Soon after taking office, President Barack Obama issued a memorandum to his administrators, reminding them that "a democracy requires accountability, and accountability requires transparency." Gov. Neil Abercrombie has not embraced that value, and the Star-Advertiser has no choice but to legally challenge his policy of curtailing the kind of information made public by previous governors.
Abercrombie has chosen to keep secret the list of candidates compiled for him by the state Judicial Selection Commission from whom he picks as his choice for circuit and higher state judges. He made that dark decision in January, deciding against releasing the list of state Supreme Court candidates, although Cathy Takase, then acting director of the Office of Information Practices, issued a letter criticizing the secrecy.
The new governor ultimately chose Sabrina McKenna for the high court slot, and she was confirmed by the state Senate, but other names on the commission’s list remain secret. A few weeks later, Abercrombie appointed Cheryl Kakazu Park to head the Office of Information Practices, replacing Takase. Park initially said Abercrombie had given her "a free hand to apply and administer the law," but unfortunately, later posted a declaration titled "The Raw Truth" confessing to a policy that "the law does not give OIP the power to enforce its rulings."
In response to the Star-Advertiser’s lawsuit filed Tuesday in state court to seek release of the names submitted alongside McKenna’s for the high court vacancy, Abercrombie spokeswoman Donalyn Dela Cruz said, "The governor firmly believes that public discourse is detrimental to attracting potential judicial applicants. His approach in making judicial appointments is to ensure the confidentiality of the applicants."
That approach, alas, is not in the public’s interest. And the issue is heightened since the judicial vacancies opening up during Abercrombie’s term will include two on Hawaii’s Supreme Court: the state’s mandatory retirement law at age 70 for state judges will affect Associate Justice James Duffy in June and Associate Justice Simeon Acoba in 2014. The decisions on two more of Hawaii’s five highest jurists should not be shrouded in secrecy.
Abercrombie’s approach conflicts with that of former Gov. Ben Cayetano, who made the names available following the confirmation of his choice, and former Gov. Linda Lingle, who revealed all the names forwarded by the commission, even before she made her choice among the group.
Abercrombie’s reasons for refusing to reveal the names of the commission’s candidates have been shot down in the past. Indeed, the state Supreme Court in 1993 noted that, "in our view, no stigma should attach to any judicial nominee not eventually appointed to office, inasmuch as all nominees are by definition deemed by the JSC to be qualified for appointment."
A decade later, the Office of Information Practices stated that "any argument that disclosure … would frustrate a legitimate government function by reducing or weakening the pool of qualified judicial candidates is not compelling and is rejected." Of course, those were in the days when the OIP was empowered to exercise authority to protect people’s right to government access.
The Star-Advertiser recently sued the Honolulu Police Department for refusing to release 911 dispatch tapes of a June 3 shooting spree that left a woman dead and two others wounded near Kaimuki and Kapahulu.
In neither city nor state governments can excuses be justified for withholding public records.
