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Bills affecting the UIPA and the Sunshine Law.
House Journal comments on SB 2858 CD1 by Rep. Gilbert S. C. Keith-Agaran,
House Judiciary Chair.
Senate Journal comments on SB 2858 CD1 by Senator Clayton Hee, Senate
Judiciary Chair.
OIP's Justification Sheet for SB 2858 as introduced.
Allows board and commission members to
hear testimony for a meeting canceled for lack of quorum and to
attend informational meetings. Effective July 1, 2012. (HD2) Bill
text.
Bill
status (includes bill drafts, committee reports, and testimony).
Creates a process for an agency to obtain
judicial review of a decision made by the Office of Information
Practices relating to the Sunshine Law or the Uniform Information
Practices Act, and clarifies standard of review. Effective January
1, 2013. (CD1) Bill
text.
Bill status (includes bill drafts,
committee
reports, and testimony).
House Journal
comments on SB 2858, S.D. 1, H.D. 2, C.D. 1
by Rep. Gilbert S. C. Keith-Agaran, House Judiciary Chair:
Journal Comments
OD page 16
CCR 105-12
SB2858 SD1 HD2 CD1
Thank you Mr. Speaker,
I stand in support of this measure which creates a uniform procedure
for state or county agencies and boards to seek judicial review
of decisions by the State Office of Information Practices ("OIP")
relating to the Sunshine Law (Part I of Hawaii Revised Statutes
Chapter 92) or the Uniform Information Practices Act (Hawaii Revised
Statutes Chapter 92F) ("UIPA").
In light of the courts' recognition of a right to appeal OIP decisions
under UIPA, this measure is necessary to provide clarity by creating
clear procedures for appeal of OIP decisions. The inclusion of a
30-day period to file appeals and requiring appellants to show that
the OIP's decision was "palpably erroneous" ensures that
appeals will not be undertaken lightly and there will be great stability
in this area of law while ensuring that citizen requests for disclosure
of documents are not ignored by agencies. This bill confirms that
in the balance of government transparency, the weight of our law
tilts clearly towards the public's right to disclosure of government
records.
OIP administers and resolves disputes under both the UIPA and Sunshine
Law. Each law has different provisions for judicial appeals from
OIP’s decisions. The UIPA has no provision allowing an agency
to judicially challenge an OIP decision, while the Sunshine Law
permits “any person” to appeal to the courts. At the
time of the Sunshine Law was enacted, OIP did not exist and the
“any person” standard was meant to allow an individual
to challenge an agency’s actions for an alleged violation
of the Sunshine Law. UIPA did not contemplate allowing an agency
to challenge OIP’s decisions. However, in 2009, the courts
allowed an agency to judicially challenge an OIP decision mandating
the release of records pursuant to the UIPA, because that determination
was based on an underlying Sunshine Law decision and the “plain”
language of the Sunshine Law permitted an agency, as “any
person,” to appeal. County of Kauai v. Office of Information
Practices, 120 Haw. 34, 200 P.3d 403 (Haw. App. 2009) (summarily
affirmed by the Hawaii Supreme Court on June 23, 2009).
OIP asked the legislature to establish a simplified
and uniform appeals process for both laws. Some opponents of the
bill have argued that the bill relinquishes OIP’s current
authority to have the last word in UIPA decisions, while other opponents
(agencies and county councilmembers) claim that OIP is being granted
too much power for an entity that is not a court. Supporters of
the measure, which include OIP, the Governor and many state agencies
testified and understood that the bill reasonably balances these
competing interests and would provide a clear and uniform avenue
of judicial review to ensure that OIP’s decisions are founded
on proper legal bases while also discouraging agencies from simply
ignoring decisions with which they disagree. Rather than being embroiled
in litigation against other agencies, the bill would free OIP to
continue to provide training as well as informal dispute resolution,
which constitute the bulk of OIP’s work and are important
activities that help to ensure open government.
I agree with supporters of the bill. The conference
draft allows agencies to judicially challenge OIP’s decisions,
but requires agencies to timely appeal within 30 days and does not
require OIP or the person who requested the decision to appear in
court as parties to the appeal. While the bill now gives agencies
the right to judicially challenge OIP’s decisions, it also
sets a strong standard of review that would accord a presumption
of validity and require the courts’ deference to OIP’s
factual and legal determinations concerning the administration and
interpretation of the UIPA and Sunshine Law, unless such determinations
are “palpably erroneous” and result in a definite and
firm conviction that a mistake has been made. See e.g.,
Right to Know Committee v. City Council, 117 Haw. 1, 175
P.3d 111 (2007); Aio v. Hamada, 66 Haw. 401, 664 P.2d 727
(1983). The bill further clarifies that the de novo standard of
review referenced in HRS Sec. 92F-15(b) applies only to judicial
appeals brought by the general public, and that agencies’
appeals are instead subject to the higher “palpably erroneous”
standard. The bill does not affect the standard to be applied by
the courts in reviewing OIP decisions with respect to constitutional
issues or other matters beyond OIP’s sphere of expertise regarding
the UIPA and Sunshine Law.
As is typical in appeals from administrative decisions,
this bill limits the record in an agency appeal to what was presented
to OIP when it rendered its decision, thus requiring an agency to
present its best case to OIP and not rely upon having a second chance
to present new evidence in a judicial appeal. Only in extraordinary
circumstances would the circuit court allow discovery and admission
of additional evidence during an appeal from an OIP decision.
A key provision is that if an agency fails to timely
appeal within 30 days from an OIP decision mandating disclosure
of a record under the UIPA, then such agency will not be able to
challenge the decision if the citizen requesting the record is forced
to bring an action to compel disclosure. This provision thus encourages
agencies to take timely action, and it discourages agencies from
simply ignoring an OIP decision and indefinitely refusing to disclose
a record that OIP has determined should be disclosed under the UIPA.
Finally, this bill does not affect the general public’s
existing right to bring appeals or to recover reasonable attorney
fees and costs as prevailing parties in actions brought under either
the UIPA or the Sunshine Law.
It's unfortunate that we live in a cynical world.
A cynical world, in this case, that believes the worst about the
intentions of OIP and this present Administration. This bill provides
a framework in the reality that OIP and the public face, not the
fantasy world that opponents of this measure seem to believe exists.
Comments on SB 2858,
S.D. 1, H.D. 2, C.D. 1
by Senator Clayton Hee, Senate Judiciary Chair:
UNCERTIFIED COPY
Hawaii State Senate Journal
Remarks regarding SB 2858 CD1
Day 60 | May 3, 2012 | Regular Session
Senator Hee rose on a point of personal privilege
and said:
"With regard to Senate Bill No. 2858 SD 1 HD
2 CD 1: The bill was voted on and passed on Tuesday. With your permission,
I would like to request that my written comments be submitted into
the Senate Journal."
The Chair having so ordered, Senator Hee's remarks
read as follows:
"The purpose of this measure is to create a uniform
procedure for state or county agencies and boards (jointly referred
to as 'agencies') to seek judicial review of decisions by the state
Office of Information Practices ('OIP') regarding Hawaii’s
Uniform Information Practices Act (modified), HRS Chapter 92F ('UIPA')
or the 'Sunshine Law,' Part I of HRS Chapter 92.
"The OIP was created in 1988 to administer the then newly enacted
UIPA. In 1998, OIP was given the additional responsibility of administering
the Sunshine Law, which had been previously enacted in 1975. As
part of its duties, OIP provides a non-judicial alternative to resolving
the general public’s disputes with agencies under both laws
and is not subject to the contested case procedural requirements
of HRS Chapter 91, the Hawaii Administrative Procedures Act.
"While OIP administers and resolves disputes
under both the UIPA and Sunshine Law, each law has different provisions
for judicial appeals from OIP’s decisions; indeed, the UIPA
has no provision allowing an agency to judicially challenge an OIP
decision, while the Sunshine Law permits 'any person' to appeal
to the courts. Notably, at the time of the Sunshine Law’s
enactment, OIP did not exist and the 'any person' standard was obviously
meant to allow an individual to challenge an agency’s actions
in alleged violation of the Sunshine Law, and it did not contemplate
allowing an agency to challenge OIP’s decisions. OIP has also
long maintained that there is no existing right for an agency to
appeal under the UIPA, as the lack of such right was an intentional
omission designed to prevent agencies from suing agencies, and HRS
Sec. 92F-15.5 states that 'the agency shall make the record available'
when mandated to do so by OIP. In 2009, however, Hawaii’s
courts allowed an agency to judicially challenge an OIP decision
mandating the release of records pursuant to the UIPA, because that
determination was based on an underlying Sunshine Law decision and
the 'plain' language of the Sunshine Law permitted an agency, as
'any person,' to appeal. County of Kauai v. Office of Information
Practices, 120 Haw. 34, 200 P.3d 403 (Haw. App. 2009) (summarily
affirmed by the Hawaii Supreme Court on June 23, 2009).
"Given the confusion over appellate rights arising
from the 2009 court decisions and the need for clarity before finalizing
its appeals rules, OIP asked the legislature to establish a simplified
and uniform appeals process for both laws. Some opponents of the
bill have argued that the bill relinquishes OIP’s current
authority to have the last word in UIPA decisions, while other opponents
claim that OIP is being granted too much power for an entity that
is not a court. Supporters of the measure, which include OIP, the
Governor, many state agencies, and the League of Women Voters, contend
that the bill reasonably balances these competing interests and
provides a clear and uniform avenue of judicial review to ensure
that OIP’s decisions are founded on proper legal bases while
also discouraging agencies from simply ignoring decisions with which
they disagree. Rather than being embroiled in litigation against
other agencies, the bill frees OIP to continue to provide training
as well as informal dispute resolution, which constitute the bulk
of OIP’s work and are important activities that help to ensure
open government.
"S.B. No. 2858, S.D. 1, H.D. 2 allows agencies
to judicially challenge OIP’s decisions, but requires agencies
to timely appeal within 30 days and does not require OIP or the
person who requested the decision to appear in court as parties
to the appeal. While the bill gives agencies the right to judicially
challenge OIP’s decisions, it also sets a strong standard
of review that accords a presumption of validity and requires the
courts’ deference to OIP’s factual and legal determinations
concerning the administration and interpretation of the UIPA and
Sunshine Law, unless such determinations are 'palpably erroneous'
and result in a definite and firm conviction that a mistake has
been made. See e.g., Right to Know Committee v. City Council,
117 Haw. 1, 175 P.3d 111 (2007); Aio v. Hamada, 66 Haw.
401, 664 P.2d 727 (1983). The bill further clarifies that the de
novo standard of review referenced in HRS Sec. 92F-15(b) applies
only to judicial appeals brought by the general public, and that
agencies’ appeals are instead subject to the higher “palpably
erroneous” standard. The record should note that the bill
does not affect the standard to be applied by the courts in reviewing
OIP decisions with respect to constitutional issues or other matters
beyond OIP’s sphere of expertise regarding the UIPA and Sunshine
Law.
"As is typical of appeals from administrative
decisions, this bill limits the record on appeal by an agency to
what was presented to OIP when it rendered its decision. This requires
an agency to present its best case to OIP and not rely upon having
a second chance to present new evidence in a judicial appeal. The
circuit court would allow discovery and admission of additional
evidence during an appeal from an OIP decision only in extraordinary
circumstances.
"If an agency fails to timely appeal within 30
days from an OIP decision mandating disclosure of a record under
the UIPA, then it will not be able to challenge the decision if
an action to compel disclosure is brought. This provision encourages
agencies to take timely action. The provision discourages agencies
from simply ignoring an OIP decision and indefinitely refusing to
disclose a record that OIP has determined should be disclosed under
the UIPA.
"Finally, this bill does not affect the general
public’s existing right to bring appeals or to recover reasonable
attorney fees and costs as prevailing parties in actions brought
under either the UIPA or the Sunshine Law."
OIP's Justification Sheet for S.B. 2858 as
introduced:
JUSTIFICATION SHEET
SB. NO. 2858
DEPARTMENT:
Office of the Lieutenant Governor, Office of
Information Practices.
TITLE:
A BILL FOR AN ACT RELATING TO OPEN GOVERNMENT.
PURPOSE:
To create a process for an agency to obtain
judicial review of Office of Information
Practices (OIP) decisions under a "palpably
erroneous" standard, provided that OIP or a
member of the public affected by the decision
shall not be required to participate and that
review shall be limited to the record before the
Office of Information Practices except in
extraordinary circumstances, and to further
clarify that de novo review of an OIP opinion
applies where a requester appeals to the court
after OIP upholds the agency's denial of access,
and that in other actions under the Sunshine Law
or Uniform Information Practices Act, OIP
opinions are admissible and are precedential
unless "palpably erroneous." To allow time for
the adoption of adopt administrative rules
relating to the new appeals process, the
effective date of the proposal will be January
1, 2013.
MEANS:
Add a new section to part IV of chapter 92F and
amend sections 92-12, 92F-l5(b), and 92F-27,
Hawaii Revised Statutes.
JUSTIFICATION:
The Uniform Information Practices Act (UIPA)
allows record-requesting members of the public
to challenge a record denial through an informal
process of review by OIP. If a requester is
dissatisfied with this informal resolution
process, then the law currently allows a
requester to go to court to seek de novo review
of a decision by the Office of Information
Practices (OIP) upholding a denial of access to
records by a government agency.
Until the Hawaii Supreme Court's decision in
County of Kauai v. OIP, 120 Haw. 34, 200 P.3d
403 (2009), OIP understood that the UIPA did not
provide the agency with a similar right to
challenge an OIP decision mandating access to
records. The UIPA's legislative history
indicates that the lack of a process for agency
appeals was an intentional omission, intended to
prevent lawsuits between agencies.
Notwithstanding this legislative intent,
Hawaii's appellate courts in 2009 allowed an
agency to sue OIP as a way of challenging its
UIPA decision on executive meeting minutes.
Despite the lack of an appeal right under the
UIPA, the courts found appellate jurisdiction
under the Sunshine Law, which OIP also
administers and had interpreted in rendering an
earlier, separate decision on executive meeting
minutes.
Because the courts and agencies obviously
believe that OIP opinions should ultimately be
reviewable, and are likely to continue to seek
ways to accomplish such review, continued
litigation over agencies' appeal rights would be
contrary to the statutory intent to avoid
"agencies suing agencies." Thus, the proposed
bill seeks to create a uniform procedure
applicable to both the UIPA and the Sunshine Law
that would strictly define and limit agencies'
right to appeal OIP opinions without requiring
OIP's appearance in the appeal. Extending the
process for judicial review applicable under
both laws will create further uniformity and
clarity as to the weight given to an OIP opinion
and the remedies available to an agency or other
person dissatisfied with that opinion.
At present, the appellate courts have set two
different standards of review for OIP's opinions
under the UIPA and the Sunshine Law
respectively. The Hawaii Supreme Court has
indicated (in dicta) that an abuse of discretion
standard applies to OIP's determinations on core
UIPA issues such as providing guidance to the
public and agencies as to when agency records
should be opened to the public. 'Olelo v. OIP,
116 Haw. 337, 346 (2007). The Hawaii
Intermediate Court of Appeals has applied the
"palpably erroneous" standard for its review of
OIP's Sunshine Law decisions. Right to Know
Comm. v. City Council, 117 Haw. 1 , 13 (2008).
For the sake of uniformity, OIP seeks to set a
single standard of review applicable to both
laws. OIP believes that the "palpably
erroneous" standard is preferable to the abuse
of discretion standard in that it requires
deference to OIP's statutory interpretations of
provisions of the Sunshine Law or UIPA, in
addition to OIP's factual determinations or
mixed determinations of fact and law, whereas
the abuse of discretion standard would require
deference only as to factual or mixed factual
and legal determinations. The "palpably
erroneous" standard will give greater clarity to
the agencies and members of the public who seek
OIP's opinion on how Sunshine Law or UIPA
provisions apply or are interpreted in
particular situations, because the OIP opinions
thus obtained will carry greater precedential
weight.
The review process proposed by this bill would
allow an agency to obtain judicial review of an
OIP decision under a palpably erroneous standard
by bringing suit against the decision itself,
rather than against either OIP or the member of
the public who originally requested the opinion.
Court review would be limited to the record
before OIP, except in extraordinary
circumstances. OIP and the person who requested
its opinion would be given notice of the suit
and would have the right to intervene, but would
not be required to participate in the special
proceeding.
To avoid confusion as to the effect of the new
review process on a record requester's existing
right to go to court on a de novo basis after
receiving an unfavorable opinion, the bill would
further clarify that de novo review only applies
in a requester's (not an agency's) appeal to
court after an OIP decision upholding the
agency's denial of access, and the de novo
standard does not apply to other OIP decisions
that may be considered by the court in the
course of that appeal. The bill would also
align the standards under parts II and III of
the UIPA for a record requester's appeal to
court after an OIP decision upholding an
agency's denial of access, and would codify the
standard currently recognized by Hawaii's courts
for admissibility and precedential weight given
to OIP opinions in Sunshine Law litigation.
Impact on the public: This bill will not force
members of the public to go to court to defend
an agency's appeal of an OIP opinion. Members
of the public will remain entitled to de novo
review when challenging an opinion from OIP
upholding an agency's denial of access to a
record.
Impact on the department and other agencies:
This bill will give agencies the right to
challenge an OIP opinion under either the
Sunshine Law or the UIPA, and will provide a
uniform process for doing so. Just as a judge
is not required to appear on appeal to defend
his or her decision, this bill will relieve OIP
of the need to go to court to defend its prior
opinions. The proposed appeal process will not
require either OIP or the requester to
participate in the judicial review proceeding.
The deferential review standard provided for,
together with the general limitation of
confining the court's review to the record
before OIP, will allow a court to render its
decision essentially on the pleadings.
Impact on the New Day Plan: The proposed
clarification of when, and under what standard,
judicial review of OIP's decisions is available
will eliminate the public's and agencies'
confusion regarding this issue and allow
administration of the open records and open
meeting laws to work more smoothly. This will
promote the New Day Plan's goal to improve
government transparency and to rebuild public
confidence in government.
GENERAL FUND:
None.
OTHER FUNDS:
None.
PPBS PROGRAM
DESIGNATION:
None.
OTHER AFFECTED
AGENCIES:
All state and county agencies subject to the
UIPA and all state and county boards subject to
the Sunshine Law.
EFFECTIVE DATE:
January 1, 2013.
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