OIP’s director backs bills that would keep decision-making files under wraps

Two months after the Hawaii Supreme Court delivered a major win to advocates of open government records, the state agency tasked with promoting open and transparent government in Hawaii is trying to make an end run around the ruling.

The Office of Information Practices, led by Cheryl Kakazu Park, is pushing for legislation that would allow government agencies to cite a “deliberative process privilege” in denying record requests, the same privilege the Supreme Court ruled in December never existed in state law. The court’s majority opinion held the OIP had been erroneously allowing government agencies to deny access to public records based on this vague privilege for three decades.

State and county government agencies had been using the exemption to block access to a broad range of records, such as the proposed budgets of government agencies and documents that shed light on any parties involved in influencing environmental regulations.

Park is asking the Legislature to insert language into Hawaii’s public records law that would create a deliberative process privilege, which would again hinder public access to records relating to the decision-making processes of government agencies.

One measure, House Bill 1478, was shelved by the House Judiciary Committee on Thursday. A companion measure, SB 1453 could still be heard by the Senate. The bill seeks to repeal a Judiciary records exemption, but OIP is urging additional language be inserted into the measure that would create a deliberative process privilege for all government agencies.

Another bill introduced this legislative session that would establish a deliberative process privilege, Senate Bill 295, was introduced by Sen. Brian Taniguchi (D, Makiki-Tantalus-Manoa) at the “request of another party,” according to the measure.

Earlier this session, Taniguchi’s office wouldn’t tell the Honolulu Star-Advertiser who asked him to introduce the bill. Asked Thursday whether it was OIP, Park said it “wasn’t our bill.”

“No, we didn’t introduce that,” she said. Asked if she knew who did, Park said: “I don’t know. You should ask Brian Taniguchi.”

In a follow-up query by the Star-Advertiser, Taniguchi disclosed that Lorna Aratani, a staff attorney at OIP, had made a “personal” request to introduce the bill.

On Friday, Park acknowledged that she knew Aratani had requested the bill. “She on her own did it. I couldn’t stop her,” Park said. “She told me that she had done it, but I wasn’t about to say, ‘Well, why did you do that? You can’t do that.’ She has a First Amendment right to do that.”

The bill is likely dead for the session, but it will be carried over to next year.

Park said she thinks the Supreme Court intended the Legislature to address whether the decision-making processes of government agencies should have some sort of exemption from the state’s public records law. She said the proposed deliberative process privilege would include a balancing test to determine whether an agency’s need for confidentiality outweighed the public’s interest, though it doesn’t include any criteria.

“We are not shielding anything that wasn’t already shielded from disclosure long before the (states’ public records law) was adopted and since the first year of OIP’s opinions,” Park said. “I’m not changing anything. In fact, with this proposal, I’m making it more open by adopting the balancing test. (The critics) don’t understand that. They have this one-track mind that everything that I do is wrong. But when you actually look at what is being done, it is actually better.”

Brian Black, executive director of the Civil Beat Law Center for the Public Interest, who successfully argued the Supreme Court case that involved a Civil Beat request for budget documents, said he doesn’t understand Park’s argument that establishing a deliberative process privilege would increase access to public records.

“I have no idea how she comes to that conclusion. Introducing the deliberative process privilege into the law when it currently doesn’t exist is not increasing transparency,” Black said. “The deliberative process privilege has been described in congressional reports as the ‘withhold it because you want to’ exemption and that is the way it has been used consistently over the last 30 years after OIP incorrectly added it to the Hawaii law.”

Meanwhile, in handling public information requests that have been denied and appealed to OIP, the agency has so far declined to instruct government agencies to release records that were withheld based on the deliberative process privilege, even after the December ruling by the Supreme Court. OIP initially sent letters to the agencies giving them a deadline of Feb. 1 to cite any additional reasons why the records should be withheld. Park said that a couple of the agencies chose to release the records, while some requested extensions.

“Right now, to me, that is not a priority item because with the Legislature possibly looking at this area it could change everything again,” Park said. “So I think I want to wait until after the Legislature is over to see what comes of it.”

That reasoning doesn’t sit well with Maui attorney Lance Collins, who represents two parties who were denied public records based on the deliberative process privilege. The records requests date back to 2015.

“That’s totally inappropriate. That’s not her job. Her job is not to basically enact temporary legislation until the Legislature makes a final decision. Her job is to follow the law,” Collins said. “So it’s very unfortunate because it completely undermines the credibility of the Office of Information Practices when Cheryl Park gets to be a Legislature of one, to decide state policy on her own.”