POSTED: 01:30 a.m. HST, May 17, 2011
The unique integrity of the state agency charged with protecting public disclosure of government records has taken a blow by punting in face of opposition from the governor over disclosing the names of judicial nominees. The Office of Information Practices should honor its obligation to decide whether a request that records be open has merit, and say why or why not.
Gov. Neil Abercrombie has indicated that he will refuse to divulge the names of prospective judicial nominees regardless of any opinion of OIP. Cheryl Kakazu Park, OIP's director, explained in a letter to the Honolulu Star-Advertiser and Civil Beat that preparing an advisory opinion would be "futile." If extended across the breadth of state government, such a policy would put Hawaii's Sunshine Law under a deep cloud.
Abercrombie has refused from the outset of his administration to reveal the names of candidates put forth by the Judicial Selection Commission for his consideration for judgeships. His office has insisted that disclosure of those names would have "a chilling effect of potential nominees knowing that his or her application may be disclosed."
The OIP issued an opinion in 2003 rejecting the argument that revealing nominees' names would reduce or weaken the pool of qualified judicial candidates. The state Supreme Court noted in a 1993 ruling that "in our view, no stigma should attach to any judicial nominee not eventually appointed to office," since the Judicial Selection Commission had found its nominees to be qualified.
In February, Cathy Takase, then acting director of OIP, told the Star-Advertiser that the governor "must release the names under the law" after his choice of Sabrina McKenna to the Supreme Court was confirmed by the state Senate. Takase's letter was not a formal opinion of OIP. In April, Abercrombie appointed Park to OIP's top spot after naming another attorney to an OIP staff job, essentially blocking Takase out of a job to which she otherwise would have returned.
Hawaii's Sunshine Law states that OIP "shall, upon request, review and rule on an agency denial of access to information or records." Park maintained that her office's "longstanding policy and practice" has been "to defer to the courts when an issue pending before OIP is also within the scope of a related litigation." Though acknowledging that no lawsuit has been filed on the issue, Park wrote in her letter that "court action is necessary to resolve this specific dispute."
Under such a policy, virtually any attempt by someone to challenge an agency's decision to keep records secret could be snubbed by OIP without hearings and be forced to launch a court challenge. Ordinarily, if need be, an OIP opinion is appealed to the courts, which is how the system has operated since its creation in 1988.
If this is Park's new policy, it seems to consist of avoiding advisory opinions in situations where the agency refusing to reveal records will open them only by court order. Further, in this case, it also surrenders OIP's integrity in deference to the governor's perspective. In addition to rendering OIP inconsequential, Park's action telegraphs the message that any person wanting to open the state's books should be prepared for expensive legal bills.