Clouding Up The Sunshine Law

The legislative process is gearing up for a big finish as hundreds of bills made it by the crossover deadline between the two chambers. The trick at this point of the process is to figure out if your group’s interest survived. As it turns out, the taxpayers did relatively well until SB2858 muddied the waters a little.

The bill is a proposal related to open government – more specifically, a state agency’s right to appeal a decision by the Office of Information Practices (OIP). The state of Hawaii has a hard-earned reputation for openness, fairness and transparency in its dealings with the public.

This a tough topic to discuss. You will recall that the governor summarily dismissed the former head of OIP when she did not rule the way the governor’s administration wanted her to. The idea of openness in government has been protected by the “Sunshine Law” for more than 20 years. It’s a simple law designed to stop any part of the executive branch and its many agencies from hiding what they are doing from both the Legislature and the public – actions such as the issuance of executive orders or the dismissal of staff or the whereabouts of our governor on a daily basis.

This law is the savior from media that have a duty to inform the public, and it allows them to be thwarted in their efforts to know what their own government is doing.

Simply put, SB2858 would allow state agencies to delay the release of publicly requested records under the Uniform Information Practice Act and make it more difficult for the public to ensure agencies meet the Sunshine Law requirements. This is because the law would now allow agencies to challenge an OIP decision in the courts. According to the UH law school, which did an analysis of Chapter 92 of the Hawaii Revised Statues, it was the intent of the law to not permit OIP decisions to be adjudicated and to clearly promote promptness and uniformity in the manner in which such requests for information were handled. This differs from other areas of the law (like those handled in appeals courts by, for instance), and has its own nuance and care to be taken with it.

This means that opinions and rulings of the OIP shall be admissible in an action brought under this new part of the law and shall be considered as precedent unless found to be palpably erroneous. Which means anything readily or plainly seen, heard, perceived, obvious, evident; a palpable lie; palpable absurdity, capable of being touched or felt; tangible.

So an individual may bring a civil action against an agency in a circuit court of the state whenever an agency fails to comply with any provision of the law. The upside of this new law will give agencies the right to challenge an OIP opinion and provides a uniform process for doing so.

One agency bringing a suit against another agency is possible. The good news is that this bill relieves OIP of the need to go to court to defend its prior opinions, just as a judge is not required to appear on appeal to defend his or her decision. The bill’s effective date is Jan. 1, 2013, and it looks like it will become law.