Accountability and transparency are key to a real-deal democratic governance. Citizens kept in the dark about the workings of government are deprived of information needed for valid public debate on matters of community concern and electoral choices.
There are exceptions in which secrecy is acceptable, such as in narrow instances involving personal privacy, pending litigation and public safety. Otherwise, in the absence of accountability and transparency, government is in danger of becoming arbitrary and self-serving while democracy’s will-of-the-people claim loses meaning.
It’s alarming — and somewhat ironic — that a recent push to add an unnecessary exception for secrecy to Hawaii’s public records law was championed by the state Office of Information Practices (OIP), which is tethered to a mission of “ensuring open government while protecting individual privacy.”
The OIP administers the Uniform Information Practices Act (UIPA). But a Hawaii Supreme Court decision, handed down in December, found that the office has stumbled in its handling of the public records law, enacted in 1988.
Specifically, the court’s majority, in a 3-2 ruling, dinged OIP’s practice of citing “deliberative process privilege” as a reason to withhold a government record from public view. State and county agencies had been using this tactic to block access to a broad range of records.
The case that went before the panel was prompted by a Civil Beat request in 2015 to see budget documents that had been submitted by city departments to Mayor Kirk Caldwell for his thumbs-up or thumbs-down. The request was denied, with OIP waving the deliberative process card.
Justice Richard Pollack wrote in the court’s majority opinion that this card falls short of the law’s threshold for granting secrecy, as this sort of exception — known as “frustrating a government function” — should be triggered only by a clear blocking of government from doing business.
Further, the opinion points out that a provision specifying deliberative process privilege has never existed in Hawaii law. Therefore, it’s a bogus reason to keep a record under wraps. That seems plain; and it’s puzzling that OIP would see it otherwise. But it has.
The office has asserted that while the UIPA includes no provision, there’s legislative intent. Over the past three decades OIP has stood by this fuzzy logic while arguing that a behind-closed doors deliberative process is needed for the sake of:
>> Encouraging frank discussion on policy among government subordinates and superiors;
>> Protecting against premature disclosure of proposed policies or decisions; and guarding against public confusion that might result from too-early disclosure.
It seems that OIP had allowed this exception as a means to setting a stage for government decision-
making that’s spared possible public criticism. But by supporting tidy-
but-secretive deliberation, OIP has undermined the public’s right to keep tabs on government actions.
Pollack wrote that Hawaii legislators who drafted the UIPA kept deliberative process out of the text because it would have closed off records that had historically been available to the public under prior state law.
Last week, Cheryl Kakazu Park, who heads OIP, asked state lawmakers to insert language into the UIPA that would officially create a deliberative process privilege. As of Wednesday, the measure targeted for OIP’s proposed amendment — House Bill 1478, and its companion, SB 1453 — had been shelved. Good.
For the sake of protecting our messy-yet-effective open government that insists on “of the people, by the people, for the people” standards, state lawmakers should reject OIP’s proposed amendment. It needlessly blurs the boundaries for accountability and transparency.
The OIP, which has put public information requests in question in a sort of limbo in the aftermath of the court ruling, should now reset its handling of the exceptions to comply with the law.
