It would be useful for some lawyers to chime in with answers to that question–what the heck does “palpably erroneous” mean in legal terms?
On the scale of legal standards, where does this one rank?
The question is important in assessing a pending bill to change Hawaii’s public records law to allow agencies to challenge opinions by the Office of Information Practices requiring public disclosure of government records.
Currently, agencies can go to court to challenge decisions applying the open meeting provisions of the sunshine law, but have no right to judicial appeals under the open records provisions.
The difference between the two laws, and differing interpretations of a Supreme Court case in which the two statutes overlapped, have been cited by OIP as sources of confusion and uncertainty.
SB 2858 was proposed by OIP to create a uniform process and was included in Governor Abercrombie’s legislative package.
While SB 2858 would allow agencies to file court challenges, they could prevail only if OIP’s opinion was found to be “palpably erroneous.”
This is apparently considered a very standard, but it isn’t defined in the bill, and I didn’t turn up a clear definition in a quick Google search this morning. The best answer came in these brief sentences buried in a longer legal commentary:
Referring to Black’s Law Dictionary, the court said palpable was defined as “easily perceptible, plain, obvious, readily visible, noticeable, patent, distinct, manifest.” It went on to observe that, “In A Dictionary of Modern Legal Usage, Second Edition, palpable is defined as ‘tangible, apparent.’”
The bill was amended in the Senate to add a 30-day deadline for agencies to file any challenges, and again in the House to further limit agency challenges arising outside that 30-day window.
It has now passed the House and Senate in amended forms, and is headed for conference. The House just appointed its conferees: Keith-Agaran, Har Co-Chairs; Tokioka, Riviere. Senate conferees have yet to be appointed.
So first, the question: Just how high is that “palpably erroneous” standard? If it is high enough, it would actually serve as a deterrent to agencies considering challenges to OIP.
Then, a suggestion: How about a penalty provision of some kind against agencies filing flimsy appeals primarily as delaying tactics to stall public disclosure? I think that’s one of the things proponents of openness fear will result from allowing agency challenges, and I’m sure there’s a way to address it.
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As to the standards of review applied by a court to OIP decisions, “palpably erroneous” is not widely used in case law, is a much higher standard than “de novo,” and, as you note, is not defined by the bill.
The “palpably erroneous” standard of review has been used in a handful of Hawaii cases on statutory interpretation and the more recent ones sometimes use it interchangeably with “plainly erroneous,” a standard typically applied to factual determinations, not legal ones like statutory interpretation. For this reason alone, a definition in the bill would be helpful.
It is also curious why OIP feels a need to establish a separate/new standard of review. The Hawaii Administrative Procedure Act, Chapter 91, HRS, already provides procedures and standards for judicial review of agency decisions. Specifically, standards of review may be found in Section 91-14(g), HRS. If those standards are not sufficient, then I would suggest an amendment of that section is in order, not an amendment in chapters 92 and 92F, HRS.
Whether the standard is “palpably” or “plainly” erroneous, it would statutorily enshrine the traditionally high degree of deference that courts give to an agency determination. Under this standard, in effect, a court says “were it the court’s responsibility to make the decision in the first instance, the court might have made a different determination. However, since the agency is charged specifically with enforcing this law, the court will give deference to its determination unless it is clearly, plainly, obviously wrong.” This deference is very roughly analagous to an appellate court’s deference to the fact-finder in the lower court (be it a judge or jury). Since appellate courts do not see, hear, and weigh the credibility of the witnesses, they are usually loathe to substitute their judgment for that of the fact-finder when it comes to deciding what the facts really are.
Palpably/clearly is a much higher standard than “de novo.” Under “de novo” review, the court doesn’t need to give any deference to the lower court’s legal determination. In effect, “de novo” review is a “do over” in which the court looks at the legal issue as if IT was the agency and freely substitutes its determination for that of the agency as if the agency had never made a decision in the first place.
I’m agnostic on the issue of whether an OIP decision upholding an agency decision should be subject to closer scrutiny than decisions overruling them. On the one hand, the presumption is, and should be, for disclosure and more notice to the public. However, there may be good reasons — or at least arguable ones on which reasonable people might differ — and I’m not sure, considering the issue in a vacuum, that one should be looked at differently. Notwithstanding the FOIA reference below, I’m not sure how federal law or other states’ laws approach this and I don’t think OIP’s testimony on the bill relies on either.
Finally, as to penalties, awarding attorneys’ fees to a party who prevails in challenging an agency decision could go a long way towards deterring arbitrary/capricious/frivolous agency actions. As was recently affirmed by the 9th Circuit in a Hawaii FOIA case (Yonemoto v. Dep’t of Veterans Affairs), 5 U.S.C. § 552(a)(4)(E) may be used by a court to “assess against the [government]reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.” Similar language could be added to chapters 92 and 92F, HRS, by the pending legislation, altho’ those funds would come out of OUR pockets, which may make such a provision not politically palatable to the — politicians.
Thank you. That’s very helpful.
You said, “How about a penalty provision of some kind against agencies filing flimsy appeals primarily as delaying tactics to stall public disclosure?” The Wikipedia discusses analogous “palpably unfair acts” in a sports context:
“In gridiron football, a palpably unfair act is a case of any illegal action that the officials of a sports game deem has clearly and indisputably deprived a team of a score. For example, if a player or other person not legally in the game at the start of a given play comes onto the field to tackle a player apparently en route to a touchdown, the team that would have scored is awarded the touchdown. This can also conceivably (explicitly in high-school rule books) be invoked in cases where the defense commits repeated intentional infractions very close to its own goal line (the half-the-distance rule making the consequence of such infractions otherwise infinitesimal).”
The Wikipedia provides additional examples of such palpably unfair acts to prevent the offense from scoring including “a member of the defense continually charging at the center prior to the snap in order to prevent the offense from snapping the ball”.