The state’s public records law continues to be partially suspended under Gov. David Ige’s latest emergency proclamation related to the coronavirus pandemic, allowing government agencies to delay the release of records if they are busy responding to the pandemic.
While the governor’s office says the continued suspension strikes the right balance between freedom of government information and ensuring the health of the community, advocates of government transparency say it creates another loophole for government agencies to deny access to public information and is difficult to justify as the pandemic wanes.
In the early days of the pandemic, Ige completely suspended the state’s public records and open meetings laws, sparking alarm among the media and open government groups who argued that during a pandemic the government should be more transparent, not less. Those concerns mounted as media organizations, and even the state auditor, struggled last year to get information about the state’s contact tracing efforts and other COVID-19-related responses.
Ige has gradually narrowed the restrictions. The current proclamation specifies that deadlines for responding to public records requests can only be suspended if tasking staff to gather and review records would directly impair the agency’s COVID response efforts, the request requires a review of hard copy files that aren’t readily accessible during the pandemic or if the agency is processing backlogged requests.
Cindy McMillan, a spokeswoman for the governor’s office, said the emergency provisions are necessary because most state agencies are still focused on the pandemic response and have received “overly broad” public records requests that require time to address.
“Those departments that can respond without impacting their pandemic efforts can and must do so under the proclamation,” McMillan said by email. “We are moving in the right direction, but limited agency resources still need to be focused on addressing the emergency. While producing records to the public remains a priority, it cannot come at the expense of these efforts.”
Government agencies throughout the country made adjustments to their pubic records laws early on in the pandemic to account for social distancing requirements and an increasing number of employees who were working from home. Much of the country has resumed normal activities in recent weeks as COVID vaccination rates have increased and case counts dropped, but it’s not clear how many of Hawaii’s government employees are back in their offices.
McMillan said that neither the governor’s office nor the Department of Human Resources Development had information on how many employees are still teleworking.
As for public records requests filed with the governor’s office, she said that 16 have been processed during the pandemic and 13 are pending.
It took a year for the governor’s office to turn over written and electronic communications that were requested by The Associated Press relating to the coronavirus response. Those documents showed that Sarah Park, the former state epidemiologist, spent weeks in the early days of the pandemic resisting suggestions and requests from both inside and outside the administration that she boost contact tracing efforts, according to an Associated Press story published on June 5.
The news agency filed the request in May 2020. Seven months later, the governor’s office said it would take an hour to search for the records and 11 hours to review them prior to release. Last month, the governor’s office finally turned over 1,655 pages of documents. But that was only a partial response, and the governor’s office estimated it would take another 600 hours to complete the request.
The volume of the records grew as the governor’s office delayed responding to the request, which sought records up to the date that the request was filled.
Jeff Portnoy, who specializes in First Amendment cases and has represented local media organizations, including the Star-Advertiser, said that the ongoing restrictions to the state’s public records law aren’t warranted.
“It’s widely recognized that Gov. Ige’s initial proclamation totally restricting access to public records and public meetings was, if not the most, one of the most anti-public access orders or proclamations issued by any governor in the United States,” said Portnoy. “And he has done little, in my view, to recognize the fact that it was a complete overreaction, and even 15 or 16 months later as we come out of this pandemic, he still is unwilling to illuminate additional excuses as to why the public will still be limited in its ability to access public records and public meetings.”
With a significant percentage of the population now vaccinated against COVID, and businesses and the economy opening back up, Portnoy said the continued suspension didn’t make sense.
It “is hard to understand his latest proclamation, which gives essentially carte blanche to any state agency that wants to play the COVID card,” said Portnoy.