The state Office of Information Practices hopes a bill that would grant government agencies a new right to appeal open records decisions in court would give its orders more legal clout, yet open government advocates warn that it would delay public access to information.

Government agency appeals were not envisioned when the state’s open records law was passed 24 years ago. Lawmakers had wanted to give the OIP the authority to determine whether records should be publicly disclosed. The state’s open meetings law, by comparison, allows appeals.

A state Supreme Court ruling in 2009 held that Kauai County, under the state’s open meetings law, could appeal an OIP decision calling for the public disclosure of board minutes under the open records law, a gap that weakened OIP’s authority and the relevancy of the open records law.

The bill, which passed the state House and Senate on Tuesday and is headed to Gov. Neil Abercrombie, would give government agencies 30 days to appeal an OIP decision on open records. The judicial review would be limited to the factual record before the OIP and the standard would be whether the OIP’s decision was "palpably erroneous."

For many open government advocates, the bill would undermine the original intent of the open records law and erect new barriers for the public to access government records. "This gives them (government agencies) an escape hatch," said Beverly Ann Deepe Keever, a professor emeritus of communications at the University of Hawaii at Manoa.

Some advocates believe the OIP’s response to the Supreme Court ruling should have been to ask lawmakers to clearly prohibit government agency appeals under both the open records and open meetings laws.

Since OIP has no legal power to enforce its decisions, even after the OIP rules that a government record should be made public, individuals and news organizations have often had to go to court to compel government agencies to release the records. Granting government agencies the right to appeal OIP decisions could add another layer — and delay — before records can be released.

"This bill represents the greatest setback that we’ve had in the open records law since it was adopted," said state Sen. Les Ihara Jr. (D, Kaimuki-Palolo).

Cheryl Kakazu Park, the OIP director, described the reaction by open government advocates as "an emotional response, not a reasoned response."

"I don’t think you can ever keep the courts from finding a way to have the last word, realistically, because they’ve done it already," she said. "So the next best thing is to tell them how they’re going to interpret it."

Park said the bill would discourage government agencies from simply ignoring the OIP and waiting to argue in court, since the court’s review would be based on the factual record that was before OIP when it made the decision. The court would only allow additional evidence under extraordinary circumstances.

"They (government agencies) have to put their best foot forward with us, because that’s the record that’s going up on appeal," she said.

State Rep. Gilbert Keith-Agaran (D, Kahului-Paia), the chairman of the House Judiciary Committee, said that under the bill, government agencies that choose to appeal would have to do so within 30 days and have good reason for refusing to disclose records.

"The palpably erroneous standard basically says, if you appeal, you better be able to show that OIP was completely wrong in deciding that you need to disclose it," he said.

Jeff Portnoy, an attorney who has represented news organizations, is critical of giving government agencies the ability to appeal OIP decisions on open records. But he also acknowledges that the Supreme Court ruling left the OIP weakened.

"The reality has been, at least since the last decision of the Supreme Court, that OIP has no power anyway," he said. "They basically told the government they can ignore anything OIP said."