The latest emergency proclamation by Gov. David Ige steps back from blanket suspensions of the state open meetings and open records laws that he had issued in mid-March in an effort to lessen the spread of the coronavirus.
News media and open government groups had raised strong objections to the blanket suspensions, arguing that they basically allowed a democratic government to make decisions without public observation or input.
The Honolulu Police Commission held two meetings without opportunity for the public to view or hear the proceedings, and also prohibited oral input.
Common Cause of Hawaii and the Civil Beat Law Center for the Public Interest worked with state attorneys to come up with the new language that appears at the end of the proclamation the governor issued Tuesday.
Ige said Wednesday that when imposing the blanket suspensions as part of his initial proclamation issued more than a month ago, his intent was to have boards and commissions not meet “except for very critical actions.”
Assessing the situation after his original blanket suspension of the Sunshine Law, it’s clear boards and commissions are using technological means to hold meetings from remote and separate locations, he said.
“We felt that it was very important for us to put those specific requirements in the emergency proclamation recognizing that we probably would have to live with this infectious disease parameters in our community probably through the end of the year,” Ige said.
Under the new proclamation, notice of any meetings needs to be posted electronically and any packet materials must be “posted as soon as practicable under current conditions.”
Standard quorum must be met in order for meetings to take place, the proclamation said. The panels also must accept public testimony and comply with requirements to keep and electronically post minutes.
As for public participation, the proclamation said boards must make an effort to provide the public with the means to at least view meetings and accept oral testimony. But they are required to provide the public with the opportunity to at least listen to proceedings as they occur.
The panels are also “encouraged to consider” making board members visual and/or audible to the public, conduct roll votes and, “when resources exist to readily do so,” record meetings and make them accessible to the public when practicable, the proclamation said.
In lifting the blanket suspension of the Uniform Information Practices Act, which requires government documents and other materials to be made public, the proclamation said the agencies must at least acknowledge receipt of a request for information.
“As resources permit,” the agencies must respond to UIPA requests that “do not require redaction or substantial review of records without substantial delay,” the order said. It also calls for requests from those whose chief priority is to disseminate information to the general public to take top priority.
UIPA requests not answered during the emergency relief period must be responded to “in a reasonable time” when the period is over, the proclamation said.
Jeffrey Portnoy, an attorney for the Honolulu Star- Advertiser, said the proclamation does not go far enough given modern technology. The new language is littered with “should try, if they can” language, he said. “We’re taking about 2020. You mean a board doesn’t have the staffing or the technology to hold a secure, video teleconference? The loopholes there are extraordinary.”
Portnoy said he found it ludicrous that the panels are not even required to record meetings in an audio manner, noting that both federal and state court proceedings are now visually accessible electronically.
R. Brian Black, president and executive director of the Civil Beat law center, said the changes made were those that he had been negotiating with state attorneys over the past several weeks.
“I think that it is a significant step in the right direction given the circumstances we have right now,” Black said. “And we’re going to need to continue to be vigilant as to how it’s implemented and whether or not agencies and boards embrace the intent and the spirit of the proclamation … I wish it could have been sooner.”