Most people obtain all the government records that they seek under the Uniform Information Practices Act, HRS Chapter 92F (UIPA), Hawaii’s open records law. But for good reasons, even the Judiciary has opposed allowing public access to certain internal deliberations before final decisions are made because it would impair full and merit-based decision-making.

In opposing House Bill 1478 and Senate Bill 1453, the Judiciary testified that publicly disclosing its draft opinions and written communications between justices, law clerks, and others “could create a chilling effect that would substantially inhibit the flow of communication, and could adversely impact the very decision-making process that is imperative to well-conceived and appropriately vetted court opinions.”

Other testifiers explained that “[t]he courts would be less likely to freely and fully communicate with staff and other judges about issues in cases, because documents containing such information would then be accessible to parties and others in ongoing cases or for use in subsequent cases … . [P]arties would constantly seek access to pre-decisional documents in an effort to impact cases,” thereby disrupting case management, delaying resolution of litigation, and impairing merit-based decisions.

These reasons for not wanting the courts’ internal decision-making open to public access were the same reasons the Office of Information Practices (OIP) cited in recognizing the “deliberative process privilege” (DPP) that applied for nearly 30 years to the executive and legislative agencies’ decision-making functions. With significant limitations, the DPP allowed agencies to candidly discuss opinions and privately deliberate the merits before final decisions were publicly disclosed, thus encouraging well-conceived decisions and preventing undue efforts to cause delay and public confusion.

But in a recent case in which OIP was not a party and had not been asked to render a decision, a closely divided Hawaii Supreme Court (3-2) in Peer News LLC v. City and County of Honolulu found that OIP was wrong to recognize the DPP.

In a vigorous dissent, two justices interpreted the same law and legislative history to reach the opposite conclusion. The dissent (and the Circuit Court) might have prevailed, if the Supreme Court had been given key information showing that internal government records historically were not available to the public (see oip.hawaii.gov).

The dissent would have retained the DPP by adding a balancing test that weighs the government’s interest in confidentiality with the public’s interest in disclosure, which is a test that even the appellant had argued as an alternative position.

While recognizing that “[t]he dissent’s approach may well represent sound policy,” the three-justice majority rejected the DPP and decision-making as a function that could justify an exception from disclosure and stated “[t]he determination as to whether and to what extent deliberative documents should be shielded from disclosure must be made by the legislature and not by judicial fiat.”

When issued in December 2018, the majority’s opinion would have applied only to executive and legislative agencies’ decision-making because the UIPA’s definition of “agency” excluded court functions. By changing the definition, the proposed bills and majority’s opinion could have laid bare the court’s own internal deliberations.

OIP did its job to inform the Legislature of these opinions, advise against changing the “agency” definition, and suggest legislative changes incorporating the dissent’s balancing approach while providing express language to reasonably protect predecisional internal deliberations of the judicial, executive and legislative agencies so that all can make good decisions.

OIP will continue doing its job by applying the majority’s opinion and has already informed agencies that the DPP or decision-making can no longer be used to justify nondisclosure. Now, it’s up to the Legislature.