There’s particular, sad irony in the passage of one bill by state lawmakers last week, Senate Bill 2858. If it’s enacted and takes effect Jan. 1, the measure will continue a reversal of the groundbreaking work done by their predecessors nearly 25 years earlier on the issue of public records and open government.
It was this work — passing the Uniform Information Practices Act, including creation of the Office of Information Practices (OIP) — that made Hawaii’s law a model that other states followed. No longer the vanguard, Hawaii now seems to be marching toward the back ranks.
The state is being prodded in part by SB 2858, which establishes a procedure for agencies to contest an OIP ruling in court. When somebody seeks a record from a state government office or challenges an agency on the way it conducts meetings and provides notice, the OIP often is consulted for a legal ruling on how to proceed. Considering that OIP was put in place to help average people who lack legal resources gain access to government and its records, the creation of a court appeals process for the agency is not a promising development.
Nor is it what the Legislature originally intended. Hawaii’s public-records law has provisions for the petitioner — the member of the public who wants a record or is seeking access — to appeal to the courts if the OIP ruling doesn’t go his way.
But the agency being petitioned was never meant to have this option — OIP’s ruling was supposed to be the official interpretation of the state’s records law.
A conference committee report from 1989 makes that intent clear, expressing the panel’s wish "to emphasize that while a person has a right to bring a civil action in Circuit Court to appeal denial of access to a government record, a government agency dissatisfied with an administrative ruling by the 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 report said.
What happened to that concern about expediency here?
The defense posed both by the OIP and by numerous government agencies this session is that the bar against frivolous appeals is set sufficiently high.
Agencies would have 30 days after a ruling to appeal, and would have to show that the OIP’s decision was "palpably erroneous" — a term that is undefined but seems to mark a high standard of review. Further, that review would be limited to the record before the OIP when it made its decision.
But the overarching concern should be the effect of such a law on the public. And with the threat of legal challenges hanging over every ruling against state agencies, the justifiable worry is that OIP will take even longer reviewing administrative challenges of public requests than they do now. Public access to government will become the casualty.
The legislation was prodded in part by a 2009 ruling by the Intermediate Court of Appeals, which later was affirmed by the Supreme Court, on a dispute over access to records. Kauai County could appeal an OIP decision calling for the release of minutes, the court ruled.
This effectively weakened OIP, but SB 2858 was not inevitable as the second half of a one-two punch. Instead, the legislative intent hidden away in a committee report could have been codified into law, ensuring that the information agency would become the authority on the public records law that it was meant to be.
Unfortunately, the state administration seems headed in the opposite direction.
