HILO — The state Legislature on Tuesday passed a bill allowing state agencies to go to court to appeal rulings regarding open records and open meetings.
HILO — The state Legislature on Tuesday passed a bill allowing state agencies to go to court to appeal rulings regarding open records and open meetings.
Under Senate Bill 2858, which amends the state’s open records law, state agencies can seek review of an adverse decision by the Office of Information Practices by a state circuit court. Under the change, judicial review “shall be limited to the record that was before (OIP)” unless “extraordinary circumstances justify discovery and admission of additional evidence.” A court must find OIP’s decision “palpably erroneous” to overturn an OIP decision.
OIP is a state agency charged with interpreting the state’s open meetings and open records laws.
“(The bill) gives OIP’s decisions some authority,” OIP Director Cheryl Kakazu Park said Thursday afternoon. She said the agencies’ right to appeal come with “strict limitations.”
Those who submitted testimony in opposition include the County of Kauai, which successfully sued the OIP after it ruled that its County Council improperly went into executive session to discuss whether to investigate alleged unethical activity by that county’s police department. Others opposed include the Society of Professional Journalists Hawaii Chapter and the Big Island Press Club.
According to the BIPC testimony, the provisions of the law appear “well intentioned,” but the group’s Board of Directors “believe they unwisely allow a government agency a legal avenue to block release of information while a lawsuit is underway, even when a lawsuit is not well founded.”
Beverly Keever, a retired professor of communications and journalism at the University of Hawaii at Manoa, said that SB 2858 erodes the open records law and ignores the legislative intent in which it was passed.
“Rather than sticking to the dispute resolution process that has been working for 24 years in … the open records law, Senate Bill 2858 establishes a judicial process in which a government agency can go to court rather than release a record to which a citizen requester is entitled,” she said. “… Before it was a blank wall. The agencies could not sue OIP. The Legislature wanted a dispute resolution process rather than litigation because (the press and public) were suing the government all the time to get records out of the Ariyoshi administration. They wanted to close off court cases and give another model to resolve these disputes.”
Also approved was SB 2859, a measure creating two new exemptions to the Sunshine Law. One would allow board and commission members to hear testimony and ask questions at meetings that are officially cancelled due to a lack of quorum, provided they make no decisions and later report the interactions to the full panel. The second would allow two or more board members to attend and discuss board business at seminars, conferences, informational meetings, legislative hearings and other meetings, provided that there is less than a quorum of members present, and that no decisions are made and the members report the interactions to the full board.
“I think that seems pretty innocuous,” Keever said. “It’s kind of common sense, I guess that two or more members could go to a seminar or to a convention, not exclusively organized for their official business and discuss business without (making decisions).”
Stricken from the measure was a controversial provision that would allow two or more members, but less than a quorum, to discuss board business via social media.
Gov. Neil Abercrombie is expected to sign both measures into law.