{"id":1236923,"date":"2017-06-02T00:01:10","date_gmt":"2017-06-02T10:01:10","guid":{"rendered":"http:\/\/www.civilbeat.org\/?p=1236923"},"modified":"2017-06-19T20:00:33","modified_gmt":"2017-06-20T06:00:33","slug":"hawaii-supreme-court-to-rule-on-secret-government-deliberations","status":"publish","type":"post","link":"https:\/\/www.civilbeat.org\/2017\/06\/hawaii-supreme-court-to-rule-on-secret-government-deliberations\/","title":{"rendered":"Hawaii Supreme Court To Rule On Secret Government Deliberations"},"content":{"rendered":"

A public records case that fundamentally challenges Hawaii government’s tendency to work in the shadows is in the hand’s of the state’s highest court.<\/p>\n

The Hawaii Supreme Court heard oral arguments Thursday in a lawsuit brought by 天美视频 against the City and County of Honolulu after city officials denied access to budget documents and material that Honolulu Mayor Kirk Caldwell used to shape his spending plan for fiscal year 2016.<\/span><\/p>\n

The budget memos outlined what each agency director \u2014 department heads,\u00a0such as the police chief and the ethics director, among others \u2014 had asked Caldwell to include in his 2016 budget proposal along with their justifications for the expenditures.<\/p>\n

The March 2015 records request was aimed at finding out what the departments considered to be spending priorities in order to compare those requests to what Caldwell ultimately proposed to the Honolulu City Council.<\/p>\n

\"Left,
The Hawaii Supreme Court including justices Paula Nakayama, left, and Mark Recktenwald, is considering whether to change a government practice of keeping information used in decision-making confidential. <\/span>Cory Lum\/Civil Beat\/2017<\/span><\/figcaption><\/figure>\n

City officials, however, denied Civil Beat\u2019s request saying that the records were subject to the \u201cdeliberative process privilege\u201d and therefore should be kept confidential.<\/p>\n

Civil Beat challenged the denial and in July 2015 a Circuit Court judge sided with the city<\/a>. But the Hawaii Supreme Court agreed to take the case directly.<\/p>\n

A decision invalidating or changing the privilege would have sweeping ramifications for government transparency in Hawaii, and potentially reverse decades of secrecy that bureaucrats and politicians have relied upon, possibly in violation of the state public records law.<\/p>\n

\u201cThe biggest issue at stake here is the existence of the deliberative process privilege in Hawaii,\u201d said Brian Black of the Civil Beat Law Center for the Public Interest<\/a>, which represented Civil Beat in the case.<\/p>\n

\u201cOn the federal level it\u2019s considered one of the most abused and frequently referenced privileges to withhold records,” he said. “That\u2019s consistent with my experience on the state level. It\u2019s frequently used to exclude records that I think most of the public would agree should be public records.\u201d<\/p>\n

But government officials here have clung to the privilege, saying that they couldn\u2019t do their jobs without it. They\u2019ve even argued that it\u2019s in the public\u2019s best interest to keep information secret.<\/p>\n

Duane Pang, deputy corporation counsel for the city, made this point Thursday, reiterating\u00a0what he and others have written in court documents.<\/p>\n

He said government officials need to maintain the privilege so that they can perform the public\u2019s business in an \u201cefficient and effective manner\u201d without constant second-guessing by taxpayers and critics.<\/p>\n

\u201cThe question is not really about the public\u2019s interest in open government or the right to know,\u201d Pang said during his opening remarks. \u201cIt\u2019s rather a recognition of the struggle between two equally important government functions.\u201d<\/p>\n

\"City
Duane Pang, deputy corporation counsel, said public disclosure of department heads’ budget requests could force the mayor’s hand. <\/span>Cory Lum\/Civil Beat<\/span><\/figcaption><\/figure>\n

He said city officials, including the mayor, should not be forced to make decisions \u201cin a fishbowl.\u201d Doing so could result in a chilling effect on public policymakers that would further slow down government and make it less likely that officials will be candid with one another.<\/p>\n

As justices peppered him with questions, Pang conceded that\u00a0city officials redact information from records because they don\u2019t want to open up the city to potential legal liability or regulatory fines from the state.<\/p>\n

Pang also gave the justices a couple of hypothetical examples, specifically related to the city\u2019s budget process.<\/p>\n

If a the public learned that a department had asked for more building inspectors to respond to \u201csafety issues,\u201d for instance, or an agency wanted to install a new traffic calming device to cut down on speeders and reduce accidents, Pang said public sentiment could force the mayor to make a decision he otherwise might not make.<\/p>\n

\u201cIf we disclose it prior to the mayor\u2019s decision then he may be obligated to implement that safety (proposal),\u201d Pang said.<\/p>\n

Black argued that Hawaii lawmakers consistently refused to put\u00a0the deliberative process privilege in Hawaii law, including when it created the state public records law, the Uniform Information Practices Act<\/a> in 1988.<\/p>\n

When lawmakers were drafting the bill, Black said, legislative history shows they specifically omitted the privilege and even declared that \u201cdiscussions, deliberations, decisions, and actions of government agencies shall be conducted as openly as possible.\u201d<\/p>\n

Black said the privilege crept into use after the Hawaii Office of Information Practices \u2014 the agency charged with interpreting the state\u2019s public records law \u2014 began issuing opinions citing the federal standard for the deliberative process privilege.<\/p>\n

\u201cOn the federal level, under FOIA, people refer to it as the \u2018Withhold-it-because-you-want-to exemption,\u2019\u201d Black told the justices. \u201cOur Legislature never intended Hawaii law to follow federal law down this rabbit hole.\u201d<\/p>\n

\"Brian
Brian Black of the Civil Beat Law Center for the Public Interest said Hawaii legislators never intended for there to be a deliberative process privilege to justify keeping government documents secret. <\/span>Cory Lum\/Civil Beat<\/span><\/figcaption><\/figure>\n

The justices took a keen interest in Black\u2019s argument about legislative intent, and whether lawmakers wanted to include the deliberative process privilege as an exemption to the public records law.<\/span><\/p>\n

But they also latched onto the city\u2019s arguments about whether there would be a chilling effect for making deliberations public, even if the information is released after a final decision has been made.<\/span><\/p>\n

\u201cDoesn\u2019t that affect future decisions regarding what people will put in memos or requests if they know that it\u2019s going to be public?\u201d Associate Justice Paula Nakayama asked Black. \u201cWouldn\u2019t it inhibit the free flow of ideas and decisions in the government?\u201d<\/span><\/p>\n

\u201cThere are policy arguments on both sides,\u201d Black responded. \u201cBut I think the Legislature rejected those.\u201d<\/p>\n

\u201cAt the same time,\u201d he added, \u201cthere are jurisdictions that do not have the deliberative process privilege as part of their public records law and they do not fall apart. They do not run into the situation where they are not able to conduct business.\u201d<\/p>\n

Associate Justice Michael Wilson pressed Black to give his own example of why the budget records being withheld by the Caldwell administration should be released.<\/p>\n

Specifically, Wilson wanted Black to explain what \u201cpublic good\u201d was served by making the information available.<\/p>\n

Black told Wilson that if the mayor includes $10 million for sewer or road repairs in his budget proposal it might appear \u201cgenerous.\u201d<\/p>\n

But if the public knew that a department head told the mayor the city needed 10 times that amount to keep up with maintenance the conclusion would be much different.<\/p>\n

\u201cThe public deserves to know when a department\u2019s needs are going unfunded or underfunded,\u201d Black said.<\/p>\n

He\u00a0also attacked the idea that city department heads \u2014 most\u00a0of whom are cabinet-level appointees of the mayor \u2014 should be fearful of what the public might think of their budget proposals.<\/p>\n

“Department heads are not shrinking violets,” Black said. “They’re key government officials. They are not people who should be shrinking away from the idea of public light. And these are not off-the-cuff remarks. These are things that were vetted internally for long periods of time.”<\/p>\n

Disclosure:<\/strong>\u00a0The Civil Beat Law Center for the Public Interest is an independent nonprofit organization created with funding from Pierre Omidyar, who is also CEO and publisher of Civil Beat.org. Civil Beat Editor Patti Epler sits on its board of directors.<\/span><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

A public records case that fundamentally challenges Hawaii government’s tendency to work in the shadows is in the hand’s of the state’s highest court. The Hawaii Supreme Court heard oral arguments Thursday in a lawsuit brought by 天美视频 against the City and County of Honolulu after city officials denied access to budget documents […]<\/p>\n","protected":false},"author":11778,"featured_media":1236875,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"om_disable_all_campaigns":false,"apple_news_api_created_at":"","apple_news_api_id":"","apple_news_api_modified_at":"","apple_news_api_revision":"","apple_news_api_share_url":"","apple_news_cover_media_provider":"image","apple_news_coverimage":0,"apple_news_coverimage_caption":"","apple_news_cover_video_id":0,"apple_news_cover_video_url":"","apple_news_cover_embedwebvideo_url":"","apple_news_is_hidden":"","apple_news_is_paid":"","apple_news_is_preview":"","apple_news_is_sponsored":"","apple_news_maturity_rating":"","apple_news_metadata":"\"\"","apple_news_pullquote":"","apple_news_pullquote_position":"","apple_news_slug":"","apple_news_sections":[],"apple_news_suppress_video_url":false,"apple_news_use_image_component":false,"footnotes":""},"categories":[2782,2783],"tags":[],"post_format":[],"project":[],"coauthors":[2010],"class_list":["post-1236923","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-hawaii-beat","category-honolulu-beat"],"slp_mobile_featured_image":{"id":1236875,"href":"https:\/\/www.civilbeat.org\/wp-json\/wp\/v2\/media\/1236875","image_path":"https:\/\/d1l18ops95qbzp.cloudfront.net\/wp-content\/2017\/06\/Associate-Associate-Justice-Paula-Nakayama2.jpg","caption":"The Hawaii Supreme Court including justices Paula Nakayama, left, and Mark Recktenwald is considering whether to change a government practice of keeping information used in decision-making confidential."},"acf":[],"slp_coauthors":[{"display_name":"Nick Grube","user_nicename":"ngrube","author_link":"https:\/\/www.civilbeat.org\/author\/ngrube\/"}],"slp_acf":{"post_twitter_card_type":"summary_large_image","post_twitter_card_description":"","cb_article_type":"","cb_related_logo_image":false,"cb_related_logo_link":"","cb_related_sponsor_logo_image":false,"cb_related_sponsor_url":"","cb_related_sponsor_text":"","cb_article_footnotes":"","dynamic_html":"","shins":false,"cb_inc_byline":true,"cb_custom_thumb_caption":true,"cb_author_contributor_type":"internal","cb_excerpt_type":"","incsides":false,"photo_caption":""},"slp_primary_category":{"id":2782,"name":"Hawai\u02bbi"},"apple_news_notices":[],"parsely":{"version":"1.1.0","meta":{"@context":"https:\/\/schema.org","@type":"NewsArticle","headline":"Hawaii Supreme Court To Rule On Secret Government Deliberations","url":"http:\/\/www.civilbeat.org\/2017\/06\/hawaii-supreme-court-to-rule-on-secret-government-deliberations\/","mainEntityOfPage":{"@type":"WebPage","@id":"http:\/\/www.civilbeat.org\/2017\/06\/hawaii-supreme-court-to-rule-on-secret-government-deliberations\/"},"thumbnailUrl":"https:\/\/d1l18ops95qbzp.cloudfront.net\/wp-content\/2017\/06\/Associate-Associate-Justice-Paula-Nakayama2-150x150.jpg","image":{"@type":"ImageObject","url":"https:\/\/d1l18ops95qbzp.cloudfront.net\/wp-content\/2017\/06\/Associate-Associate-Justice-Paula-Nakayama2.jpg"},"articleSection":"Hawai\u02bbi","author":[{"@type":"Person","name":"Nick Grube"}],"creator":["Nick Grube"],"publisher":{"@type":"Organization","name":"天美视频","logo":""},"keywords":[],"dateCreated":"2017-06-02T10:01:10Z","datePublished":"2017-06-02T10:01:10Z","dateModified":"2017-06-20T06:00:33Z"},"rendered":"