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My column here last week considered whether the state’s Sunshine Law provides any protection for the public when agencies like the Honolulu City Council are late in sending out email notices before public meetings.

The question arose when, on several recent occasions, the council provided only two or three days notice, far short of the minimum six days required by law.

Did those late notices violate the law? Last week’s column concluded they did not.

But I was wrong. Or, to be more precise, my answer was right as far as it went, but it failed to go far enough.

First, a recap.

The question of legality turns out to be kind of a trick question. The sunshine law was written before the digital era and the general availability of email, so the law obviously has no references to email. No legal requirements are spelled out for digitally delivered meeting notices because such things simply didn’t exist when the law was written.

The Office of Information Practices, which interprets and enforces the Sunshine Law and the public records law, advises that while email delivery of agendas and meeting notices is convenient, it is provided only as “a courtesy” and agencies face no legal problems if they don’t comply with the law’s otherwise strict requirements.

Email notices could be sent out just two days before a meeting, instead of the legally required six days, or even not sent out at all, and as far as the sunshine law is concerned, it doesn’t matter. Late emails don’t violate the law because they aren’t covered by its dated, mid-20th Century provisions.

OIP’s advice was pretty straightforward. To protect yourself and assure that you can rely on the law’s remedies in the event agencies don’t give enough public notice, ask to be put on the list to receive old-fashioned, mailed, stamp-on-the-envelope meeting notices.

If those mailed notices don’t arrive on time, there’s a clear remedy.

According to an OIP summary of meeting notice requirements, if notices aren’t postmarked at least six calendar days before the meeting, “OIP will routinely advise the board to cancel the meeting.”

The Looming Crisis

The problem is that the City Council phased out its system for mailing notices years ago, and now relies wholly on email and online posting of agendas.

If you call the City Clerk’s office and ask to be put on the mailing list to receive meeting notices, they will helpfully refer you to an online form where you can sign up for their email subscription list. Ask again about getting printed copies by regular mail, and you’ll be told they no longer provide that service.

And that failure to provide an option to receive meeting notices by regular mail, which preserves the right to access the remedies in the law, appears to be a significant Sunshine Law violation.

Council members may be under the impression that they are complying with the law by sending email meeting notices, but it appears they are wrong.

“The law on notice is clear,” OIP Staff Attorney Jennifer Brooks said last week. “The agency has a clear statutory duty to provide proper notice, and shall mail a copy to anyone who has requested it.”

To underscore her point, Brooks added: “If anybody seeks to sign up to receive mail notices, and can’t do it, the council could be in the position of having to cancel all their meetings.”

That would get their attention, wouldn’t it?

Two things come to mind. First, it would appear training in Sunshine Law requirements is lacking or insufficient, otherwise someone at the city would have caught this problem long ago. Second, the fact that no one has complained previously shows how much the public values the convenience, timeliness, and cost savings that email delivery can provide when its done right.

The message for the Legislature is that it’s time to bring the Sunshine Law into the digital age. And the message for the city is that it may be possible to avoid having to cancel all meetings until mail delivery is restored if it assures those email notices consistently provide at least six days of notice.

But if delays continue, it’s time for someone to make an official complaint so that OIP can step in and force cancellation of future meetings until the council is in compliance.