confidential executive session), it revolved around a legal question of whether the executive session was proper, a sunshine law issue.
OIP takes the position that it undermined its authority under both laws, and proposes its Appeals bill as a remedy.
OIP seems to be the only source of this “woe is me” attitude. The court decision was driven by a very particular set of facts, a situation unlike most other disputes involving public records, and not one very likely to be repeated. As far as I know, there haven’t been any other agencies trying to creatively apply the Kauai decision to the broader range of typical document requests, as feared by OIP. There’s no avalanche of new agency appeals.
And OIP’s bill would not simply limit an agency’s appeal rights under the sunshine law, but clearly extend those rights to the OIPA, which seems to contradict the OIP’s expressed concerns.
In my view, this bill is unnecessary and potentially counterproductive. It addresses a problem which hasn’t proved to be a problem, and it’s driven by legal minutiae rather than a clear policy perspective.
I’ll take a look at OIP’s other proposal tomorrow.
Discover more from i L i n d
Subscribe to get the latest posts sent to your email.
While it is true that there is no express right by an agency to appeal a ruling by the OIP in an administrative appeal, the OIP has never exercised its power to hear and decide “appeals” because the OIP has never adopted the administrative rules ch. 92F, requires for OIP to conduct appeals. The OIP has created the “fiction” that its advisory opinions are “rulings” when they are not.