Hawaii’s Uniform Information Practices Act (UIPA) gives everyone the right to see government records unless an exception applies (e.g., privacy or trade secrets). For the first time in 35 years, there is serious discussion about creating a new legal basis for government agencies to keep documents secret. On Oct. 4, the public will have an opportunity to voice concerns. Please take a look, and share your thoughts.

We were on the working group that drafted this proposal. Although opposed to excessive government secrecy, we agreed that there may be room for a limited exception on public access to the raw thought process of government agencies before a decision is made.

The proposal is partially based on an exception to the federal public records law that does not exist under UIPA. That exception is called the deliberative process privilege. It protects internal government documents that are part of a decision-making process (deliberative) and prepared before the decision is made (pre-decisional). The federal exception assumes that government agencies will reach better decisions when not under a magnifying glass of scrutiny while trying to make a decision.

The federal exemption, however, goes too far, keeping government records secret for 25 years. It is considered the most abused federal public records exemption and has been referred to as the “withhold it because you want to” exemption.

The working group’s proposal strikes a balance. Agencies are given breathing room to reach a decision while keeping internal discussions secret from the public during the decision-making process. But once a decision is made or the agency abandons the issue, the discussions must be disclosed to the public — unless another exception to disclosure applies.

The proposed new UIPA exception is only temporary. After an agency makes a policy decision on behalf of the people of Hawaii, it must show us what it did to reach that decision — e.g., what recommendations were made, what alternatives were considered, why were alternatives rejected. By comparison, such information is not available for decades under the federal exemption.

This proposed new UIPA exception would not apply to a board or commission that must comply with Hawaii’s Sunshine Law. The Sunshine Law requires board meetings open to the public so that members of the public have an opportunity to not only watch, but also offer their own views as to how an issue should be decided. Unlike the internal deliberations of a government agency, the decision-making process for a board or commission does not work as intended if hidden from the public.

Lastly, the proposed new UIPA exception addresses a concern that some government employees might be unwilling to share their thoughts during internal agency discussions — for fear of ridicule or retaliation — if their names are publicly disclosed. However, these are not whistleblowers who need special protections; their recommendations directly influence the policies that govern our community. To balance these interests, the proposal would allow agencies to redact personal information that might identity employees if they did not make the final decision and do not have discretionary authority and there are no pending investigations or findings of disciplinary misconduct or criminal action.

Redacting names led to a lot of debate in the working group. Should there be further limitations on whose names get redacted? Should only name, position title and contact information be redacted (the proposal may require redaction of more in certain circumstances)? Are redactions even a good idea?

The working group that is studying these issues would benefit from hearing your thoughts on these questions and more. Is the proposed new UIPA exception to public disclosure necessary? Has the group struck an appropriate balance between the interests of efficient and effective government and the interests of the public in understanding how its government is working?

Learn more about the process that led to this proposal and how to provide comments to the working group at oip.hawaii.gov/scr-192-working-group. If you wish to offer comments orally, there’s a public meeting at noon Oct. 4; see the website above for more information.

R. Brian Black, left, is executive director of the Civil Beat Law Center for the Public Interest; Doug Meller is a retired urban planner for government agencies and a community advocate.