The chairs of the House and Senate Judiciary Committees each submitted comments for their respective Journals explaining the intent of Senate Bill 2858, which passed final reading on May 1 and is now awaiting the governor’s signature.
In his comments, Rep. Gil Keith-Agaran spelled out why he supported passage of the measure, which sets requirements for agency appeals of decision by the Office of Information Practices.
The conference draft allows agencies to judicially challenge OIP’s decisions, but requires agencies to timely appeal within 30 days and does not require OIP or the person who requested the decision to appear in court as parties to the appeal. While the bill now gives agencies the right to judicially challenge OIP’s decisions, it also sets a strong standard of review that would accord a presumption of validity and require the courts’ deference to OIP’s factual and legal determinations concerning the administration and interpretation of the UIPA and Sunshine Law, unless such determinations are “palpably erroneous” and result in a definite and firm conviction that a mistake has been made. See e.g., Right to Know Committee v. City Council, 117 Haw. 1, 175 P.3d 111 (2007); Aio v. Hamada, 66 Haw. 401, 664 P.2d 727 (1983). The bill further clarifies that the de novo standard of review referenced in HRS Sec. 92F-15(b) applies only to judicial appeals brought by the general public, and that agencies’ appeals are instead subject to the higher “palpably erroneous” standard. The bill does not affect the standard to be applied by the courts in reviewing OIP decisions with respect to constitutional issues or other matters beyond OIP’s sphere of expertise regarding the UIPA and Sunshine Law.
As is typical in appeals from administrative decisions, this bill limits the record in an agency appeal to what was presented to OIP when it rendered its decision, thus requiring an agency to present its best case to OIP and not rely upon having a second chance to present new evidence in a judicial appeal. Only in extraordinary circumstances would the circuit court allow discovery and admission of additional evidence during an appeal from an OIP decision.
A key provision is that if an agency fails to timely appeal within 30 days from an OIP decision mandating disclosure of a record under the UIPA, then such agency will not be able to challenge the decision if the citizen requesting the record is forced to bring an action to compel disclosure. This provision thus encourages agencies to take timely action, and it discourages agencies from simply ignoring an OIP decision and indefinitely refusing to disclose a record that OIP has determined should be disclosed under the UIPA.
Finally, this bill does not affect the general public’s existing right to bring appeals or to recover reasonable attorney fees and costs as prevailing parties in actions brought under either the UIPA or the Sunshine Law.
These comments were largely echoed by Sen. Clayton Hee. Both comments are posted on the OIP web site.
In further comments posted on its web site, OIP argued that seeking final authority without the possibility of court review would have likely required OIP to adopt cumbersome “contested case” procedures, and increased its administrative costs and staff needs beyond any realistic funding level.
Media and “good government” groups had rallied around a former journalism professor’s opposition to the bill on the basis that when the UIPA was written 24 years ago, it clearly was not intended to allow agencies to appeal from OIP’s decisions mandating the disclosure of records. OIP agrees that the UIPA was not originally intended to allow agency appeals, and indeed, OIP vigorously advocated that very same argument, which the courts rejected in a 2009 Intermediate Court of Appeals’ decision that the Hawaii Supreme Court affirmed. Even if the Legislature acted, as opponents urged, to overturn the courts’ ruling and made it even clearer that agency appeals were not allowed, these opponents fail to realistically acknowledge that, at the same time, the Legislature undoubtedly would have imposed severe limitations to counterbalance the absolute power that opponents sought for OIP and would have instead required OIP to follow something similar to judicial or contested case procedures.
Given the State’s shaky fiscal condition, it is also questionable whether such additional procedural restrictions would have been accompanied by the substantial and ongoing increase in government funding that OIP would have needed for more staff and resources. Moreover, by turning OIP into a nonreviewable body that would nevertheless be subject to litigious, time-consuming, and complicated contested case procedures, OIP could no longer be a free, expeditious, and simple alternative to the courts that also provides training and advice in response to over 800 annual inquiries from agencies and the public. Fortunately, the Legislature instead decided upon a balanced and reasonable solution that allows OIP to continue its work to informally, impartially, and expeditiously resolve disputes between the public and agencies, without the need for agencies or the public to retain expensive legal representation in lengthy and complex quasi-judicial proceedings.
I appreciate the comments by Rep. Keith-Agaron and Sen. Hee, and certainly have to say that their position is not at all unreasonable. I hope other sunshine advocates can take a step back and see the benefits of this legislation.
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What would happens if the agency doesn’t appeal and does not give the records? Who takes the agency to court? The OIP, the requester? Nothing is just auotmatic. Seems as if there are more questions than answers. At least before, as soon as an opinion stated to release, the next day if the documents weren’t provided, the requester could go to court. Now the requester has to wait another 30 days!! The OIP should concentrate on doing their jobs rather than lobbying, I saw the Director at the legislature almost daily. Yeah a new day, sounds like a bad day.
I don’t know if the agency’s 30-day window to appeal would block a requester from going to court right away. After all, the requester is entitled to a “de novo” review by the court, while the agency would have to appeal based on the record it built when the matter was at OIP.
I don’t think that this year’s bill amended Section 92F-15, except to provide that if an agency doesn’t appeal within the 30 day window, then it cannot challenge the OIP opinion, which will be precedent unless “palpably erroneous.”
So I don’t see any requirement in the bill for a requester to wait for the agency appeal period to expire, although it would seem to be in the requester’s interest to wait.
While it is good, I suppose, for subject committee chairs to comment after the fact, I do not concur.
As one who has since 1967 fought without apology for openness in Hawaii, I find the whole procedure a delaying tactic. The pubic is not served by delay, never is.
The OIP was an outgrowth of the Watergate period but was not perfect and it has been politicized by recent governors, especially the current one and his predecessor.
If we want reform, make the OPI counsel immune to political pressure. Give her/him a 10-year term much like the truly independent state legislative auditor Higa. I submit she has more pubic confidence and respect than possibly any state employee.
Even better let Sunshine in on the state legislature!
Hi Ian,
To be fair, please post–and ask OIP to post–the powerful arguments against SB2858 made by Reps. Barbara Marumoto and Cynthia Thielen on the House floor that will also be republished in the House Journal. I was in the gallery and heard those cogent reasons that the cumbersome judicial process outlined by the two Judiciary chairs is unnecessary and unwise. If any comments in opposition were made on the Senate side, which was occurring at the same time as the House debate, please post those also. After all 15 Senators out of 25 voted either against the bill or with reservations–and those numbers included both Republicans and Democrats. I’ll look forward to reading these comments on your web site and the OIP one. Thanks. Bev Keever
OVERLY BROAD SB 2858 NEEDLESSLY WEAKENS HAWAII’S FREEDOM OF INFORMATION LAW
This administration-initiated bill sets up a judicial appeal process for decisions made by the Office of Information Practices (OIP), allowing government agencies to challenge decisions on the Sunshine Law (“public meetings, H.R.S. Chapter 92) as well as the Uniform Information Practices Act (“UIPA” or “public records,” law also called Hawaii’s Freedom of Information Law or FOIA, Chapter 92F.)
OIP was established in 1988 to use an informal dispute resolution process to help citizens gain access to government records, thus staving off costly lawsuits (Chapter 92F). A decade later, OIP was made responsible for also administering the “public meetings” law (Chapter 92).
OIP advocated for S.B. 2858 to make the appeals process for both laws uniform, although the need for uniformity was not discussed nor justified.
The Legislature had two less drastic alternatives it could have passed instead of the overly broad SB 2858 that sets up the cumbersome judicial process detailed above by the Judiciary Committee chairmen above.
One alternative was to restrict the cumbersome appeals process to ONLY the Sunshine Law. It had been ruled on in the several court cases that gave rise to S.B. 2858.
This alternative would have left untouched the clear legislative intent of the “public records” law (Chapter 92F) that an agency cannot go to court to contest an OIP opinion that mandates public disclosure of its requested record.
In a last-minute petition, this alternative was advocated in a letter to legislators by 18 community and media organizations and 28 citizens.
Leaving the “public records” law (Chapter 92F) out of this judicial process would have left intact a key provision in the legislative history of that law.
That key provision stated: “…a government agency dissatisfied with an administrative ruling by OIP does not have the right to bring an action in circuit court to contest the OIP ruling. The legislative intent for expediency and uniformity in providing access to government records would be frustrated by agencies suing each other.”
The open-government groups argued that including the “public records” law in this cumbersome court process would unnecessarily and unwisely weaken OIP’s powers, waste limited resources of OIP and other agencies, and make it even more difficult for citizens to obtain government records in a timely manner.
The Legislature rejected this alternative advocated by the open-government groups. Now the clear-sighted legislative intent and informal dispute resolution process that had stood the test of time for 24 years have been swept away by the cumbersome judicial appeals process that the two Judiciary Committee chairmen detail above.
In contrast, the Sunshine Law, enacted in 1975, specifies that “any person” alleging a violation of that law can bring a lawsuit in circuit court. In an important case described by the two Judiciary Committee chairmen, Hawaii’s Intermediate Court of Appeals (ICA) held that “any person” could include a public agency, thus paving the way for OIP to be sued under the Sunshine Law (Chapter 92) by a dissatisfied legislative or executive-branch board.
Thus, a second alternative the Legislature could have adopted would have been a 16-word amendment to the Sunshine Law (Chapter 92) to provide it with the same protection against agency lawsuits that the public records law enjoyed under Chapter 92F.
The important court case mentioned above arose when the Kauai County Council posted a Sunshine Law agenda and held on Jan. 20, 2005 a closed-door meeting to discuss whether it should investigate unethical activity of the police department.
The Kauai Police Commission Chairman filed a complaint with OIP first about the agenda and then whether the closed-door meeting was proper and then to get copies of the minutes of the closed-door meeting. OIP relied on the “public records” law (Chapter 92F) and directed the minutes to be redacted and made public.
The Kauai Council countered that it had acted properly under the Sunshine Law (Chapter 92) and that it had a right to sue under that Law. OIP countered that it could not be sued and relied on the “public records” law (Chapter 92F).
But OIP erred by relying on the “public records” law (Chapter 92F) to argue that it could not be sued, the Intermediate Court of Appeals (ICA) held.
Instead OIP should have been relying on the more specific language of the Sunshine Law in which “any person,” including the Kauai Council, could initiate a lawsuit, the ICA held in 2009 in its decision that was subsequently affirmed by the Hawaii Supreme Court.
Th ICA decision left untouched the key provision of the “public records” law that OIP could not be sued by an agency that refused to adhere to OIP’s demand to make public its requested record.
Thus, as the open-government groups and citizens argue, SB 2858 unnecessarily and unwisely swept away the 24-year-old provision in the “public records” law barring agency lawsuits against OIP that had maintained legislative clarity and staved off lawsuits.
Instead passage of SB 2858 risks—even invites—lawsuits in an already overburdened court system.
The second case discussed by the Judiciary Chairmen above also involves a Sunshine Law violation alleged in a lawsuit filed by eight community and news media organizations against the Honolulu City Council involving serial communications. In that suit, the “public records” law isn’t mentioned at all and OIP was only belatedly involved (Right to Know Committee v. City Council, City and County of Honolulu; I was then head of the Right to Know Committee).
The third case mentioned by the Judiciary Committee Chairmen above discusses the “palpable erroneous” standard of review and was decided in 1983, five years before the “public records” law was even enacted and OIP was established (Aio v. Hamada).
In short, these three court cases fail to provide an urgency or need to erode the 24-year-old legislative intent of the “public records” law (Chapter 92F) barring agency lawsuits, thus weakening Hawaii’s public records law and substituting such a convoluted judicial review process described by the Judiciary Committee chairmen above.
The overly broad SB 2858 needlessly and unwisely risks delaying access to a government record which a member of the public requested and to which he or she is entitled under the law in a reasonable amount of time. Mahalo. Beverly Keever