POSTED: 1:30 a.m. HST, Jul 22, 2011
LAST UPDATED: 2:23 p.m. HST, Aug 5, 2011
Its authority rejected by Gov. Neil Abercrombie, the state Office of Information Practices now is curtailing its past practice of ordering other state and county agencies to divulge information that should be made public. The state Legislature should make clear in its next session the OIP's authority in order to let the sunshine back in state government.
The crippling of the semi-autonomous agency was caused in February, when Abercrombie ignored a decision by Cathy Takase, then the OIP's acting director, that the governor "must release the names" of candidates offered for his consideration for associate justice to the Supreme Court. Abercrombie nominated Sabrina McKenna to the high court but has refused to divulge other names on the list sent to him by the Judicial Selection Commission. Previous governors made public the names on such lists.
In April, Abercrombie appointed as OIP director Cheryl Kakazu Park, who asserted that the governor had given her "a free hand to apply and administer the law." However, her office now has posted an unsigned announcement on its website that it "has temporarily suspended the issuance of determinations mandating disclosure and will provide only advisory opinions until it can obtain legislative clarification of its authority and its appeal rights and responsibilities during the 2012 session."
The law that created enforcement of the Sunshine Law is quite clear about its authority: "If the decision is to disclose, the Office of Information Practices shall notify the person (wanting disclosure) and the agency, and the agency shall make the record available."
The OIP posting, titled "The Raw Truth," points out that the state Supreme Court "bluntly noted" in 2007 that the office's decisions may be appealed to the state's court system. Two years later, the high court affirmed a ruling by the Intermediate Court of Appeals that the justice system has the last word, and that state agencies can appeal an OIP decision in court, and the decision can be overturned.
"The raw truth is that the law does not give OIP the power to enforce its rulings," the posting stated.
That's wrong-headed, defeatist thinking. If that were the case, then edicts by numerous other state and county boards and commissions also could be ignored because their actions can be challenged in court. Yet they still function with authority although they can be taken to court.
A weak OIP was not the intention of the Legislature when it created the office in 1988 in the spirit that "opening up the government processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest." In only a few months, that goal has been set aside, and OIP has reasoned "requestors alway have the right to sue a recalcitrant agency in court," citing the example of the Honolulu Star-Advertiser suing the Honolulu Police Department on Tuesday to release police 911 tape recordings. However, 80 percent of the requests to OIP come from non-media members of the public who lack the inclination or resources to file lawsuits for the public good.
In addition to clarifying the OIP's authority under the state's Sunshine Law and related statutes, legislators may need to look at alternative legislation to restore its effectiveness. That could mean changing the OIP to simulate other semi-autonomous agencies not totally controlled by a sitting governor, or moving the office to Judiciary control. Whatever the means, the goal should be to strengthen openness in government, not allow it to atrophy.