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Editor’s note: Kudos to the Office of Information Practices for to two recent columns I wrote criticizing its approach to public records cases. The powers of the office are an important matter of public debate and I appreciate that it is using its website to share its interpretation of its mandate. To read my original columns:

• Hawaii Open Records Agency Lets Public Down
• Hawaii Legislature Needs to Give Records Office a Backbone

Here is the complete text of the OIP post:

OIP administers Hawaii’s open government laws: the Uniform Information Practices Act (“UIPA,” Chapter 92F, H.R.S.) mandating open access to public records and the “Sunshine Law” (Part I of Chapter 92, H.R.S.) requiring open public meetings. OIP also maintains the Records Report System, which is an internet database identifying over 27,000 titles of records maintained by state and county governments and whether the public is entitled to access them.

While OIP administers the open government laws, it does not make them and its interpretation of these laws is still subject to legislative amendments and court rulings. Without presenting an accurate understanding of the law or OIP’s role in preserving open government, some people have incorrectly asserted that OIP has the power to compel government officials to disclose information based on the UIPA’s statement that when an OIP determination is to disclose, the agency “shall make the record available.” H.R.S. Sec. 92F-27.5(b). The raw truth is that the law does not give OIP the power to enforce its rulings.

Unlike a court, OIP has never been given authority under the law to subpoena records or witnesses, to issue injunctions, to compel an agency to follow its ruling, or to fine a recalcitrant agency for contempt. As the Hawaii Supreme Court bluntly noted, the “UIPA does not provide OIP with enforcement powers to compel an agency to make government records available or to itself seek court assistance to compel disclosure.” `Olelo v. Office of Inform. Practices, 116 Haw. 337, 346 n.2 (2007). The Hawaii Supreme Court has also rejected OIP’s vigorous arguments that its determinations mandating disclosure are binding upon agencies under H.R.S. Section 92F-27.5(b) and that the UIPA does not permit government agencies to appeal OIP’s decisions in light of the explicit legislative intent in the original conference committee report stating that agencies should not be suing agencies. Instead, after two years of appeals, the Hawaii Supreme Court summarily affirmed the Intermediate Court of Appeals’ decision in County of Kauai v. OIP, 120 Haw. 34, 200 P.3d 403 (2009), which allowed an agency to sue OIP under the Sunshine Law and overturned a determination that OIP had made under the UIPA. In essence, the courts decided that they, not OIP, have the last word in resolving both UIPA and Sunshine Law issues. And while judges are not sued when they issue decisions with which agencies disagree, the County of Kauai opinion allowed an agency to challenge an OIP decision by suing OIP instead of the requestor. Consequently, to avoid being mired in new appeals that would interfere with resolution of OIP’s backlog of opinion requests and would distract OIP from performing its many other duties, OIP has temporarily suspended the issuance of determinations mandating disclosure and will provide only advisory opinions until it can obtain legislative clarification of its authority and its appeal rights and responsibilities during the 2012 session.

With or without an OIP opinion, requestors always have the right to sue a recalcitrant agency in court, as one newspaper recently did to obtain the release of police records. Not only does the court have subpoena, injunctive, and contempt powers, it is specifically empowered to compel disclosure of records, to void board action, and to award reasonable attorney fees and costs to the prevailing party on appeal. In past cases that were important to the media or public interest groups, requestors have not been afraid to exercise their alternative right to sue an agency that has refused to abide by OIP’s decisions. See, e.g., Right to Know Committee v. City Council, 117 Haw. 1, 175 P.3d 111 (2007); SHOPO v. City and County of Honolulu, 83 Haw. 378, 927 P.2d 386 (1996). After all, it is the requestor who initiated the complaint against the agency and has the most direct interest in the case, so the law permits the requestor to sue the agency in court for alleged violations. Indeed, under the federal Freedom of Information Act and in most states, the only way to obtain binding enforcement of the open records laws is by filing a lawsuit against the agency in court.

In Hawaii, OIP has been the initial and preferred alternative to court actions because OIP is usually able to resolve disputes in a free, informal, and timely manner. Members of the public can now easily seek and obtain advice and assistance from OIP, without having to be represented by an attorney. But if OIP is given the power to subpoena, fine, or compel agencies to follow its rulings, will the cases presented to OIP then become subject to the more expensive, formal, and lengthy procedures required in court or contested case proceedings? Since the Legislature clearly did not intend OIP to follow contested case procedures, then why would it now grant OIP quasi-judicial authority paralleling the court’s powers without also requiring more stringent legal proceedings? With more burdensome procedural requirements, would OIP be given additional tax dollars and resources to meet its new responsibilities while continuing to fulfill all of its other duties, to train and advise agencies, and to provide easy access to justice for the public, including the media? And, if OIP no longer offered the alternative of an informal dispute resolution process, would requestors who will not sue now — even when armed with OIP advisory opinions in their favor — be prepared to seek court enforcement of the open government laws each time an agency denied or dawdled on a record request?

While people may be aware of a few cases selectively profiled in the media, they do not realize that these cases are just the tip of the iceberg of work that OIP performs to ensure open government. Each year, OIP receives over 800 requests for assistance or training, which are handled by three staff attorneys. More than 80% of these requests are resolved the same day through OIP’s attorney of the day service and more than 70% of those daily requests come from government agencies seeking training or advice on how to comply with the UIPA or Sunshine laws. The media is one of the heaviest users of OIP’s services, constituting nearly 20% of the 187 attorney of the day requests from the public that OIP received last year. In all but a few cases, OIP has been successful in obtaining government agencies’ and boards’ voluntary compliance with its advice and rulings. Thanks to the genuine desire of government officials and volunteer board members to comply with the law, OIP is able to fulfill its various responsibilities and to protect the public’s interest in open and transparent government.

For OIP to continue to provide free and timely assistance to the public and to government agencies, OIP cannot be bogged down in litigation and court appeals, as it was during 2008-2010, which resulted in a backlog of OIP’s pending requests for opinions. Moreover, given the severe cutbacks in government funding, OIP is not blind to the costs of hiring special counsel to represent it in litigation against another state agency because the Attorney General’s office may be conflicted from representing both opposing parties in the case. Thus, rather than splurging taxpayers’ dollars and tying up OIP’s and other government entities’ limited time and resources on only a couple of cases requiring court action for enforcement, OIP has chosen to protect the greater public interest and to keep the wheels of government functioning by concentrating on the hundreds of requests daily seeking OIP’s assistance and by helping the vast majority of agencies who willingly comply with the law.

In the past three months, OIP has also begun leveraging its small staff by developing new legal training courses specifically geared towards government attorneys who advise state and county agencies, so that these additional attorneys will understand Hawaii’s open government laws and can properly advise their government clients on how to comply with them. Moreover, OIP has updated its on-line UIPA and Sunshine Law guides, has created a new Sunshine Law guide specifically for neighborhood boards, and has provided in-person training on Oahu, Maui, and Kauai to assist the general public, volunteer board members, and state and county government officials in understanding Hawaii’s open government laws. OIP has already videotaped one training session on the Sunshine Law and plans to do more videos, which will soon be posted on its website so that people can have access to OIP’s training 24/7 from all islands.

During the next few months, OIP will be busy getting input on and developing proposals for its legislative package for the 2012 session. While OIP’s main priority is to seek clarification of its authority and appeal rights and responsibilities, OIP is also developing a proposal to allow government’s use of social media as a means of increasing public participation and government transparency.

Since the 1978 Sunshine Law and the 1988 UIPA were originally enacted, there have been immense changes in technology and how it is being used by people. Today, social media, such as Facebook, Twitter, and You Tube, is being used 24/7 to instantly reach millions of people worldwide and there is increasing interest on the part of government agencies to use these new communication tools to disseminate and receive information and to maintain a vibrant democracy. But because social media discussions using tweets or Facebook postings are no different than discussions in person, by telephone, or via email, inadvertent violations of the current Sunshine Law may occur if social media is used to conduct board business when more than two board members have been “friended” or have read other members’ comments posted on mutual friends’ walls. Although there are many policy, legal, technical, and practical questions that have yet to be resolved, OIP is taking a proactive role and is reaching out to various government and public interest groups to avert potential legal problems under the open government laws and to address other social media issues. Indeed, OIP has already met with Sonny Bhagowalia, the new Chief Information Officer of the state’s new Office of Information Management and Technology, to discuss how the state’s technological capabilities can be improved to enhance open government and to possibly develop a model social media policy for the state.