Don’t let agencies fight public’s right to records

Thanks to the Star-Advertiser for publishing Rep. Cynthia Thielen’s insightful commentary on Sunday ("Short-sighted bills endanger our government," Star-Advertiser, Island Voices, March 18).

That alarming article gave the public an inside peek at how the Legislature is lessening Hawaii’s longstanding environmental protections by exempting pricey government projects from the public environmental review process.

And, I’d like to add, environmental protections are not the only area where the public risk being cut out of the loop. Another even broader area is one that risks shortcircuiting the public’s access to all state and city/county records that the Legislature 24 years ago presumed — with specific exceptions — to be disclosed to Hawaii’s residents.

That risk of closing off public access is contained in a Senate-passed bill that this week is wending its way toward the House Finance Committee.

That committee should summarily kill this bill, Senate Bill 2858, as amended. Sponsored by Gov. Neil Abercrombie, the bill raises the frightening specter for Hawaii residents: One government attorney fighting another government attorney, with the taxpayer paying for both of them, while they unnecessarily clog up the already overburdened courts and while the public requester is still being denied records to which he or she is entitled under the law.

SB 2858 would eviscerate a unique feature of the open-records law: the Office of Information Practices (OIP). The Legislature declared that OIP was intended "to provide a place where the public can get assistance on records questions at no cost and within a reasonable amount of time." Establishing OIP in 1988 was so innovative that several other states have copied Hawaii’s model.

OIP’s opinions were declared to be binding on government agencies in order to perform this service for the public. The Legislature declared: "A government agency dissatisfied with an administrative ruling by OIP does not have the right to bring an action in Circuit Court to contest the OIP ruling. The legislative intent for expediency and uniformity in providing access to government records would be frustrated by agencies suing each other."

SB 2858 would reverse this longstanding legislative intent. The bill would permit a state or city/county agency to sprint to court when it was unwilling to release a record that OIP directed it to disclose to the public under the open-records law.

The court process outlined in the bill is complex and cumbersome and risks one taxpayer-funded government attorney contesting another government attorney. And the record-requesting member of the public who is unable or unwilling to hire his or her own attorney is shut out of the court proceeding.

In addition, SB 2858 is so carelessly crafted that it covers parts of another statute — Hawaii’s open-meetings law. In 1975, in the aftermath of the Watergate scandal, the Legislature passed this so-called Sunshine Law to declare that government meetings in Hawaii are to be open to the public. Later OIP was made responsible for administering this law.

Under this law, Hawaii’s Intermediate Court of Appeals held that OIP’s decision could be contested in court by any party, including a government entity.

To stave off future lawsuits and overcome uncertainty for OIP, the Legislature should simply state that OIP’s opinions rendered under the Sunshine Law cannot be contested in court by government entities, the same language it applied decades ago to government records.

Instead SB 2858 moves in the opposite direction. It should be killed. A new Legislature next year will hopefully address this issue in a way that protects the authority of OIP and safeguards the public interest.