Gov. David Ige has suspended the state laws that require that government agencies meet in public and that government records be made public as part of the administration’s emergency response to the spread of COVID-19.
The House and Senate voted unanimously Monday to suspend this year’s session of the state Legislature indefinitely in response to the spread of the new coronavirus, and a short while later Ige told reporters he had signed a supplemental emergency proclamation that suspends provisions of the public-meetings law known as the state Sunshine Law.
Ige explained that new limits on public gatherings are being recommended to prevent the spread of the virus that will have an impact on how government conducts business, and the supplemental emergency proclamation was a response to that. The Centers for Disease Control and Prevention is urging the public to avoid gathering in groups of more than 50 people for the next eight weeks to limit the spread of COVID-19.
The Sunshine Law is designed to provide public access to government decision making. “However, during this health emergency as we are recommending actions to initiate social distancing, some of these provisions are just not workable,” Ige said of the law.
‘We want government to continue to work as much as possible during this time, but the Sunshine Law provisions makes it impossible,” he said. “The proclamation allows administrative hearings and public meetings to be conducted through remote technology and telecommunication tools.”
“All reasonable measures will be taken to ensure public participation that is consistent with the recommendations of social distancing practice as advised by the CDC,” Ige said told reporters. The idea is “to the extent necessary to enable boards to conduct business in person or through remote technology without holding meetings open to the public,” according to the proclamation.
Ige did not mention the suspension of the state public-records law, and no explanation was given in the emergency proclamation for suspending the records law.
Gerald Kato, an associate professor of journalism who teaches communications law at the University of Hawaii at Manoa, said the proclamation “seems a rather extreme way of trying to deal with the situation. It’s almost like a martial law kind of a tactic.”
He suggested the administration could have coped with any problems with the records law by using a more surgical approach.
“It seems rather a broad-brush way of trying to deal with a specific problem, and I fear that suspending the entire law like that, it opens to door to all kinds of potential abuse,” he said.
Krishna F. Jayaram, special assistant to Attorney General Clare Connors, said in a written statement, “As this is a global pandemic and a serious threat to the safety and welfare of our state’s population, 92F (requiring open records) was suspended to give government the maximum flexibility to focus its attention and personnel resources on directly addressing the immediate situation at hand.”
The statement added, “When the situation is stabilized and there is proper leeway to redirect those resources, the suspension of 92F will be lifted.”
R. Brian Black, president and executive director of The Civil Beat Law Center, described the supplemental emergency order as “excessive” as it applies to the Sunshine Law and open records.
Ige previously suspended the state Sunshine Law in his emergency proclamation on homelessness in order to expedite decision making to cope with that problem, Black said. The current proclamation is far more sweeping, and “we’ll have to see whether the boards and agencies continue to respect the value of transparency.”
“The emergency proclamation on its face seems excessive for what’s going on, but agencies can still do the right thing” by making themselves as open and accessible to the public as possible during the emergency, Black said.
Black said he has no idea why the Uniform Information Practices Act was suspended, since the governor’s proclamation gives no specific justification for that action. He speculated that perhaps someone in government is worried that complying with the public-records law and the deadlines it sets out to produce public records is too difficult during the COVID-19 crisis.
The proclamation expires May 15, but the governor has the power to extend it.