UIPA Log Revisions
May 15, 2013
The State Office of Information Practices (OIP)
has revised the UIPA Record Request Log to be used for the next
fiscal year, beginning July 1, 2013. The revised Log and updated
training materials are online on OIP’s
training page at hawaii.gov/oip. The changes will give OIP
and the public a better understanding of how agencies are resolving
UIPA requests.
The main change is the addition of a new
Column J entitled “Request Needed Initial Clarification,”
and all columns after J have been re-lettered. This new column
J should be checked when the agency needs initial clarification
of a request before it can proceed. Within 10 work days of receiving
an unclear request, the agency should send out a Notice to Requester
seeking clarification. The requester then has 20 work days to
provide clarification. If timely clarification is not received,
then the request is deemed abandoned
and Column T would be checked. If clarification
is received, then the agency should respond.
If the agency ultimately determines that it does not maintain
the record or denies the request because it is being asked to
create a summary or compilation from records that are not readily
retrievable, then re-lettered Column R should be checked for “Agency
Unable to Respond to Request.” Note that Column R should
be checked only to explain the FINAL resolution of a request,
and not as the agency’s initial response to a request.
Also, Column R should not be checked off in addition to Columns
P or Q, when an agency denies a request in full or in part because
of claimed exceptions to disclosure. Only one of Columns O through
T should be checked off in the Final Request Resolution section
to explain how a request was ultimately resolved.
All state Executive branch departments and the Judiciary
should be using the Log to track and report the resolution of
Part II and Part III record requests. The Log is proving to be
a helpful training, management, and reporting tool to assist agencies
in meeting their UIPA responsibilities. For questions about the
Log, please contact Michael Little at oip@hawaii.gov or by calling
586-1400.
For the latest on open government news, check for
these archived copies of What’s New articles that are posted
here, or e-mailed upon request. To be added to OIP’s e-mail
list, please e-mail oip@hawaii.gov.
Open Data Bill Passes
May 1, 2013
The State Office of Information Practices (OIP)
is pleased to report that the Hawaii State Legislature passed
a bill to provide greater public access by encouraging state executive
branch departments to electronically publish and regularly update
public information online. The final
draft of HB 632, Relating to Open Data, was passed by both
the House and Senate on April 30, 2013, and requires each executive
branch department to “use reasonable efforts to make appropriate
and existing electronic data sets maintained by the department
electronically available to the public through the State’s
open data portal at data.hawai.gov.”
The bill does not change anything in the Uniform
Information Practices Act (UIPA), HRS Chapter 92F, so it does
not affect whether or not government records must be disclosed.
Rather, the bill memorializes the state’s open data policy
in order “to increase public awareness and access to data
and information created by and available from state departments
and agencies, enhance government transparency and accountability,
encourage public engagement, and stimulate innovation with the
development of new analyses or applications based on the unique
data provided by the State.”
State, county, and federal agencies have already
begun loading open data onto the following websites: data.hawaii.gov,
data.honolulu.gov, and
data.gov. State agencies that
have been using the UIPA Record Request Log are familiar with
the state’s website at data.hawaii.gov, where they have
been uploading their data onto OIP’s
Master UIPA Log. In due course, OIP plans to more fully utilize
the extensive capabilities of data.hawaii.gov to provide graphs,
charts, and other visualizations to summarize the information
compiled in the Master Log.
The open data initiative is one of the top priorities of Hawaii’s
Chief Information Officer Sonny Bhagowalia, and the bill is expected
to be signed by Governor Neil Abercrombie and go into effect on
July 1, 2013.
For the latest on open government news, check for
these archived copies of What’s New articles that are posted
here, or e-mailed upon request. To be added to OIP’s e-mail
list, please e-mail oip@hawaii.gov.
Quick Review of Redactions
April 25, 2013
The State Office of Information Practices (OIP)
has prepared the fourth in its series of Quick Reviews, which
provide helpful guidance and tips on complying with Hawaii’s
Uniform Information Practices Act (UIPA), HRS Chapter 92F, and
the Sunshine Law, Part I of HRS Chapter 92. “Quick
Review: The ABCs of Redaction” is now online at OIP’s
training page at hawaii.gov/oip to help agencies properly
segregate records that must be disclosed under the UIPA.
For the latest on open
government news, check for these archived copies of What’s
New articles that are posted here, or e-mailed upon request. To
be added to OIP’s e-mail list, please e-mail oip@hawaii.gov.
OIP Issues Personal
Records Opinion
April 12, 2013
The state Office of Information Practices (OIP)
issued a new formal opinion as well as a new Quick Review, which
explain the analytical framework to identify and respond to personal
records requests made under Part III of the UIPA. OIP
Op. Ltr. No. F13-01 and Quick
Review on Responding to a Personal Record Request can also
be found on the Laws, Rules,
Opinions page of OIP’s website at hawaii.gov/oip.
While Part II of the Uniform Information Practices
Act (UIPA) governs the general public’s right of access
to government records, Part III provides individuals with different
and broader rights to access and to seek correction of personal
records about themselves. For an agency’s knowing or intentional
violation of Part III, the UIPA requires a court to impose court
costs and $1,000 or more in actual damages. Additionally, a court
may award reasonable attorney fees and litigation costs against
an agency if the complainant substantially prevails, or against
the complainant who brings frivolous charges under Part III. Consequently,
agencies and their counsel are urged to review OIP’s new
materials as soon as possible to understand how to promptly identify
and respond to Part III personal record requests.
For the latest on open government news, check for
these archived copies of What’s New articles that are posted
here, or e-mailed upon request. To be added to OIP’s e-mail
list, please e-mail oip@hawaii.gov.
OIP Provides Guidance on Responding
to Requests for Misconduct Records
April 10, 2013
The state Office of Information Practices (OIP)
is providing the following guidance in response to numerous inquiries
that it has received regarding a recent news media request for
records regarding employees who have been suspended or discharged
for misconduct, which is a government records request under Part
II of the UIPA.
HRS section 92F-12(a)(2) requires the disclosure
of “[f]inal opinions, . . . as well as orders made in the
adjudication of cases, except to the extent protected by section
92F-13(1).” HRS section 92F-13(1) protects against disclosures
that “would constitute a clearly unwarranted invasion of
privacy.” Except for county police officers, HRS section
92F-14(b)(4)(B) states that an employee who is suspended or discharged
has no significant privacy interest in the following information,
which therefore, must be disclosed: name, nature
of the employment-related misconduct, the agency’s summary
of the allegations of misconduct, findings of fact and conclusions
of law, and the disciplinary action taken by the agency, provided
that the highest non-judicial grievance adjustment procedures
timely invoked by the employee or the employee’s representative
has been concluded, and that 30 calendar days have elapsed following
the issuance of a written decision sustaining the suspension or
discharge. The same provisions of HRS Section 92F-14(b)(4)(B)
apply to county police officers, but only when they have been
discharged.
Given these statutory provisions, agencies should
respond to the record request by completing a Notice to
Requester and should keep the following in mind.
First, if the requisite time has passed and a final
written decision to suspend or discharge has been issued, then
the decision should be provided to the requester. See
e.g., OIP
Op. Ltr. No. 95-06 (requiring the release of an arbitrator’s
decision).
Second, if the requisite time has passed, but there
is no written decision, then agencies should know that they are
not required to create summaries unless the information is maintained
by them and is readily retrievable. If a record does not exist
or is not readily retrievable, then the agency should respond
by completing a Notice to Requester and checking the appropriate
box stating that the request “Cannot be granted because”
the either the “Agency does not maintain the records”
or the “Request requires agency to create a summary or compilation
from records not readily retrievable.” The agency should
also select “Agency does not maintain the records”
if no employee has been suspended or discharged during the time
period of the request for records.
Third, if the requisite time has passed and there
is no written decision, but the misconduct information required
by HRS section 92F-14(b)(4)(B) is maintained in various personnel
documents that are readily retrievable, then an agency may either
(a) provide the personnel documents after performing necessary
redactions of nonpublic information, or (b) create a summary with
the statutorily required public information about employee misconduct.
In doing so, the agency must be careful to not include any information
that is exempt from public disclosure because it would be a “clearly
unwarranted invasion of personal privacy” or would fall
within another exception set forth in section 92F-13, HRS, in
Part II of the UIPA. For instance, information such as names of
confidential sources, personal contact information or social security
numbers, or medical information should not be included in an agency’s
findings of fact and conclusions of law regarding an employee’s
suspension or termination, particularly with respect to third
parties.
Fourth, if the time period in HRS section 92F-14(b)(4)(B)
has not passed and disciplinary matters are still pending, then
agencies should check the appropriate Notice to Requester box
stating that the request “Is denied in its entirety”
or “Will be granted only as to certain parts,” and
describe below the records being withheld under HRS section 92F-14(b)(4)(B)
because the disciplinary matter is still pending.
Fifth, agencies should provide the Notice
within 10 work days of receiving the written request.
If agencies need more than ten work days to search for, review,
and redact responsive records, then they should still send an
Acknowledgement to the requester within ten days
of receiving the written request. The Notice and Acknowledgment
forms are available on the Forms page at
hawaii.gov/oip. OIP’s Informal Guide to Processing Large
or Complex UIPA Record Requests is available on the training
and guidance page at http://hawaii.gov/oip/openlineguidance.html.
Sixth, OIP’s rules allow agencies to charge
$2.50 per 15 minutes to search for records, and $5.00 per 15 minutes
to review and segregated records. The $30 fee waiver applies to
all record requests, but the $60 public interest fee waiver only
applies to entities that have fulfilled the requirements of section
2-71-32, Hawaii Administrative Rules, as explained in OIP’s
guidance regarding public interest fee waivers found on OIP’s
website. Note that the waivers only apply to UIPA search, review,
and segregation fees, and not to copying or delivery costs, which
are authorized by a different statute, HRS section 92-21.
Finally, agencies should record this media request
and any other written requests for records on the UIPA Record
Request Log, which, among other things, will help agencies to
properly respond to record requests and to calculate the amounts
that may be charged to requesters. The Log form and training materials
are available on the UIPA page on OIP’s
website.
For additional guidance, OIP’s attorney of the day may be
reached by e-mailing oip@hawaii.gov or calling 586-1400. For the
latest on open government news, look for these
archived copies of What’s New articles that are posted here,
or e-mailed upon request. To be added to OIP’s e-mail list,
please e-mail oip@hawaii.gov.
Sunshine Law Test and Certification
Now on OIP's Website
March 11, 2013
To kick off Sunshine Week, the state Office of
Information Practices (OIP) is pleased to announce that it has
created another educational and practical tool to help state and
county boards comply with the Sunshine Law. Whether you are a
board member who is required to have Sunshine Law training, an
attorney who advises boards, or a member of the public who wants
to assess your knowledge of the law, OIP’s new online test
is something that you can do at your convenience 24/7. The Sunshine
Law test, along with the law, guides, and other training materials,
are available at no charge on the training
page of OIP’s website at hawaii.gov/oip.
The online test randomly selects ten multiple-choice
or true/false questions about the state’s Sunshine Law,
Part I of HRS Chapter 92. People who correctly answer at least
seven questions will receive an automatically generated certificate
showing their successful passage of the test. The correct answers
and explanations for each question will also be provided. Following
the test, people are encouraged to respond to OIP’s user
survey, the results of which will help OIP continue to improve
services to government agencies and the general public.
For the latest on open government news, please look
for these archived copies of What’s New articles that are
posted here, or e-mailed upon request. To be added to OIP’s
e-mail list, please e-mail oip@hawaii.gov.
Preliminary Results of the
UIPA Master Log
February 14, 2013
The state Office of Information Practices (OIP)
applauds the 88 agencies (representing 13 state executive departments/offices
and the Judiciary) that have uploaded their UIPA Records Request
Log semiannual totals to the new Master Log on data.hawaii.gov.
A big shout-out goes to the Department of Health, which has 51
agencies reporting on the Master Log. The other departments reporting
so far are Accounting and General Services; Attorney General;
Budget and Finance; Business, Economic Development and Tourism;
Commerce and Consumer Affairs; Education; Labor and Industrial
Relations; Land and Natural Resources; Public Safety; and Transportation;
as well as the Judiciary and OIP.
OIP recognizes the obvious problems with the summaries
of data that have been posted onto the Master Log so far and is
working to correct them. There are also obvious reporting problems
that OIP will be contacting agencies to correct, such as the numbers
of lawsuits filed and fee waivers granted, which should be in
whole numbers.
OIP also understands that the numbers reported
do not reflect the full six-month period from July 1 to December
31, 2012, as the Log was not launched until the fall. Using this
preliminary data, however, it appears that over 301,000 government
record requests were routinely fulfilled by the reporting agencies.
In addition to the routine requests, the agencies reporting so
far had 811 formal requests for records, which entailed a total
of 686 hours of search, review, and segregation time. Of the formal
requests, 141 (17%) were complex cases, 711 (87%) have been completed,
and the median number of days to complete the requests was five
days. Of the completed cases, 308 (43%) were granted in full,
19 (2.6%) were denied in full, 81 (11%) were denied in part, and
the rest were withdrawn, abandoned, or the requester failed to
pay.
OIP looks forward to the Log totals from the remaining
state departments and agencies being uploaded onto the Master
Log at data.hawaii.gov,
so that we can have a much more accurate idea of how Hawaii’s
open records law is working and can help agencies to better comply
with their UIPA responsibilities. Agencies that need training
to use and upload the Log can take advantage of OIP’s convenient
and extensive on-line training available on OIP’s training
page. A two-hour in-person presentation is also available
for those departments that want to supplement their training for
large groups of employees.
For the latest news regarding
OIP and open government, please look for these archived copies
of What’s New articles that are posted here, or e-mailed
upon request. To be added to OIP’s e-mail list, please e-mail
oip@hawaii.gov.
UIPA Records Request
Log Update
February 1, 2013
The state Office of Information Practices (OIP)
congratulates those who have uploaded their UIPA Records Request
Log totals to the new Master Log on data.hawaii.gov. As of the
end of January, nine departments and 47 agencies had uploaded
their UIPA totals for the period July 1, 2012, through December
31, 2013. Other departments and agencies are also in the processing
of uploading their UIPA totals for that period to comply with
the UIPA’s reporting requirements.
Based on users’ experiences, OIP has
posted a Tip
Sheet for UIPA Log Users on the OIP website’s training
page (http://hawaii.gov/oip/training.html). The Tip Sheet
is a one-page list of helpful tips for (1) completing the UIPA
Record Request Log and (2) uploading agency Log totals onto the
Master Log at data.hawaii.gov.
Tip #1 is “Follow the training guides closely.”
The training guides, located on the OIP’s training page,
take agency users through the process, step-by-step. These training
guides, which feature screen shots and detailed instructions,
have been well received.
Alvin Tamashiro, at the Department of Accounting
and General Services, wrote that “The on-line training materials
are excellent.” Alvin was unable to attend the October training
session, and relied on the on-line materials to learn how to fill
out the Log. Lei Fukumura, at the Department of Commerce and Consumer
Affairs, told OIP that the UIPA Record Request Log helps their
agency comply with the law when responding to record requests.
She added that the Log pointed out a need for agency personnel
to learn more about the UIPA, using the on-line basic training
materials that are also on the OIP’s website.
For the latest in open government news, please look
for these archived copies of What’s New articles that are
posted here, or e-mailed upon request. To be added to OIP’s
e-mail list, please e-mail oip@hawaii.gov.
OIP Creates and Updates
Training Guides and Statutes
January 23, 2013
To explain the new administrative rules for appeals to the State
Office of Information Practices (OIP), which became effective
on December 31, 2012, OIP has created a new Guide
to Appeals to the Office of Information Practices. This
new Appeals Guide summarizes in question and answer format the
main points to know in filing an administrative appeal to OIP
when requests for public records are denied by an agency or when
the Sunshine Law has been allegedly violated by an agency. OIP
has also updated its existing guides on the UIPA and Sunshine
Law to reference the new Appeals Guide, OIP’s administrative
rules, and statutory amendments, and to incorporate the July 2012
and January 2013 amendments into the statutes that are included
with the guides. All updated guides, statutes, and rules can be
found on the Laws/Rules/Opinions
or training pages of OIP’s website
at hawaii.gov/oip.
Finally, thank you to the 17 DOH agencies, the DLIR Appeals Board,
and DCCA’s RICO, who uploaded their UIPA log totals onto
the Master
Log at data.hawaii.gov
as of January 23. Even if your agency recorded no UIPA requests,
the Log totals showing zeroes, as well as the manual input of
your total number of unlogged routine requests, should be uploaded
to the Master Log, so that your agency can show that it has complied
with the UIPA reporting requirement by January 31, 2013. Remember
that detailed training on how to upload your agency’s Log
totals can be found in the UIPA section of the Laws/Rules/Opinions
page or via the training link at hawaii.gov/oip.
For the latest in open government news, please look
for these archived copies of What’s New articles that are
posted here, or e-mailed upon request. To be added to OIP’s
e-mail list, please e-mail oip@hawaii.gov.
UIPA Master Log Tip
January 18, 2013
The state Office of Information
Practices (OIP) would like to congratulate the six Health Department
agencies and one DCCA agency who already uploaded their UIPA Record
Request Log totals onto the Master
Log at data.hawaii.gov.
As a reminder to the other state Executive Branch agencies and
the Judiciary, please remember that your semiannual totals for
the period from July 1, 2012 through December 31, 2012 should
be added to the semiannual Master Log by the end of this month.
OIP recommends that agencies save a copy of their
Log for the first semiannual period as a new file for the annual
period and continue adding data to the new annual Log file, whose
totals will then be uploaded to data.hawaii.gov in July 2013 onto
the Master Log for the annual period. This means that the annual
Master Log will reflect all agencies’ totals for the entire
fiscal year beginning on July 1 and ending June 30, while the
semiannual Master Log will show totals only for the six-month
period beginning on July 1 through December 31.
If you have any questions about the Log or uploading
it to data.hawaii.gov, please call OIP at 586-1400. For the latest
in open government news, please look for these What’s New
articles that are posted here, or e-mailed upon request. To be
added to OIP’s e-mail list, please e-mail oip@hawaii.gov.
OIP Updates Training Materials and Statutes
and
Reminds Agencies to Upload Logs to Data.hawaii.gov
January 10, 2013
The State Office of Information
Practices (OIP) has improved its power point training on how to
use the new UIPA Records Request Log by creating a new video that
adds a voice-over to the power point presentation. OIP has also
updated the power point with voice-over for its basic Sunshine
Law training by including the new provisions enacted in 2012 regarding
permitted interactions and interactive conferences. (See part
I of the video.) Additionally, OIP has updated the UIPA and Sunshine
Law statutes on its website and attached to the Sunshine Law Guide
to reflect the new appeals process established by Act 176, SLH
2012, which went into effect on January 1, 2013. These new and
updated statutes and training materials are posted on OIP’s
website at hawaii.gov/oip, where other
guides and information explaining both the UIPA and Sunshine Law
can also be accessed.
OIP’s online training videos and power point
presentations are tools that Neighbor Island and Oahu agencies
can easily use to efficiently train individuals or groups of employees,
without having to schedule with OIP in-person training sessions
that cover the same information. If the agency has trouble downloading
the materials to its own computers to avoid live streaming delays
or internet connection issues during a training session, please
feel free to contact OIP for assistance in copying the training
materials to a CD, thumb drive, or the agency’s own laptop.
Additionally, between agency training sessions, or if one to ten
employees need a quiet place away from their agencies to be able
to focus on the on-line training materials without other distractions,
agencies may schedule their employees’ use of a computer
and/or projector to study the training at OIP’s office in
downtown Honolulu.
Finally, all state executive branch agencies
are reminded to upload their UIPA Log Totals to the Master Log
on data.hawaii.gov by January
31, 2013. Even if the agency logged no UIPA request, the totals
showing zeroes should be uploaded to the Master Log, so that your
agency can show that it has complied with the UIPA reporting requirement.
Detailed training on how to upload your agency’s Log totals
can be found in the UIPA section of the Laws/Rules/Opinions
page or via the training link
at hawaii.gov/oip.
For the latest in OIP and open government news,
please look for these What’s New articles that are posted
here, or e-mailed upon request. To be added to OIP’s e-mail
list, please e-mail oip@hawaii.gov.
Happy New Year
January 7, 2013
Happy New Year! For those of you who enjoyed
some time off during the holidays, here are a couple of news items
that you may have missed from the state Office of Information
Practices.
The new administrative rules for appeals to OIP
took effect on December 31, 2012. Despite suggestions to increase
the complexity of OIP’s processing of inquiries, which other
testifiers opposed, the new rules continue to reflect the free
and informal nature of OIP’s dispute resolution process
and honor the legislative direction to not turn them into contested
case proceedings. One provision of these rules also describes
the record that will be transmitted by OIP to the circuit court
for judicial appeals from OIP’s decisions under Act 176,
SLH 2012, which went into effect on January 1, 2013. OIP’s
new rules, along with the initial draft, an explanation of the
changes made in the final version, testimonies received, a verbal
recording of the public hearing on the rules, are posted on the
Laws/Rules/Opinions page
of OIP’s website at hawaii.gov.oip.
OIP also posted its Annual Report for the fiscal
year ending June 30, 2012 on the Reports
page of its website. In addition to performance statistics,
the Annual Report contains summaries of OIP’s opinions issued
in FY 2012, as well as a sampling of informal advice provided
through the Attorney of the Day service.
For the latest on OIP and open government
news, please look for these What’s New articles that are
posted here, or e-mailed upon request. To be
added to OIP’s e-mail list, please e-mail oip@hawaii.gov.
OIP's Annual Report
December 28, 2012
The state Office of Information Practices
(OIP) has posted its Annual Report for fiscal year 2012, which
began on July 1, 2011 and ended on June 30, 2012. The full report
can be found on OIP’s website at hawaii.gov/oip/reports.html.
The report shows that in FY 2012, OIP increased by 50% the number
of training materials freely available on its website and, for
the first time, created on-line training videos and power point
presentations with voice-overs that government employees, volunteer
board members, and the general public can conveniently access
24/7. With the basic training on the UIPA and Sunshine Law readily
available on-line, OIP was able to double the number of in-person
training sessions to provide more specialized workshops, including
OIP’s first-ever continuing legal education courses for
attorneys, which were presented on Oahu and the neighbor islands.
By training over 265 attorneys to properly counsel their clients
on open government laws and procedures, OIP is able to efficiently
leverage its four staff attorneys’ time and knowledge.
Besides increased training, OIP more than quadrupled its communications
in order to reach out to the government agencies and general public
with timely information regarding OIP and open government news,
mainly through e-mails and website postings. Additionally, OIP
conducted its first on-line survey of users to learn how it could
improve its services, and was honored to learn that more than
95% (48 of 51) respondents reported being satisfied (30) or very
satisfied (9) with OIP’s services overall.
OIP’s emphasis on training and communication resulted in
greater agency and public awareness of Hawaii’s open government
requirements and a more than 30% increase in requests for OIP’s
assistance in FY 2012, including a 39% increase in attorney of
the day calls. Despite this increased workload, OIP was still
able to issue 25 opinions (2 formal; 23 informal) and reduce its
case backlog by 7%. To reduce uncertainty and potential litigation
concerning agency appeal rights, OIP also successfully obtained
the passage and enactment of its legislative proposal in 2012
to clarify the process and provide a strong standard of review
in judicial appeals challenging OIP’s decisions. Moreover,
OIP obtained passage of its other legislative proposal, which
created two new permitted interactions that will help to promote
greater public participation in government, better communication
between the public and board members, and a fuller understanding
of the issues and various perspectives by board members.
No one person, alone, could have accomplished all that OIP has
done in the past year. OIP Director Cheryl Kakazu Park hopes that
you will join her in applauding OIP’s dedicated staff, who
was recognized as an honoree for the state’s 2012 Team of
the Year: Staff Attorneys Carlotta Amerino, Lorna Aratani, Jennifer
Brooks, and Linden Joesting; Legal Assistant Dawn Shimabukuro;
Administrative Assistant Cindy Yee; and Records Report Specialist
Michael Little. By embracing change and working together as a
team, OIP has been able to efficiently leverage its limited resources
to proactively provide advice, training, and assistance to more
government agencies and the general public, and to fairly balance
competing interests through an informal and free dispute resolution
process that protects the public’s right to know under Hawaii’s
open government laws.
OIP looks forward to another productive year ahead and wishes
everyone a Hauoli Makahiki Hou!
OIP's New Rules
Approved by Governor
December 21, 2012
The new administrative rules on appeals to
the state Office of Information Practices (OIP) were approved
by Governor Neil Abercrombie on December 20, 2012. The rules were
filed with Lt. Governor Brian Schatz’s office on December
21, 2012, and will go into effect on December 31, 2012.
The filed rules, together with a statement explaining
the amendments from the draft rules that were originally proposed
by OIP in November, are posted on the Rules
page of OIP’s website at hawaii.gov/oip. Also added
to the website are the written testimonies of the Honolulu Corporation
Counsel’s office, Society of Professional Journalists, and
Maui County Council Chair Danny Mateo acting in his individual
capacity, which were submitted after the November 15, 2012 public
hearing. OIP’s original proposal, the Impact Statement,
the public hearing notice, a recording of the hearing, and two
other written testimonies remain posted on OIP’s website.
While OIP’s new rules largely concern the
procedures to file an appeal with OIP, they also contain a provision
to define the record that will be transmitted by OIP in an appeal
to the circuit court from an OIP decision, as authorized by Act
176, SLH 2012. This new law, which becomes effective on January
1, 2013 and is codified as section 92F-43, HRS, creates a simple,
reasonable, and uniform process for agencies to obtain judicial
review of OIP decisions relating to the Uniform Information Practices
Act (UIPA) and the Sunshine Law, without requiring OIP or the
requester to be embroiled in the appeal. At the same time, the
new law gives OIP’s decisions more clout by recognizing
their precedential value and setting a high standard of judicial
review, and it discourages agencies from frivolously appealing
or simply ignoring OIP’s rulings.
For the latest on OIP and open government news,
please look for these What’s New articles that are posted
here, or e-mailed upon request. To be added
to OIP’s e-mail list, please e-mail oip@hawaii.gov.
Quick Review:
Sunshine Law Requirements for
Public Meeting Minutes
December 13, 2012
As our holiday gift to you, the state Office
of Information Practices (OIP) has created another practical training
tool, Quick
Review: Sunshine Law Requirements for Meeting Minutes,
which can now be found on OIP’s
training page.
Like the earlier Quick
Review on Sunshine Law meeting notice requirements (see What’s
New for November 14, 2012), this short guide summarizes the content
and other requirements for public meeting minutes, contains helpful
practice tips, and provides links and contact information for
additional help in complying with the Sunshine Law.
For the latest in OIP and open government news, check for these
What’s New articles that are posted here, or e-mailed upon
request. To be added to OIP’s e-mail list, please e-mail
oip@hawaii.gov.
OIP's Public Hearing
Audio Record on Website
November 16, 2012
On November 15, 2012, the state Office of Information
Practices (OIP) held a public hearing on its proposed rules to
adopt administrative procedures for appeals to OIP. The audio
recording of the hearing, which lasted 35 minutes, is posted on
the “Rules” page of OIP’s
website at hawaii.gov/oip. The written testimonies submitted by
two testifiers are also posted on the website, along with the
proposed rules and the impact statement.
OIP will continue to accept late testimony until
next Friday, November 23, 2012. Please mail written testimony
to OIP at 250 South Hotel Street, Suite 107, Honolulu, HI, 96813.
Depending on the comments received, OIP’s
goal is to present the proposed rules, as may be amended, and
the hearing minutes to the Department of the Attorney General
by November 30, 2012, to conduct a final legal review. If approved,
the proposed rules will be given to Governor Neil Abercrombie
for his final approval. Should the Governor grant approval, certified
copies will be filed with the Lt. Governor’s office and,
after ten days, it becomes effective as law.
For the latest on OIP and open government news,
look here on the What’s New page, or
ask to be placed on OIP’s e-mail list for weekly What’s
New updates.
Quick Review of Sunshine
Law
Notice Requirements
November 14, 2012
The state Office of Information Practices (OIP)
has created another practical tool to help Sunshine Law boards.
“Quick
Review: Sunshine Law Meeting Notice Requirements”
can now be found on OIP’s training
page at hawaii.gov/oip.
This short guide summarizes the content and filing
requirements for public meeting notices, contains helpful practice
tips, and provides links and contact information for additional
help in complying with the Sunshine Law.
For the latest in OIP and open government news,
look here on the What’s New page, or
ask to be placed on OIP’s e-mail list for weekly What’s
New updates.
OIP Public Hearing Reminder
November 8, 2012
As a reminder, persons interested in the proposed
rules for appeals to the State Office of Information Practices
(OIP) should attend a public
hearing next week on Thursday, November 15, at 10
a.m. at the Hawaii State Capitol Auditorium.
December 21, 2012 update:
(Click
here if you need to download Windows Media Player)
The proposed rules would establish the procedures
for filing appeals with OIP under (1) the Uniform Information
Practices Act (Modified), HRS chapter 92 (UIPA) and (2) HRS chapter
231 (regarding challenges to the disclosure of Department of Taxation
written opinions). The rules would also establish procedures for
filing an administrative complaint concerning a board’s
failure to comply with the state’s “Sunshine Law,”
Part I of HRS chapter 92. The rules propose procedures for OIP’s
processing and rendering a decision on a complaint or appeal.
Please note that the rules do not
address the procedures for appeals to the courts from OIP’s
decisions, as the new Act 176, SLH 2012 allows. Rather, as page
one of the impact statement explains, the proposed rules “set
forth the procedures for filing an appeal with OIP under either
the UIPA or the Sunshine Law, and OIP’s review and decision
on the appeal.” The impact statement further states, on
page 2, that the “proposed rules govern only the procedures
relating to administrative appeals to OIP, and do not apply to
appeals to the circuit court.” Please review the impact
statement for further explanations about the proposed rules,
or call OIP’s attorney of the day service at 586-1400 if
you have questions.
OIP will not be making a presentation or providing
training at the hearing. Instead, OIP wants to hear from you,
and the hearing is the opportunity for interested persons to present
to OIP their comments or testimony in person. Persons who are
unable to attend or who wish to present additional comments may
mail or deliver written testimony by Friday, November 23, 2012
to the Office of Information Practices, 250 South Hotel Street,
Suite 107, Honolulu, Hawaii 96813.
For the latest in OIP and open government news,
look here on the What’s New page, or
ask to be placed on OIP’s e-mail list for weekly What’s
New updates.
What are "Routine Requests"
that Need Not Be Logged?
October 31, 2012
With the recent deployment of the new UIPA Record
Request Log to the state Executive Branch agencies and the Judiciary,
OIP received several inquiries regarding whether specific types
of record requests their agencies commonly receive are in fact
“routine requests,” which do not need to be recorded
in the Log.
As the Log Instructions state, examples of routine requests include
requests for copies of UH transcripts or DOH vital records (birth
or death certificates, etc). A routine request could also include
requests for agency publications, such as DoTAX instructions for
completing tax forms. In the case of one federally funded agency
that routinely provides (at no charge, due to federal requirements)
personal medical records that are not reviewed or segregated,
Log entries need not be kept. Although these types of routine
requests may but need not be entered in Log, the agencies should
somehow keep track of the total number of routine requests they
receive so that this number can be manually entered into their
Log totals each semiannual reporting period for uploading to the
Master Log on https://data.hawaii.gov.
Any request that requires the agency to send
out a “Notice to Requester” or an “Acknowledgement”
is not a routine request, and should be recorded in the Log. Agencies
should be sending out the notice or acknowledgement if they need
time to search for the record, and whenever the requested record
must be reviewed or segregated.
For more detailed instructions and online
training for the Record Request Log, please see OIP’s UIPA
Record Request Log training
materials. To receive updates on the Log or other OIP and
open government news, look here on the
What’s New page, or ask to be placed on OIP’s e-mail
list for weekly What’s New updates.
Congratulations to Outstanding
State Employees!
October 22, 2012
The state Office of Information Practices (OIP)
congratulates the following state employees, who were given top
honors at the 2012 Governor’s Awards Program
on September 28, 2012, at the State Capitol Auditorium:
State Employee of the Year:
Shail Ako, Accountant, Dept. of Accounting & General Services
State Manager of the Year:
Blayne Hanagami, Workforce Development Hawai’i
Branch Manager, Dept. of Labor & Industrial Relations
State Team of the Year:
REA Team, Dept. of Labor & Industrial Relations
For the first time since the inception of the Team
of the Year Award in 1997, OIP’s team was recognized as
a team honoree. OIP Director Cheryl Kakazu Park hopes that you
will join her in applauding OIP’s staff of seven dedicated
employees: Staff Attorneys Carlotta Amerino, Lorna Aratani, Jennifer
Brooks, and Linden Joesting; Legal Assistant Dawn Shimabukuro;
Administrative Assistant Cindy Yee; and Records Report Specialist
Michael Little. This outstanding team has embraced change while
remaining true to the law and its mission by responding to agencies’
and the public’s needs, balancing public versus private
interests, finding innovative solutions, and cooperating with
other entities to increase efficiencies within and between various
governmental and private entities. In fiscal year 2011-12, OIP’s
team has made things happen, including:
1. Creating OIP’s first courses providing
continuing legal education credits to attorneys in order to
expand their proficiency and teach them how to properly advise
their clients regarding the State’s open government laws;
2. Improving OIP’s website and online training
to better utilize OIP’s limited personnel resources, to
expand its training audience to include the general public,
and to minimize paper, printing, and distribution costs;
3. Increasing communications with the agencies
and general public to provide greater awareness of the State’s
open government laws and to provide timely, fair, and accurate
reports of open government news;
4. Obtaining the passage of two new laws to modernize
the Sunshine Law and to clarify the laws to allow agencies to
timely appeal OIP’s decisions under a high standard of
judicial review; and
5. Creating the new UIPA Record Request Log to assist agencies
in tracking, recording, and uniformly reporting on written requests
for government and personal records, with agency summaries to
be uploaded to OIP’s Master Log on data.hawaii.gov.
No one person, alone, could have accomplished all
that OIP has done in the past year. By working together as a team,
OIP has been able to efficiently utilize its limited resources
to proactively provide advice, training, and assistance to government
agencies and the general public, and to fairly balance competing
interests through an informal and free dispute resolution process,
in order to protect the public’s right to know under Hawaii’s
open government laws. MAHALO NUI LOA and CONGRATULATIONS to OIP’s
hardworking staff!
OIP's MCPE Seminar with the HSBA
to Be Live Streamed on October 19
October 15, 2012
Attorneys, don’t forget to register for this
Friday’s continuing legal education course that the state
Office of Information Practices (OIP) is conducting in collaboration
with the Hawaii State Bar Association (HSBA) to educate attorneys
about important updates in the open government laws and exciting
new procedural and technological changes that will help to make
Hawaii’s state and county governments even more open and
accessible to the public. As there will be no in-person presentations
on the neighbor islands, this course will be broadcast live in
a webinar on the same day, October 19, 2012. The 1.5 hour-long
course is eligible for 1.5 mandatory continuing professional education
(MCPE) credits.
The course will inform attendees about the new Sunshine
Law changes that went into effect in July 2012, as well as the
new law allowing government agencies to appeal from OIP’s
decisions beginning in January 2013. The proposed administrative
rules governing appeals to OIP will also be discussed, along with
recent open government litigation and OIP opinions. Moreover,
the course will explain OIP’s new tool to help agencies
comply with the Uniform Information Practices Act (UIPA)—the
UIPA Records Request Log—and how it fits into Governor Neil
Abercrombie’s new open data initiative and the State’s
new website.
Legal counsel to the state and county agencies as
well as private sector attorneys advising clients that work with
government agencies should become familiar with the new laws and
procedural requirements. The course will be presented in Honolulu
at the State Capitol Auditorium on Friday, October 19, 2012, from
8:30 a.m. to 10:00 a.m., and will also be live streamed on the
internet.
The HSBA’s course charge is $45 for early
registration by government lawyers, $55 for general early registration,
and $70 for late registration after October 17. For more information
and course registration, go to the HSBA’s website at http://www.legalspan.com/hsba/catalog.asp?ItemID=20121001-299250-213434&override=1&PrintPage=1.
Public Hearing Scheduled for Proposed Rules
Regarding Appeals to OIP
October 12, 2012
The State Office of Information Practices (OIP)
will hold a public hearing to adopt new regulations in the Hawaii
Administrative Rules relating to administrative appeals made to
the office. The proposed rules would establish the procedures
for filing appeals with OIP under (1) the Uniform Information
Practices Act (Modified), HRS chapter 92 (UIPA) and (2) HRS chapter
231 (regarding challenges to the disclosure of Department of Taxation
written opinions). The rules would also establish procedures for
filing an administrative complaint concerning a board’s
failure to comply with the state’s “Sunshine Law,”
Part I of HRS chapter 92. The rules propose procedures for OIP’s
processing and rendering a decision on a complaint or appeal.
The hearing will begin at 10:00 A.M. or shortly thereafter on
Thursday, November 15, 2012, at the Hawaii State Capitol Auditorium,
415 South Beretania Street, Honolulu, Hawaii.
All interested persons are urged to attend
the public hearing to present relevant information and individual
opinion for OIP to consider. Persons unable to attend or wishing
to present additional comments may mail or deliver written testimony
by Friday, November 23, 2012 to the Office of Information Practices,
250 South Hotel Street, Suite 107, Honolulu, Hawaii 96813.
Anyone with a hearing impairment who desires to
attend the public hearing may request assistance of a sign language
interpreter. The request may be made in writing (to the OIP address
in the preceding paragraph), or by calling OIP at (808) 586-1400.
The request will need to be received at least seven days before
the hearing is scheduled to start. Additional information or a
copy of the proposed rule changes will be mailed at no charge
upon receipt of verbal or written request to the OIP address,
and are available on OIP’s website at hawaii.gov/oip on
the “Laws/Rules/Opinions” page.
State Launches New Website:
Data.hawaii.gov
October 8, 2012
The state Office of Information Practices (OIP)
is excited to be a part of the initial launch of the State’s
new website, data.hawaii.gov,
which is an important new tool that will help to transform government
and increase public accessibility to public records.
Instead of solely responding to requests for information,
state agencies will be proactively posting public data onto the
state’s new website at data.hawaii.gov. As part of Governor
Neil Abercrombie’s open data initiative, state agencies
have already begun posting machine readable datasets, such as
excel spreadsheets, to data.hawaii.gov where new summaries, charts,
graphs, maps, and other visualizations can be created to fit the
user’s interests. Data.hawaii.gov was opened to the public
for alpha testing on October 4, 2012.
Through data.hawaii.gov, information that was formerly
in the hands of only one agency can now be open and accessible
by anyone, including other agencies, researchers, application
developers, businesses, and other members of the public. Data.hawaii.gov
allows users to view, search, sort, summarize, analyze, combine,
and visualize datasets in a myriad of ways that users want and
find relevant. Therefore, users or application developers can
now take data from different agencies and prepare a whole new
dataset or application that could analyze or present information
from a much different perspective and lead to innovative solutions.
Data.hawaii.gov is based on the same open government platform
as the federal government’s data.gov, where you can find
over 445,000 datasets from over 172 federal agencies and subagencies,
from which approximately 1,500 applications have been transformed
by government or private developers into usable and relevant information.
For example, developers have taken raw datasets to create a mobile
application showing the Food and Drug Administration’s list
of product recalls and safety warnings, with daily updates. The
FDA also has a “DailyMed” application that provides
detailed information about the contents, use, side effects, and
studies of marketed drugs, based on FDA data and labels (package
inserts) and no advertising. Another example are the “Green
Button” web and smartphone applications that help consumers
choose the most economical rate plan for their energy use patterns,
provide customized energy efficiency tips, access tools to size
and finance solar panels, and deliver energy audit software. These
are just a few examples of the wealth of public information that
has been made freely available by the federal government through
data.gov, and will be made available through data.hawaii.gov,
and they give you an idea of what Hawaii could develop on its
website.
Like data.hawaii.gov, the City and County of Honolulu has launched
its own website at data.honolulu.gov.
Both of these new state and county sites are continually posting
additional datasets, which developers are transforming into useful
and relevant information. For example, on the State’s site
at data.hawaii.gov, political candidates’ formerly static
campaign spending and contribution reports are now readily accessible
and can be sorted, filtered, and visualized in countless ways
that users find relevant. If you want to know how much was contributed
to a candidate overall, or only by employers, or for specific
amounts, you can now sort and filter by various categories and
then visualize the results as a table, bar graph, or pie chart.
OIP previously announced its own new tool to help agencies track,
record, and report on UIPA requests for records and will tie into
data.hawaii.gov – the UIPA Record Request Log, which can
be found on OIP’s website at hawaii.gov/oip. As described
in the September 6, 2012 What’s New article, OIP will be
conducting a special training seminar explaining the UIPA and
the Log on October 10, 2012, from 8:30am-12:00pm at the State
Capitol Auditorium. To register for the seminar, please go to
http://www.surveymonkey.com/s/YHGVCSQ.
For the latest on open government
news, look here on the What’s New page, or ask to be placed
on OIP’s e-mail list for weekly What’s New updates.
OIP to Conduct Continuing Legal Education Seminars
for the Hawaii State Bar Association
October 2, 2012
The state Office of Information Practices (OIP),
in collaboration with the Hawaii State Bar Association (HSBA),
will be conducting continuing legal education seminars in October
and November, 2012, to educate attorneys about important updates
in the open government laws and exciting new procedural and technological
changes that will help to make Hawaii’s state and county
governments even more open and accessible to the public.
The seminar will inform attendees about the new
Sunshine Law changes that went into effect in July 2012, as well
as the new law allowing government agencies to appeal from OIP’s
decisions beginning in January 2013. The proposed administrative
rules governing appeals to OIP will also be discussed, along with
recent open government litigation and OIP opinions. Moreover,
the seminar will explain OIP’s new tool to help agencies
comply with the Uniform Information Practices Act (UIPA)—the
UIPA Records Request Log—and how it fits into Governor Neil
Abercrombie’s new open data initiative and the State’s
new website.
Legal counsel to the state and county agencies as
well as private sector attorneys advising clients that work with
government agencies should become familiar with the new laws and
procedural requirements. The first session of
this seminar will be in Honolulu at the State Capitol
Auditorium on Friday, October 19, 2012, from
8:30 a.m. to 10:00 a.m. Future sessions held on the neighbor
islands are in the works for later in October and in November,
with dates to be announced.
This seminar is 1.5 hours long and qualifies for 1.5 hours of
mandatory continuing professional education (MCPE) credit. The
seminar charge is $45 for early registration by government lawyers,
and $55 for general early registration. It is anticipated that
this seminar will be followed next year by HSBA/OIP’s second
seminar, which will focus on the new administrative rules concerning
appeals to OIP that will be promulgated by then. For more information
and seminar registration, go to http://www.legalspan.com/hsba/catalog.asp?ItemID=20121001-299250-213434&override=1&PrintPage=1
OIP Launches the UIPA Records Request Log
September 6, 2012
The state Office of Information Practices (OIP)
is excited to announce the launch of a new tool to help agencies
track, respond to, and report on record requests received under
the Uniform Information Practices Act (UIPA). The UIPA Record
Request Log is an Excel spreadsheet that OIP created to help all
agencies comply with their UIPA responsibilities and timely respond
to written requests for government and personal records.
Next year (2013), State agencies will be required
to semiannually upload their Log summaries to OIP’s Master
Log on the State’s new website at data.hawaii.gov, where
the data can be summarized, sorted, analyzed, and visualized in
countless ways. The objective data compiled by the Log can also
be used to determine the need for possible amendments to OIP’s
administrative rules and to evaluate the costs and benefits of
the UIPA and data.hawaii.gov, which is currently in alpha testing.
The Log can be downloaded from OIP’s website,
where there are also PowerPoint presentations on how to use the
Log, Frequently Asked Questions about the Log, how to upload agencies’
Log totals onto the Master Log at data.hawaii.gov, and how to
register the agency’s Log as a government record under the
Records Report System. Additionally, OIP’s other training
programs, including a PowerPoint presentation explaining the UIPA,
can be found at hawaii.gov/oip/training.html.
Using the materials described above, OIP will be
conducting a special in-person training session
for state agency personnel on Wednesday, October 10, 2012,
from 8:30 a.m. to 12:00 p.m. at the Hawaii State
Capitol Auditorium, with registration
at 8:00 a.m. The first part of this session will go over
the UIPA basics, and the second part will explain how to use and
upload the Log. To register for this seminar, please go to www.surveymonkey.com/s/YHGVCSQ.
For the latest on open government
news, look here on the What’s New page, or ask to be placed
on OIP’s e-mail list for weekly What’s New updates.
OIP Reorganizes Opinions on Website
July 26, 2012
The state Office of Information Practices (OIP)
has reorganized how opinions are grouped and reported on its website.
To be consistent with the reporting period for OIP’s budget
and annual reports, formal and informal opinions are now grouped
on the website by fiscal year (FY), which runs from July 1 until
June 30. FY 2013 began on July 1, 2012, and concludes on June
30, 2013.
Since its inception in 1989, OIP has issued a total
of 848 opinions, of which 334 are formal opinions and 514 are
informal opinions. Unless overturned by court decisions or new
legislation, formal opinions have precedential value as to OIP’s
interpretation and application of the Uniform Information Practices
Act (UIPA) and Sunshine Law. OIP’s website contains a chart,
now listing by fiscal rather than calendar year, all formal
opinions since 1989, with links to the summary and full text
of each opinion. OIP’s website also has a subject matter
index of formal opinions, where users can click on the appropriate
link to do key word searches for relevant UIPA or Sunshine Law
formal opinions.
Because of OIP’s existing body of formal opinions,
informal opinions
are increasingly being rendered because the legal questions raised
by a dispute have often been previously resolved and discussed
in formal opinions. Informal opinions are also issued when the
legal opinion is based upon specific facts that limit the opinion’s
usefulness for general guidance purposes. Informal opinions are
not relied upon as precedent by OIP in issuing its formal opinions.
Summaries of OIP’s informal opinions since FY 2009 can be
found on OIP’s website; informal opinion summaries before
that year are found in the annual reports, which have been posted
on OIP’s website since 2000.
Finally, please note that a sentence in the first
paragraph of last week’s What’s New article, originally
sent on July 19, 2012, has been corrected on OIP’s website
as follows: “OIP issued 25 total opinions in FY 2012 (including
two formal opinions), as compared to 33 in FY 2011 (including
five formal opinions).”
For the latest on open government news, look
here on the What’s New page, or ask to be placed on OIP’s
e-mail list for weekly What’s New updates.
OIP Reduces Case Backlog
July 19, 2012
The state Office of Information Practices is pleased
to announce that it has steadily decreased its case backlog for
the second year in a row. OIP ended fiscal year 2012 on June 30,
2012, with 78 outstanding cases, a 9% decrease from the 84 cases
outstanding in FY 2011, and a 64% decrease from the 121 cases
outstanding in FY 2010. OIP issued 25 total opinions in FY 2012
(including two formal opinions), as compared to 33 in FY 2011
(including five formal opinions). The number of attorney of the
day inquiries received by OIP increased to 937 in FY 2012, as
compared to 822 in FY 2011.
Besides reducing its case backlog, OIP will continue
its proactive efforts to provide training and guidance to government
agencies to improve compliance with Hawaii’s open government
laws and try to prevent problems from arising in the first place.
As mentioned in earlier What’s New articles, OIP has updated
its Sunshine Law
Guide to reflect changes to the law that went into effect
on July 1, 2012. OIP is also working on updates to its on-line
training videos, as well as developing new materials, including
continuing legal education programs.
Teleconferencing Bill Is Signed
July 9, 2012
On July 3, 2012, Governor Neil Abercrombie signed
into law S.B.
2737, as Act 202, which allows boards to conduct meetings
by “interactive conference technology,” including
teleconferences that have no video component. The Office of Information
Practices has revised its online Sunshine
Law Guide (see "Telephonic and Videoconference Meetings"
on page 8 of the guide) to reflect the new law.
For the latest facts and news about open government,
look here on the What’s New page, or ask to be placed on
OIP’s e-mail list for weekly What’s New updates.
OIP's Bills Are Enacted!
July 2, 2012
The state Office of Information Practices (OIP)
is pleased to announce that Governor Neil Abercrombie signed into
law two important open government bills.
Act
176, signed on June 28, 2012, enacts S.B.
2858, S.D. 1, H.D. 2, C.D. 1. The new law creates a simple
and uniform process for agencies to obtain judicial review of
OIP decisions relating to the Uniform Information Practices Act
(UIPA) and the Sunshine Law, without requiring OIP or the requester
to be embroiled in the appeal. At the same time, the law gives
OIP’s decisions more clout and discourages agencies from
frivolously appealing or simply ignoring OIP’s rulings.
These changes take effect on January 1, 2013.
Act
177 was also signed into law the same day by Governor Abercrombie,
and it enacts S.B.
2859, S.D. 1, H.D. 2, which creates two new permitted interactions
under the Sunshine Law. One new permitted interaction would allow
board members to receive testimony and ask questions at public
meetings that must be cancelled due to a lack of quorum, provided
that they make no decisions and thereafter report to the full
board. The second new permitted interaction is similar to an existing
provision that applied only to neighborhood boards. Less than
a quorum of any Sunshine Law board’s members can now attend
and discuss board business at seminars, conferences, informational
meetings, legislative hearings, and other eetings, again provided
that they make no decisions and thereafter report to the full
board. Both of these new permitted interactions went into effect
on July 1, 2012, and will help to promote greater public participation
in government, better communication between the public and board
members, and a fuller understanding of the issues and various
perspectives by board members.
A third bill, S.B.
2737, S.D. 1, H.D. 2, C.D. 1, has not yet been signed by the
Governor, but is not intended to be vetoed. This bill amends the
Sunshine Law to allow teleconferences and eliminates the need
for video coverage. The law also creates a new exception to make
it easier for disabled members to attend a board meeting from
a private location. As this bill should be signed shortly, it
will retroactively take effect as of July 1, 2012.
OIP has updated its Sunshine Law guides and the
law on its website to reflect the changes described above. For
the latest facts and news about open government, look here on
the What’s New page, or ask to be placed on OIP’s
e-mail list for weekly What’s New updates.
Records Report System Reminder
June 14, 2012
The state Office of Information
Practices (OIP) administers the Records Report System (RRS) as
part of its duties under the Uniform Information Practices Act
(UIPA). To inform the public as to the types of records being
kept by the government, OIP administers this on-line database
containing a description of over 29,000 titles of government records.
The RRS can be accessed at OIP’s website at hawaii.gov/oip,
while the actual records are maintained by the agencies, not OIP.
The agencies are required to report to OIP the
titles of the records that they maintain and provide the following
information:
- how the record is stored and retrieved;
- the title, business address, and telephone number
of the officer in charge of the record;
- the retention period for the record;
- whether the record is publicly accessible, confidential,
or confidential/conditional;
- whether it is a personal record;
- the legal authority for maintaining the record;
- uses of the record and the categories of routine
users of the record.
Each record title is then assigned a unique RRS
number and the data is posted to the RRS database for public viewing.
Agencies are reminded to update the RRS with their
UIPA statistical reports and any new record titles that may have
been created, by July 1, 2012. Training to enter such data into
the RRS can be found on the RRS
page for agencies at hawaii.gov/oip, where you will find various
materials, including:
(1) Login Request Form
(2) Agency
Training Guide: How to Report and Update Agency Records
(3) Guide
to the 10 RRS Reports for Agency Users
A guide for agency users to create RRS reports that will sort
and organize the information in a department's RRS records,
including by retention and by access class. The guide also suggests
ways to use the reports to manage records and information.
(4) Annual
Update Kit
The update kit includes the “Report of Statistical Information
Required by the UIPA, Section 92F-18(b)(12)” and the “Log
of Written Requests for Access to Agency Records,” which
collect information about the number of UIPA requests and lawsuits
filed and how they were resolved. OIP will be implementing a
new log to collect such data in the near future, but the existing
Report and Log should continue to be filed for the 2012 fiscal
year ending on June 30, 2012.
For the latest facts and news about open government,
look here on the What’s New page, or ask to be placed on
OIP’s e-mail list for weekly What’s New updates.
OIP Begins Tracking
Its Website Statistics
May 30, 2012
As the state Office of Information Practices (OIP)
has increased its efficiency and audience by offering more training
and advice through its website at hawaii.gov/oip,
OIP has sought to objectively measure the effectiveness of its
efforts. Thus, OIP recently began using a free internet program
(StatCounter.com) to understand how its website is being used
by others and could be improved. Here are some early results from
the webstat program for the week of May 21-27, 2012, which excludes
OIP’s own usage of its website:
1. The number of visitors to OIP’s website during the week
totaled 430.
2. On a typical mid-week day (Wednesday, May 23, 2012), the site
saw 84 visitors.
3. During the week, 96% of the visits were from the United States,
with the rest from India, Canada, the Philippines, Germany, Japan,
France, Peru, and the United Kingdom.
4. The most visited pages were the OIP home page, the UIPA page,
Sunshine Law, Forms, and Opinion Letter Summaries. Other pages
with multiple visitors were the Formal Opinions page, Reports,
Related Links, and What’s New.
5. The downloads most often clicked were the Formal Opinion Subject
Index; the Notice to Requester form; the Request to Access a Government
Record form; Open Records: Guide to Hawaii’s Uniform Information
Practices Act; Index of OIP Formal Opinions; Open Meetings: Guide
to the Sunshine Law; and the Acknowledgment to Requester form.
Other downloads included the Request for Assistance to OIP form;
Open Meetings: Guide to the Sunshine Law for Neighborhood Boards;
and dozens of individual OIP opinion letters.
For the latest on open government news and facts, look here on
the What’s New page, or ask to be placed on OIP’s
e-mail list for weekly What’s New updates.
Sunshine Law Meetings
Can Be Teleconferenced
May 8, 2012
On May 1, 2012, the Hawaii Legislature passed out
SB
2737, S.D. 1, H.D. 2, C.D. 1, which expands the Sunshine Law’s
videoconference provision to allow teleconference meetings, thus
eliminating the need for video coverage. SB 2737 drops the current
requirement in HRS section 92-3.5 that a board have both an audio
and video connection among all locations to begin a public
meeting, and it would now allow board meetings by audio connection
alone.
The bill generally retains the existing requirement
that members attend a meeting only from public locations
listed in the notice; however, the bill does create an exception
allowing “a board member with a disability that limits or
impairs the member's ability to physically attend the meeting”
to attend via teleconference or videoconference from a private
location not open to the public. A disabled member attending from
a private location must identify the location and any persons
present at that location with the member.
The bill uses the term “interactive conference
technology” to describe the type of connection to be used,
and defines it to include videoconference, teleconference, and
voice over internet protocol. As a practical matter, since OIP
already interprets the current requirement of an audiovisual or
audio connection to include voice over internet protocol or other
web-based connections, the new definition does not break new ground
as far as what conference technologies boards may use to achieve
an audio-video or audio connection between meeting sites.
Finally, because the initial proposal was introduced
as an Administration measure to reduce fiscal and time constraints
and to enable the mostly volunteer boards in our multi-island
state to meet their quorum requirements and conduct their business,
the Governor is expected to sign the bill, which would go into
effect July 1, 2012.
For the latest on open government news and facts,
look here on the What’s New page, or ask to be placed on
OIP’s e-mail list for weekly What’s New updates.
Electronic Notice Bill Fails and Additional
Senate Comments Regarding Appeals
May 4, 2012
On the last day of the 2012 session, the Hawaii
State House of Representatives recommitted a bill requiring the
official Sunshine Law meeting notices to be electronically posted.
H.B.
2404, H.D. 1, S.D. 2, C.D. 1 failed to pass final reading
in the House, and thus, boards must continue to file their official
meeting notices in paper format with the Lt. Governor’s
office. Under the Governor’s existing Executive Order, state
boards are also still required to electronically post their meeting
notices on the state calendar.
What further died with the bill were the Senate’s
proposals to require, within 30 days of a public meeting, the
electronic posting of meeting minutes and written materials that
had been presented to the board at the meeting. Moreover, the
conference draft of H.B. 2404 contained additional provisions
that were strongly opposed by the newspapers, namely, the eventual
elimination of the requirement under HRS Section 1-28.5 for the
newspaper publication of legal notices, such as notices to creditors,
requests for proposals, foreclosure sales, name changes, and summons.
Because this newspaper publication requirement does not apply
to the Sunshine Law, which is Part I of HRS Chapter 92, boards’
meeting notices must continue to be filed under the existing Sunshine
Law provisions as described in the opening paragraph above.
With respect to OIP’s appeals bill, the Senate
Judiciary and Labor Chair, Senator Clayton Hee, submitted for
inclusion in the Senate Journal the attached comments on S.B.
2858, S.D. 1, H.D. 2, C.D. 1. His comments are consistent
with those of the House Judiciary Chair, Representative Gilbert
Keith-Agaran, and reflect the common legislative intent behind
passage of that bill. Both legislators’ comments can be
found on OIP’s website under 2012
Legislation on the Laws/Rules/Opinions page.
For the latest on open government news and facts,
look here on the What’s New page, or ask to be placed on
OIP’s e-mail list for weekly What’s New updates.
OIP's Bills Are Passed!
May 1, 2012
The state Office of Information Practices (OIP)
is celebrating the final passage of two key open government bills
and wishes to thank all of those who worked hard on this important
legislation, particularly the Judiciary chairs, Senator Clayton
Hee and Representative Gilbert Keith-Agaran, and their staffs.
Rep. Keith-Agaran’s insightful comments that he submitted
for inclusion in the House of Representatives’ Journal during
today’s final reading of the appeals bill are posted on
OIP’s website on the 2012
Legislation page.
The first bill creates a simple, timely, and uniform
process for appeals by agencies of OIP decisions relating to the
Uniform Information Practices Act (UIPA) and the Sunshine Law.
Under S.B.
2858, S.D. 1, H.D. 2, C.D. 1, agencies have 30 days to exercise
this new right to expedited judicial review and will have to overcome
a high standard of review that would require them to prove that
OIP’s challenged decisions are palpably erroneous on the
facts and law before they could be overturned. Neither OIP nor
the requester are required parties to an appeal, so they will
not become unwillingly embroiled in litigation and an agency cannot
win its appeal simply by default if OIP or the requester choose
not to litigate.
An agency must also put its best case before OIP
and not wait until it is in court to present a serious argument,
because a subsequent judicial appeal will be limited to the record
before OIP, unless there are extraordinary circumstances warranting
the court’s consideration of new information on appeal.
With respect to a UIPA decision mandating disclosure of government
records, an agency that fails to timely appeal will be unable
to challenge OIP’s decision if the requester files a subsequent
enforcement action and, under existing law, the agency will be
liable for reasonable attorney fees and costs if the enforcer
prevails. Thus, while the bill gives agencies a new right to appeal,
it also gives OIP’s decisions more clout and discourages
agencies from frivolously appealing or simply ignoring OIP’s
rulings.
Media and “good government” groups had
rallied around a former journalism professor’s opposition
to the bill on the basis that when the UIPA was written 24 years
ago, it clearly was not intended to allow agencies to appeal from
OIP’s decisions mandating the disclosure of records. OIP
agrees that the UIPA was not originally intended to allow agency
appeals, and indeed, OIP vigorously advocated that very same argument,
which the courts rejected in a 2009 Intermediate
Court of Appeals’ decision that the Hawaii Supreme Court
affirmed. Even if the Legislature acted, as opponents
urged, to overturn the courts’ ruling and made
it even clearer that agency appeals were not allowed, these opponents
fail to realistically acknowledge that, at the same time, the
Legislature undoubtedly would have imposed severe limitations
to counterbalance the absolute power that opponents sought for
OIP and would have instead required OIP to follow something
similar to judicial or contested case procedures.
Given the State’s shaky fiscal condition,
it is also questionable whether such additional procedural
restrictions would have been accompanied by the substantial and
ongoing increase in government funding that OIP would have needed
for more staff and resources. Moreover, by turning OIP
into a nonreviewable body that would nevertheless be subject to
litigious, time-consuming, and complicated contested case procedures,
OIP could no longer be a free, expeditious, and simple
alternative to the courts that also provides training and advice
in response to over 800 annual inquiries from agencies and the
public. Fortunately, the Legislature instead decided upon
a balanced and reasonable solution that allows OIP to
continue its work to informally, impartially, and expeditiously
resolve disputes between the public and agencies, without the
need for agencies or the public to retain expensive legal representation
in lengthy and complex quasi-judicial proceedings.
The second bill passed this year is S.B.
2859, S.D. 1, H.D. 2, which creates two new permitted interactions
under the Sunshine Law. One new permitted interaction would allow
board members to receive testimony and ask questions at public
meetings that must be cancelled due to a lack of quorum, provided
that they make no decisions and thereafter report to the full
board. The second new permitted interaction would allow less than
a quorum of board members to attend and discuss board business
at seminars, conferences, informational meetings, legislative
hearings, and other meetings, again provided that they make no
decisions and thereafter report to the full board. Both of these
new provisions will help to promote greater public participation
in government, better communication between the public and board
members, and a fuller understanding of the issues and various
perspectives by board members.
Still pending is a third key piece of open government
legislation that would, among other things, provide for electronic
notification of meeting notices and require the electronic posting
of meeting minutes and board materials within 30 days of a public
meeting. H.B.
2404, H.D. 1, S.D. 2, C.D. 1 is scheduled for final reading
on May 3, 2012.
For the latest facts and news about open government,
look here on the What’s New page, or ask to be placed on
OIP’s e-mail list for weekly What’s New updates.
Sunshine Law Modernization Bill
To Be Decked for Final Reading
April 27, 2012
The state Office of Information Practices (OIP)
is pleased to report that the Senate Judiciary and Labor Committee
has agreed to the House’s last version of OIP’s Sunshine
Law bill, which clears the way for final reading of S.B.
2859, S.D. 1, H.D. 2. This bill will create two new permitted
interactions, which would (1) allow testimony to be received at
a meeting cancelled due to lack of quorum and (2) allow less than
a quorum of board members to attend informational meetings or
presentations on matters relating to board business, including
a meeting of another entity, legislative hearing, convention,
seminar, or community meeting. Adequate safeguards are also provided
in the bill to prevent board members from committing to vote or
making decisions, unless they are at a duly noticed public meeting
of the board. The addition of these new permitted interactions
will help to improve communication between board members and the
public, to increase public participation in government, and to
enhance board members’ understanding of board issues and
various perspectives.
The proposal for a third, new permitted interaction,
with safeguards to monitor and regulate social media usage by
boards and their members, was not included in the final bill.
Nevertheless, as OIP has previously advised in its March 30, 2012
What’s New article (see below), board members should continue
to be cautious about using social media to communicate with each
other regarding board business.
Finally, as reported yesterday, the conference committee
passed out OIP’s appeals bill, S.B.
2858, S.D. 1, H.D. 2, C.D. 1, which will be decked for final
reading.
For the facts and the latest
on open government news, look here on the What’s New page,
or ask to be placed on OIP’s e-mail list for weekly What’s
New updates.
OIP's Appeals Bill Passed
Out of Conference Committee
April 26, 2012
The state Office of Information Practices (OIP)
is pleased to announce that legislation providing a simple, timely,
and uniform appeals process under both the Uniform Information
Practices Act (UIPA) and the Sunshine Law was passed out of the
conference committee today and will go to the full Legislature
for final reading. S.B.
2858, S.D. 1, H.D. 2, C.D. 1 will (1) eliminate the need for
continued litigation over jurisdictional issues concerning both
laws administered by OIP, (2) give the courts clear direction
to uphold OIP’s decisions unless they are palpably erroneous,
(3) allow agencies to judicially appeal without requiring OIP
or the public to be embroiled as unwilling parties in such litigation,
(4) prevent agencies from indefinitely ignoring OIP’s decision
mandating disclosure of records as they will be under a 30-day
deadline to file an appeal or be bound by a decision, and (5)
help OIP resolve disputes and assist the public in obtaining government
records in a free, informal, and timely manner.
Opponents of the bill have argued that the bill
weakens OIP while other opponents have argued that the bill gives
OIP too much power. Supporters and those who have actually read
and understand the bill and the history behind it know that the
bill reasonably balances these two diametrically opposed positions
by recognizing agencies’ limited right to appeal while instructing
the courts to defer to OIP’s decisions under both laws.
The passage of this bill will also clear the way for OIP to finalize
its appeals rules, which have been placed in doubt since the decision
in County of Kauai v. OIP, 120 Haw. 34, 200 P.3d 403
(Haw. App. 2009) (summarily affirmed by the Hawaii Supreme Court
on June 23, 2009).
In the Kauai case, which took four years
to resolve, the County directly sued OIP and appealed from an
OIP decision mandating the disclosure of executive session minutes.
OIP vigorously argued that its disclosure decision was made under
the UIPA, not the Sunshine Law, and that the County lacked standing
to appeal because the UIPA did not give government agencies a
right to appeal an OIP determination mandating disclosure of government
records. Kauai, 120 Haw. at 38-39, 41, 43, 200 P.3d at
407-08, 410-11. Nevertheless, the courts rejected OIP’s
jurisdictional arguments and reasoned that both laws applied in
that case and that the “plain” language of the Sunshine
Law allowed “’any person,’ including County”
to sue. Id. at 43-44, 200 P.3d at 412-13.
The Kauai decision arguably made the UIPA’s
deliberate omission of an agency appeal process largely irrelevant.
Many, if not most, UIPA decisions involve OIP’s analysis
of the Sunshine Law and other statutes that affect access to specific
information or records, such as the confidentiality provisions
regarding taxes, competitive bids, utility bills, traffic accident
reports, and countless other laws. Under the Kauai decision,
the appellate procedures found in other statutes would arguably
supercede the UIPA so that agencies would be able to find jurisdiction
in other laws to appeal OIP’s decisions mandating disclosure
of records under the UIPA. Rather than continue to litigate this
and other jurisdictional issues in the courts, OIP has sought
legislative clarification of agencies’ appeal rights.
One opponent of SB 2858 claims that the solution
is to have the Legislature make clear that the UIPA controls and
provides no right for agencies to appeal an OIP decision mandating
disclosure of records, as the Legislature clearly intended when
it first enacted the UIPA 24 years ago. Such a proposal, however,
would almost certainly result today in greater restrictions on
OIP’s authority and effectiveness. If OIP, rather than the
courts, is to be the final arbiter of all UIPA decisions, regardless
of any other statutory or constitutional issues involved, then
the Legislature would probably feel obligated to impose additional
restrictions on OIP, such as those found in judicial or contested
case proceedings that entail costly and time-consuming hearings
and procedures, which virtually require attorneys’ involvement
and would increase taxpayer-funded litigation between agencies.
These new restrictions would destroy OIP’s current effectiveness
as a free and informal alternative to court actions, would substantially
slow OIP’s resolution of cases, and would increase litigation
and costs to the public while delaying access to records.
A realistic and reasonable solution has been provided
by SB 2858. OIP can continue to be an effective, free, and informal
alternative to the courts because SB 2858 allows agencies to challenge
OIP’s decisions (and not OIP itself) in expedited judicial
appeals while setting a high standard of review and requiring
the courts to defer to OIP’s expertise. Agencies will no
longer be able to indefinitely ignore OIP decisions and withhold
records mandated to be disclosed because they will have to appeal
within 30 days if they wish to challenge such decisions. If they
do appeal, agencies will have a heavy burden to overcome and prove
OIP’s decision to be palpably erroneous. OIP and requesters
will no longer have to waste limited resources to hire attorneys
to represent them as parties in lengthy and costly appeals. By
providing a clear, simple, and uniform process for agency appeals
under both the UIPA and Sunshine Law, SB 2858 stops the jurisdictional
battles between agencies, enables OIP to move forward on finalizing
its appeal rules, and allows OIP to continue to freely, informally,
and timely assist the public in obtaining access to government
records.
For OIP’s previous discussions of this bill
and the facts about open government issues, look here on the What’s
New page.
OIP's Streaming Videos
April 25, 2012
The state Office of Information Practices (OIP)
is pleased to announce that its PowerPoint presentations on the
Uniform Information Practices Act and the Sunshine Law, with narration,
are now available as streaming videos at
hawaii.gov/oip/training. The videos can be quickly viewed
in real time, without having to wait to download them first. If
desired, the videos can also be downloaded to your computer, along
with the other written materials that accompany them.
By harnessing technology, OIP has expanded its basic
training to reach more people at times and places convenient to
them, while conserving OIP’s limited staff resources for
more specialized training and other duties.
OIP has also been busy monitoring the conferences on various open
government bills as the Legislature heads into the final days
of the 2012 session.
For the latest news about OIP and open government, look here on
the What’s New page, or ask to be placed on OIP’s
e-mail list for weekly What’s New updates.
HPR Interview
Regarding OIP's Bills
April 10, 2012
Hawaii Public Radio’s Beth-Ann Kozlovich
recently interviewed Director Cheryl Kakazu Park about the Office
of Information Practices’ (OIP) proposed appeals and Sunshine
Law legislation, S.B.
2858 and S.B.
2859. As discussed in that interview, an opponent of S.B.
2858 claims that OIP is giving up its authority while other opponents
argue that OIP is grabbing too much power. In reality, the bill
balances the competing interests of record requesters and agencies
and creates a clear, simple, uniform process that does not drag
OIP or requesters into court but allows agencies to judicially
challenge OIP’s decisions under both laws that it administers,
subject to a strict standard of review that gives appropriate
deference to OIP’s decisions. Also discussed in that interview
was the elimination of the social media provisions in the latest
House draft of SB 2859, which actually does not prevent social
media usage, but has taken away the proposed safeguards to monitor
and regulate such communications by boards and their members.
To listen to the seven-minute interview concerning
the latest House revisions to the bills, which are heading into
conference, go to The Conversation archive for Friday, April 6,
2012 (starting at minute 4:45) at http://www.hawaiipublicradio.org/archive/theconversation.
An in-depth interview about OIP’s powers, duties, resources,
direction, and pending legislation was previously broadcast on
Beth-Ann Kozlovich’s Town Square program on February 23,
2012. The link to that one-hour interview is at http://www.hawaiipublicradio.org/content/town-sqaure-february-23-2012.
For the latest news about OIP and open government, look here on
the What’s New page, or ask to be placed on OIP’s
e-mail list for weekly What’s New updates.
House Finance Committee
Passes Out OIP's Appeals Bill
April 3, 2012
The state Office of Information Practices (OIP)
is pleased to report that the House Finance Committee has voted
to pass out of committee OIP’s proposal to clarify the appeals
process for agencies under both the Uniform Information Practices
Act (UIPA) and the Sunshine Law, as S.B.
2858, S.D. 1, H.D. 2. The committee amended the bill to include
an effective date of July 1, 2030 to ensure that it will go into
conference.
At the March 30, 2012 decision-making on the bill,
the House Finance Committee rejected a proposal to preclude agencies
from bringing judicial appeals under either the Sunshine Law or
the UIPA. The member of the public who suggested the no-appeal
amendment had argued that the bill was weakening OIP’s power,
contrary to the UIPA’s original legislative intent. Interestingly,
other testimony, primarily from the counties, has argued that
the bill was giving OIP too much power. Actually, the bill is
a realistic and reasonable compromise, which is supported by the
Governor, many departments, agencies, and boards, and open government
groups like the League of Women Voters. The bill is designed to:
(1) create a uniform process under both the UIPA and Sunshine
Law by which agencies may judicially challenge OIP’s decisions,
(2) avoid further litigation over jurisdictional issues, (3) protect
both OIP and requesters from being forced to obtain legal counsel
in order to defend against agency appeals, and (4) recognize the
high standard of review that the courts have already applied in
reviewing OIP’s decisions. Thus, in order to settle contentious
issues concerning agency appeals and to provide a clear and uniform
process to resolve challenges to OIP’s opinions, OIP strongly
supports the passage of this bill.
For updates on this and other open government legislation,
look here on the What’s New page, or ask to be placed on
OIP’s e-mail list for weekly What’s New updates.
House Finance Committee
Passes Out OIP's Sunshine Bill
March 30, 2012
The state Office of Information Practices (OIP)
is pleased to announce that the House Finance Committee unanimously
voted last night to pass out OIP’s Sunshine Bill, S.B.
2859, S.D. 1, with a House Draft 2. The Committee amended
the bill to delete section (f) beginning on page 4, which would
have created a new permitted interaction with various safeguards
to regulate board members’ communications through social
media. Assuming the bill is passed by the entire House, it will
head into conference with the Senate.
If the social media provision is not reinserted
during the conference proceedings, then board members should continue
to be cautious about using social media to communicate with each
other regarding board business. As with any other form of communication,
more than two board members cannot discuss board business through
“tweets” or “postings” outside of a properly
noticed meeting under the Sunshine Law. Depending on the specific
situation, even board members’ status as Facebook “friends”
could be considered unlawful participation in a serial discussion
if the members were writing posts about board business and those
posts automatically showed up in the other members’ news
feeds as posts by friends or tweets from an account the members
were “following.” Assuming no other board member involvement,
however, the Sunshine Law, as currently written, would still permit
social media discussions among board members that do not relate
to board business as well as discussions of board business between
a board member and the member’s constituents or the general
public.
Tonight, the House Finance Committee
will hear S.B.
2858, S.D. 1, H.D. 1, which would create a uniform process
under the UIPA and the Sunshine Law to clarify an agency’s
right to judicially appeal an OIP decision. For updates on these
and other open government legislation, look here on the
What’s New page, or ask to be placed on OIP’s e-mail
list for weekly What’s New updates.
Correcting Misunderstandings
About OIP's Appeals Bill
March 21, 2012
As regular readers of our What’s New articles
know, the state Office of Information Practices (OIP) has kept
you informed of the development and progress of our legislative
proposals, including Senate
Bill 2858, Senate Draft 1, which clarifies the process for
agencies to appeal from OIP decisions under the Uniform Information
Practices Act (UIPA) and the Sunshine Law. Long before the session
even started, OIP explained the challenges, solicited comments,
and provided a detailed summary of its legislative proposal to
clarify the uncertainty surrounding the appeals procedure in light
of a 2009 appellate court decision that allowed an agency to judicially
challenge an OIP decision. Despite OIP’s efforts and the
wealth of information freely available on OIP’s website
at hawaii.gov/oip,
there are still people who have misread S.B. 2858, S.D. 1 and
have urged against its passage.
Quite simply, what happened during the 2009 case
is what OIP is seeking to avoid with its proposed legislation:
government agencies litigating against each other for years at
taxpayer expense, while adversely affecting OIP’s ability
to assist the public and agencies at no cost and in a reasonable
amount of time. As OIP explained in its What’s New articles
and in its testimony before the Legislature, S.B. 2858 will eliminate
the need for continued litigation over jurisdictional issues as
it would provide for a simple and uniform appeals process and
a high standard of review that agencies must meet to judicially
challenge OIP decisions under either the UIPA or the Sunshine
Law. Neither OIP nor the record-requesting member of the public
would be made parties to the new appellate procedure, and thus,
the agency could not win by default if OIP or the requester failed
to appear in the proceeding. The judicial review would be of the
OIP decision itself, rather than a suit against OIP or the requester
personally. Just as a judge is not sued or required to appear
in a case challenging his or her decision, OIP would not be required
to appear as a party in the appeal. Similarly, requesters would
not be named as parties and so would not have to incur attorney
fees and costs, unless they choose to intervene in the appeal,
as requesters and OIP would have the right to do.
For the agencies, the bill finally provides a clear
path to judicially challenge an OIP decision. Currently, the UIPA
does not give the agencies a right to appeal and its legislative
history is clear that agencies should not be suing agencies. Even
the Sunshine Law has no provision expressly giving agencies the
right to appeal from OIP decisions. Although the appellate courts
have recognized the agencies’ right to appeal under its
“any person” standard, OIP did not exist at the time
the Sunshine Law was enacted in 1975 and the “any person”
standard was more likely established by the Legislature to allow
an individual to sue Sunshine Law boards, not to allow the boards
to sue OIP. S.B. 2858, S.D. 1 removes these jurisdictional barriers
by giving agencies an express right to judicially appeal within
30 days of OIP’s decision being challenged. The proposed
House Draft 1 would encourage agencies to timely exercise their
new right rather than ignore an OIP decision rendered in the public’s
favor.
In light of the various changes to each law over
the years, it is time for the Legislature to clarify agencies’
appeal rights under both laws. Since 1998, both the UIPA and the
Sunshine Law have been administered by OIP. Additionally, both
laws have a common purpose. Sometimes, a case will involve disputes
concerning both laws. Thus, both laws should now have the same
appeals procedure as proposed in S.B. 2858, S.D. 1 (soon to be
amended as a House Draft 1).
For the latest information concerning open government news, look
here on the What’s New page, or ask to be placed on OIP’s
e-mail list for weekly What’s New updates.
House Judiciary to Send
Open Government Bills
to Final Committee
March 19, 2012
The state Office of Information Practices (OIP)
is pleased to report that the House Judiciary Committee has voted
to pass house drafts of OIP’s appeals and Sunshine Law bills
on to the House Finance Committee. Also moving on to the Finance
Committee is the Administration’s bill to allow teleconferenced
meetings.
At a House Judiciary Committee hearing held
on March 16, 2012, the appeals bill, S.B.
2858, S.D. 1, was amended at the request of the League of
Women Voters to add a provision clarifying that if an agency does
not timely appeal an OIP decision such that the requester must
go to court to force the agency to comply, then the agency will
not have the opportunity to challenge the decision at that point.
This provision would be a disincentive to keep the agency from
indefinitely stalling and refusing to disclose a record, despite
an OIP determination that disclosure is mandated under the UIPA.
Instead, an agency would be motivated to promptly exercise its
new appeal rights that are being created by S.B. 2858, S.D. 1,
H.D. 1. The bill was further amended by the House Judiciary Committee
to correct the intentionally defective date inserted by the Senate
and it now restores the January 1, 2013 effective date.
The House Judiciary Committee also made minor amendments
OIP’s Sunshine Law bill, S.B.
2859, S.D. 1. Both the appeals and Sunshine Law bills will
go to the House Finance Committee.
At the previous day’s hearing, the House Judiciary
Committee reported out S.B.
2737, S.D 1 with House Draft 1, which makes a major change
to the Sunshine Law’s public meeting requirement. The committee
voted to add the word “public” on page 2, lines 17
and 22, of S.B. 2737, S.D. 1, which would require the Sunshine
Law notice to identify all of the “public locations”
where participating board members will be physically present and
indicate that members of the public may join board members at
any of the “identified public locations.” This amendment
effectively removes the current requirement for all meetings to
allow physical access by members of the public, as board members
would now be able to participate in meetings from the privacy
of their homes. The amendment would also allow board meetings
to be held via webinars or teleconferences where board members
and members of the public would log in or call in to participate
in the meeting. Although the amendment was proposed in order to
accommodate disabled board members, it may have unintended consequences
that could reduce the ability of members of the public, whether
or not disabled, to participate in public meetings. S.B. 2737,
S.D. 1, H.D. 1 will be referred next to the House Finance Committee.
Today, the Senate Committees on Economic Development
and Technology and on Judiciary and Labor will hear H.B.
2404, H.D. 1, relating to the electronic posting of public
meeting minutes.
For the latest on open government news, look here
on the What’s New page, or ask to be placed on OIP’s
e-mail list for weekly What’s New updates.
Hearings on Open Government Bills
March 12, 2012
The House of Representatives has wasted no time
in scheduling important open government bills that crossed over
from the Senate last week. The state Office of Information Practices’
proposals—S.B.
2858, S.D. 1 (appeals bill) and S.B.
2859, S.D. 1 (Sunshine bill)—will be heard by the House
Judiciary Committee this Friday, March 16, 2012, at 2 p.m. On
Thursday, March 15, at 2:00 p.m., the House Judiciary Committee
will hear S.B.
2737, S.D. 1 regarding teleconferenced meetings and S.B.
2233, S.D. 2 appropriating funds to establish a centralized
state website for publication of legal notices and to provide
website access from public libraries.
OIP hopes for your continued support of its proposals,
as well as for its request for additional funding in S.B. 2233,
S.D. 2 to provide necessary training and support for the new electronic
notice requirements proposed by the Senate in S.B.
2234, S.D. 2.
For the latest on open government news, look here
on the What’s New page, or ask to be placed on OIP’s
e-mail list for weekly What’s New updates.
Open Government Bills Pass Half-Way Point
March 8, 2012
Open government proposals, which directly affect
the Office of Information Practices (OIP), Uniform Information
Practices Act (UIPA) or Sunshine Law and have crossed over to
the other house, are as follows:
S.B.
2858, S.D. 1 (OIP’s appeals bill) – establishes
a uniform process to allow government agencies to challenge OIP’s
decisions under the UIPA and Sunshine Law.
S.B.
2859, S.D. 1 (OIP’s Sunshine bill) –
establishes three new permitted interactions and safeguards under
the Sunshine Law to increase public participation by (1) allowing
less than a quorum of board members to attend community events,
Neighborhood Board meetings, legislative hearings, and other meetings;
(2) allowing testimony to be received at meetings cancelled due
to lack of quorum or technical difficulties; and (3) allowing
greater communication with the public through the use of social
media by less than a quorum of board members.
S.B.
2234, S.D. 2 (electronic posting of agendas, minutes,
and meeting materials) – requires all state and county Sunshine
Law boards to electronically post agendas and eliminates need
to file hard copies; requires state (but not county) boards to
electronically post, within 30 days after a public meeting, the
board’s minutes and written materials that were presented
at the meeting. Allows for meeting notification by e-mail. Implicitly
requires (under the UIPA) boards to redact personal, confidential,
or excluded information from meeting materials before electronic
posting. Defective effective date to ensure further discussion,
including how to make electronic postings accessible to disabled
persons.
S.B.
2233, S.D. 2 (electronic notice and appropriations)
– eliminates the requirement for newspaper publication of
legal notices, and appropriates funds for the state to establish
a centralized website for electronic publication of notices and
to provide website access from the public libraries. Through this
bill, OIP intends to seek funds to train agencies and implement
S.B. 2234’s new requirements.
S.B.
2737, S.D. 1 (teleconferenced meetings) – allows
a public meeting to be conducted by audio communication alone,
and requires a meeting to be terminated if audio communication
cannot be maintained at all meeting locations where a board member
is physically present. Also prevents action upon an agenda item
if the visual aids required for that item are not available for
all participants at all meeting locations within 15 minutes after
audio-only communication is used. Does not change the current
law’s requirement to allow the public to join board members
at any of the noticed locations where board members will be physically
present.
H.B.
1611, H.D. 2 (Sunshine Law) – creates a new
permitted interaction allowing any number of board members to
attend a public gathering or community event that does not directly
relate to any specific board matter over which the board is exercising
its adjudicatory, advisory, or legislative function; creates a
second new permitted interaction allowing any number of board
members to attend conferences and seminars; adds e-mail as a method
by which notice of meetings shall be sent.
H.B.
2404, H.D. 1 (electronic posting of minutes) –
requires public meeting minutes to be electronically posted on
a board’s, the state’s, or the county’s website;
also requires hard copies of minutes.
For the latest on open government news, look here
on the What’s New page, or ask to be placed on OIP’s
e-mail list for weekly What’s New updates.
OIP Bills Are Crossing Over
March 2, 2012
Both bills proposed by the state Office of Information
Practices (OIP) will be crossing over from the Senate to the House
as S.B.
2858, S.D. 1 (appeals bill) and S.B.
2859, S.D. 1 (Sunshine bill). The bills were amended as previously
described in OIP’s What's New articles on February 7 and
15, 2012. Because the House Judiciary Committee decided to hold
the companion House bills (H.B. 2596 and H.B. 2597), these Senate
bills will be the vehicles for legislative consideration of OIP’s
proposals.
Also crossing over from the Senate to the House
is S.B.
2234, S.D. 1, which requires all state and county boards to
electronically post Sunshine Law meeting agendas, will be crossing
over from the Senate to the House. S.B. 2234, S.D. 1 additionally
requires state (but not county) boards to electronically post,
within 30 days after a public meeting, the board’s minutes
as well as copies of written materials that were presented to
the board at the meeting (“attachments”). Although
the bill has an otherwise intentionally defective enactment date,
the new requirement to electronically post minutes and
attachments will go into effect this July 1, 2012. OIP
intends to seek additional funding in a related bill, S.B.
2233, S.D. 1, to be able to conduct statewide workshops and
handle increased inquiries about these new Sunshine Law requirements
as well as boards’ Uniform Information Practices Act (“UIPA”)
obligations to redact personal, confidential, or excluded information
from meeting attachments before electronically posting them.
In the meantime, boards may want to study OIP's
existing guides and videos on Sunshine Law and UIPA requirements,
which can be found at hawaii.gov/oip/training.
For information about OIP’s bills’ progress, and other
open government news, look here on the What’s New page,
or ask to be placed on OIP’s e-mail list for weekly What’s
New updates.
OIP Interview on Hawaii Public Radio
February 27, 2012
The state Office of Information Practices’
(OIP) director Cheryl Kakazu Park and staff attorney Jennifer
Brooks were interviewed by Beth-Ann Kozlovich on Hawaii Public
Radio’s Town Square program on February 23, 2012. The in-depth
interview discussed various issues, including a recent records
request made to all state and county agencies as well as OIP’s
powers, duties, resources, direction, and pending legislation.
To listen to the one-hour interview, go to http://www.hawaiipublicradio.org/content/town-sqaure-february-23-2012.
For the latest news regarding OIP and open government,
look here on the What’s New page, or ask to be placed on
OIP’s e-mail list for weekly What’s New updates.
Legislative Update
February 23, 2012
The state Office of Information Practices (OIP)
has been tracking 264 bills pending before the Hawaii Legislature,
and has prepared testimony for 48 of them. OIP’s three highest
priority bills are S.B.
2858 (appeals bill), S.B.
2859 (Sunshine Law bill), and S.B.
2234 (electronic posting bill), all of which are being amended
by the Senate. At yesterday’s joint hearing before the Senate
Committees on Economic Development and Technology and on Judiciary
and Labor regarding S.B. 2234, lead chair Senator Carol Fukunaga
asked OIP to work with other stakeholders to suggest amendments
that would address various technical and legal concerns regarding
this proposal to require electronic posting of meeting agendas
and minutes. Decision-making on S.B. 2234 will take place on February
29 at 9:30 a.m.
While the House Judiciary Committee has held hearings
on OIP’s companion bills (H.B.
2596 and H.B.
2597), it decided to hold those bills in order to work with
the Senate drafts that are expected to cross over to the House.
The House Judiciary Committee has also heard and, due to substantial
opposition, decided to hold H.B.
2742, which would have exempted the county councils from the
Sunshine Law. During Tuesday’s hearing on H.B. 2742, Maui
councilmembers raised specific concerns that the Sunshine Law
unduly restricts their ability to utilize social media and to
attend other meetings with community groups and constituents.
As OIP responded, however, these concerns have been addressed
in S.B. 2859, S.D. 1, which contains adequate safeguards while
allowing for better gathering and sharing of information as well
as increased public participation.
For the latest on open government news, look here
on the What’s New page.
OIP Bills Advancing
February 15, 2012
The bills proposed by the state Office of Information
Practices (OIP) will be advancing as S.B.
2858, S.D. 1 (appeals bill) and S.B.
2859, S.D. 1 (Sunshine bill). The House Judiciary Committee,
chaired by Representative Gilbert Keith-Agaran, decided to hold
the companion House bills (H.B.
2596 and H.B.
2597) in order to work with one set of bills when the Senate’s
bills move over to the House.
Both Senate bills are single referrals to the Senate
Judiciary and Labor Committee (JDL) chaired by Senator Clayton
Hee and were passed out of committee. At the JDL decision making,
the committee decided to pass out S.B. 2858 with amendments requested
by the League of Women Voters to place a 30-day time limit for
agencies to file a judicial appeal from an OIP decision. The time
limit is similar to those already found in current court rules.
JDL also voted to pass S.B. 2859 with amendments
that would clarify that the board must provide only the social
media addresses or identifications used for board discussions
subject to the Sunshine Law and not those relating to board members’
personal usage. The JDL committee’s amendments would also
remove the electronic notice provisions of the original bill,
beginning on page 6, line 15 through page 11, line 20. These provisions
will instead be addressed in S.B.
2234, which is another bill requiring electronic posting of
meeting agendas and minutes. S.B. 2234 has been jointly referred
to JDL and the Senate Economic Development and Technology Committee
(EDT) chaired by Senator Carol Fukunaga, and is scheduled to be
heard on Wednesday, February 22, 2012, at 9:30 a.m.
OIP appreciates the widespread support that its
bills have received and will keep you informed of their progress
here on the What’s New page.
OIP's Bills' Status
February 7, 2012
The state Office of Information Practices (OIP)
is pleased to report that the Senate Judiciary and Labor Committee
(JDL), chaired by Senator Clayton Hee, voted today to advance
SB
2858, SD 1, which establishes a clear, new appeals
process for government agencies to judicially challenge OIP’s
decisions. At the request of the League of Women Voters, JDL amended
the bill to include a 30-day time limit for agencies to file an
appeal from an OIP decision, and a deliberately defective effective
date was also added to ensure that the bill will go into conference.
In order to work out some logistics with another
Senate committee, JDL deferred decision making on OIP’s
other bill, SB
2859 relating to Sunshine Law revisions, until Thursday,
February 9, 2012, at 9:30 a.m. in conference room 016. OIP remains
hopeful, however, that JDL will ultimately pass out SB 2859, with
revisions.
This Friday, February 10, 2012, at 2:00 p.m., the
House Judiciary Committee, chaired by Representative Gilbert Keith-Agaran,
will be hearing OIP’s companion bills, HB
2596 (appeals bill) and HB
2597 (Sunshine bill).
OIP would like to thank all of the government departments,
agencies, and boards along with the public interest groups and
private sector organizations that testified in support of OIP’s
bills in the Senate, and we hope that you will do the same in
the House this Friday. By pulling together as a team, we can improve
Hawaii’s open government laws to enhance government efficiency
and cost savings while effectively protecting the public’s
right to transparency and increasing public participation in government.
MAHALO!
Senate Hearing on OIP's Bills
This Thursday, 2/2/12
January 30, 2012
The Office of Information Practices’ (OIP)
two bills will be heard by the Senate Judiciary and Labor Committee
(Senator Clayton Hee, Chair) this Thursday,
February 2, 2012, at 9:30 a.m. in Conference Room 16 at
the State Capitol.
Click
here for detailed summaries of SB 2858
(appeals; companion to HB 2596) and SB
2859 (Sunshine Law; companion to HB 2597). Links to bill
status and bill text are immediately
below in the January 24 What's New.
OIP hopes to have widespread support for these bills.
OIP’S 2012 Legislative Bills Introduced
January 24, 2012
The state Office of Information Practices is pleased
to announce that its two legislative proposals are in Governor
Neil Abercrombie’s administration package and have been
introduced in the 2012 legislative session.
One proposal, introduced as HB 2596 and SB 2858,
seeks to clarify the right of government agencies to appeal
to the courts an OIP determination that mandates the disclosure
of records under the Uniform Information Practices Act.
The second proposal, introduced as HB 2597 and SB
2859, seeks to modernize the Sunshine Law by
providing for the electronic filing of public meeting notices
and establishing three new permitted interactions, including one
regarding social media usage.
HB 2596 (Appeals) - link to bill
status; link to bill text
SB 2858 (Appeals) - link to bill
status; link to bill text
HB 2597 (Sunshine Law) - link to
bill
status; link to bill text
SB 2859 (Sunshine Law) - link to bill
status; link to bill text
OIP GUIDANCE ON UIPA
COMPLEX RECORD REQUESTS AND ‘PUBLIC INTEREST’ FEE
WAIVERS
January 18, 2012
The Office of Information Practices (OIP)
is often asked for advice on dealing with particularly large or
complex record requests that agencies receive under the state’s
Uniform Information Practices Act (UIPA), Chapter 92F, Hawaii
Revised Statutes. The fact that a request will require extensive
agency efforts to respond is not, by itself, a basis for the agency
to deny that request; however, OIP’s rules set out at chapter
2-71, Hawaii Administrative Rules, do provide government agencies
with some tools in handling such a request in a way that will
not unreasonably interfere with their normal functions. Although
a complex request may have unique aspects for which an agency
will require individual advice, there are many common issues that
arise for agencies responding to such requests.
OIP has attached and posted online a new Informal
Guide to Processing Large or Complex UIPA Record Requests
that basically compiles general legal advice provided primarily
through OIP’s Attorney of the Day service. Although OIP
has provided references to the relevant rules where appropriate,
this guide is intended as informal advice and is not intended
to replace such sources as the rules themselves, the Impact Statement
for the rules, or formal opinions that have interpreted the rules.
Additional guidelines and forms to respond to record requests
are in OIP’s Open
Records Guide to Hawaii’s Uniform Information Practices
Act, which can be found on OIP’s website at http://hawaii.gov/oip.
Additionally, OIP issued the attached
letter to the American Civil Liberties Union, which provides
guidance as to when the $60 “public interest” waiver
of search, review, and segregation fees should be granted by an
agency under the Uniform Information Practices Act (UIPA). Noting
that nonprofit organizations and public interest groups do not
automatically qualify for the public interest fees waiver when
making records requests under the federal Freedom of Information
Act, OIP concluded that a public interest fee waiver could be
denied under the UIPA when a requester offers merely conclusory
or general statements without sufficient facts to demonstrate
its “primary intention and actual ability to widely disseminate
information.” A requester must further demonstrate that
the requested record pertains to an agency’s operation or
activities; however, the record’s relative importance to
the public is not a factor. OIP will generally decline to review
an agency’s factual determinations and will respect the
agency’s decision as to whether a request for a “public
interest” fee waiver fulfills the criteria set forth in
OIP’s administrative rules. To make the guidance letter
readily accessible, OIP has posted it under the “Openline/Guidance”
section of OIP’s website at hawaii.gov/oip.
OIP’S 2012 Legislative Proposals
January 11, 2012
The state Office of Information Practices is pleased
to announce that its two legislative proposals have been submitted
for inclusion in Governor Neil Abercrombie’s administration
package for the 2012 legislative session.
One proposal seeks to clarify the right of government
agencies to appeal to the courts an OIP determination that mandates
the disclosure of records under the Uniform Information Practices
Act. The second proposal seeks to modernize the Sunshine Law by
providing for the electronic filing of public meeting notices
and establishing three new permitted interactions, including one
regarding social media usage.
Click
here for detailed summaries of these proposals. Once the proposals
are finalized and become available for public distribution, the
bills and future updates will also be posted on OIP’s website.
Please contact oip@hawaii.gov with your comments about the bills,
or send them to OIP at 250 South Hotel Street, Suite 107, Honolulu,
Hawaii 96813.
OIP’S 2011 Annual Report
January 4, 2012
The state Office of Information Practices has released
its annual report for fiscal year (FY) 2011, which began on July
1, 2010, and ended on June 30, 2011. The full report can be found
on OIP’s website at hawaii.gov/oip/reports.html.
Because the annual report is on a fiscal year basis,
it does not describe OIP’s activities for the latter half
of the calendar year. For calendar year 2011, OIP initiated the
following new products and activities:
• Three free on-line training videos regarding
the Uniform Information Practices Act (UIPA) and the Sunshine
Law, which are available 24/7 to anyone
• Continuing legal education seminars in Honolulu, Hilo,
Kona, Kahului, and Wailea, which trained over 265 state and
county government attorneys, as well as private attorneys and
members of the public
• Workshops for board personnel and attorneys on how to
write agendas and minutes complying with the Sunshine Law
• A new online “Agenda Guidance for Sunshine Law
Boards”
• A new online Sunshine Law Guide specifically for Neighborhood
Boards
• Updated online guides for the Sunshine Law and UIPA,
as well as Personnel Guidelines
• The first online survey to determine users’ needs
and satisfaction with OIP’s services
• Weekly e-mails of open government news and OIP’s
updates
• Legislative proposals for the 2012 session
While the annual report shows that OIP’s
budget allocations have decreased every year since FY 2008 and
explains that one staff attorney position was largely unfilled
since FY 2010 due to budget restrictions, OIP has accomplished
more with less in 2011, by effectively using technology and efficiently
leveraging its staff. By proactively educating government personnel--especially
the key legal advisors to the agencies and boards--and by making
the training also available to members of the public and “watchdogs”
through the use of technology, OIP hopes to increase understanding
of and compliance with Hawaii’s open government laws and
to quickly resolve any problems that may arise.
OIP will be busy in the first half of 2012 with
the legislative session and OIP’s proposals to clarify and
modernize Hawaii’s open government laws, which will be discussed
in an upcoming What’s New article. Depending on the legislative
results, OIP plans to work on appeal and other administrative
rules in the second half of 2012 and also hopes to reduce its
backlog of cases then.
OIP looks forward to 2012 and wishes everyone
a Hauoli Makahiki Hou!
Two New Training Videos:
on-line at hawaii.gov/oip
December 20, 2011
As our holiday gift to you, the state Office of
Information Practices is pleased to announce that two new training
videos have been posted on our website at hawaii.gov/oip! One
video provides in-depth training on the Uniform Information Practices
Act, while the other explains the Sunshine Law. Each video is
a PowerPoint presentation with a voice-over and is in two parts,
which will take a total of approximately 1-½ hours to complete.
OIP is using technology to efficiently leverage
its limited resources. These on-line videos provide the same content
that OIP formerly presented in person, and they are now more readily
available 24/7 to all government agencies as well as members of
the public. By asking agencies to first view these videos for
basic training on the open government laws, OIP can more effectively
follow-up with specialized in-person training to answer questions
and focus on agencies’ specific areas of concern.
This will be OIP's final What’s
New for 2011. We’ll be back with more next year. In the
meantime, Mele Kalikimaka and Hauoli Makahiki Hou!
Basic UIPA training
video, part 1 (streaming)
Basic UIPA training video,
part 2 (streaming)
Once a video begins playing, you can download and
save it to RealPlayer by mousing over the video and then clicking
in the upper right on "Download This Video." (If you
need to download the free RealPlayer to your computer, go to www.real.com/realplayer.)
Materials for Basic UIPA
training:
1. UIPA training
slides handout (pdf)
2. UIPA
training Shrimp Board record set (pdf)
3. Open Records: Guide
to Hawaii's Uniform Information Practices Act
(pdf, print in landscape)
4. Open
Records: Guide to Hawaii's Uniform Information Practices Act
COVER PAGE
(pdf)
Basic Sunshine
Law training video, part 1 (streaming)
Basic Sunshine Law training
video, part 2 (streaming)
Once a video begins playing, you can download and
save it to RealPlayer by mousing over the video and then clicking
in the upper right on "Download This Video." (If you
need to download the free RealPlayer to your computer, go to www.real.com/realplayer.)
Materials for Basic Sunshine
Law training:
1. Sunshine
Law training slides handout (pdf)
2. Sunshine Law
training bad agenda (pdf)
3. Sunshine Law
training good agenda (pdf)
4. Agenda guidance
5. Open Meetings:
Guide to "The Sunshine Law" for State and County Boards
(pdf, print in landscape)
6. Open
Meetings: Guide to "The Sunshine Law" for State and
County Boards COVER PAGE (pdf)
OpenLine Newsletter
with Sunshine Law Quiz
December 7, 2011
The Office of Information Practices’ OpenLine
newsletter
for December is now available on the OIP website. This month’s
edition tests your knowledge about the Sunshine Law with a short
quiz. Check it out and see if you can answer all six questions
correctly! Past newsletters are also available on the OpenLine
page.
Also, spaces have filled fast for OIP’s
Workshop Wednesdays on how to write Sunshine
Law meeting agendas and notices using your own
materials as learning tools. If you have not been able to register
for any of the current workshops, please let OIP know that you
are interested and we will try to add new workshop dates next
year. Contact Dawn Shimabukuro OIP by calling (808) 586-1400 or
e-mailing oip@hawaii.gov.
OIP Survey Results
November 30, 2011
MAHALO to those people who responded to OIP’s
first-ever survey of its users! While a more detailed summary,
along with the survey Response Summary and respondents’
comments are linked below, OIP is pleased to announce that 94.1%
(48 of 51) of the respondents reported being satisfied (39) or
very satisfied (9) with OIP’s services overall, and only
three persons (5.9%) were dissatisfied. Moreover, eight (89%)
of the nine people who had requested OIP’s assistance in
obtaining government records or concerning a potential Sunshine
Law violation were satisfied with the help they received from
OIP.
For more survey results, see a more detailed
written summary, the survey questions and responses in a “Response
Summary,” and comments
received from respondents.
Circuit Court Says Governor Must
Release Judicial Nominee Names
Circuit Court Judge Karl Sakamoto orally ruled
on November 14, 2011, that the Uniform Information Practices Act
(“UIPA”) requires Governor Neil Abercrombie to disclose
the names of the judicial nominees who were not selected for appointment
to the Hawaii Supreme Court. Until Judge Sakamoto’s written
decision is filed, the Attorney General has not decided whether
it will appeal the ruling.
Although Judge Sakamoto’s rationale is not yet available,
it appears that his reported conclusion is consistent with OIP’s
conclusion in Opinion
No. 03-03. In that 2003 opinion, OIP had concluded that the
UIPA did not require the Governor to disclose the list of nominees
prior to Senate confirmation because the judicial
appointment process could be frustrated by political maneuvering
and manipulation, but stated in footnote 9 “that the ‘frustration’
exception no longer applies to a List of Nominees maintained by
the appointing authority after Senate confirmation”
(emphasis added) because “there is no conceivable scenario
in which disclosure [at that time] would frustrate the appointing
authority’s ability to make an appointment.”
Because this issue was addressed in an existing
opinion, OIP declined media requests to divert its small staff
resources to render another advisory opinion on the same issue
that would ultimately be appealed and subjected to de novo judicial
review. Instead, as OIP recommended, the Honolulu Star-Advertiser
exercised its right to obtain expedited judicial review of the
denial of its request for the judicial nominee list.
Rather than being tied up in one case that should be decided by
the courts, OIP has been efficiently using its limited resources
to address matters of equal importance to other members of the
public and government agencies and has been creating new, proactive
materials, such as continuing legal education courses, on-line
video training, and agenda guidelines and workshops.
About one-half of the spaces are still available
for Sunshine boards to sign up for the Workshop
Wednesdays (see below) to learn how to prepare meeting
agendas and minutes, which begin on November 30. To register,
please contact Dawn Shimabukuro at (808) 586-1400 or e-mail oip@hawaii.gov.
Agenda and Minutes Workshops
The state Office of Information Practices (OIP) will
be hosting “Workshop Wednesdays” at the State Office
Tower in Honolulu to teach Sunshine Law boards how to properly
prepare public meeting agendas and minutes.
The free, one-hour workshops will be offered to
boards’ secretaries, executive directors, and attorneys,
who will be asked before the workshop to provide a set of their
agendas and minutes that will be shared with the other participants.
At the workshop, an OIP staff attorney will provide comments and
answer questions as to how each board’s agenda or minutes
could be improved. Using a board’s own materials may help
its key personnel to better understand what the Sunshine Law requires
and will provide a practical learning experience.
Workshops will be held on Wednesday, November
30 and December 7, 14, and 21, 2011, from
10:30 to 11:30 a.m. Registration for each workshop will be limited
to twelve Sunshine Law boards.
To register, please email oip@hawaii.gov
or call Dawn Shimabukuro at (808) 586-1400.
Agenda Guidance for Sunshine Law Boards
and Deadline for Maui Seminar
November 2, 2011
The state Office of Information Practices
(“OIP”) is pleased to announce that its new “Agenda
Guidance for Sunshine Law Boards” is now available on
its website at hawaii.gov/oip. The new guide provides Sunshine
Law boards with tips and examples of how to craft a good, informative
agenda that will withstand OIP’s scrutiny by providing the
public with reasonable notice of what the board intends to consider
at a meeting.
Rather than defining the minimum notice required
by law, the guide explains how boards can prepare agendas that
will exceed the legal standards and will give interested members
of the public enough information to decide whether to participate
in a meeting. Additionally, the guide shows how agendas can be
narrowly or broadly crafted to define the topics of testimony
by the public as well as the deliberation and decision-making
by the boards. Moreover, the guide discusses the notice requirements
for executive sessions that are closed to the public, and it provides
sample good and bad agendas as well as a checklist of agenda requirements.
Instead of solely reacting to complaints, OIP has
proactively created the agenda guidance to provide practical,
useful information to help government agencies and boards comply
with the Sunshine Law and the Uniform Information Practices Act
and prevent problems from arising in the first place.
Next week, OIP continues its proactive efforts by
presenting its fifth legal education seminar,
which will take place in Wailuku, Maui on November
10, with the support of the County of Maui’s Department
of Corporation Counsel and the Hawaii State Bar Association’s
Government Lawyers Section. The registration deadline for the
Maui seminar has been extended to Monday, November 7.
See below for more details.
Maui
Seminar
November 10, 2011
The State Office of Information Practices (OIP),
in conjunction with the County of Maui, Department of Corporation
Counsel and Hawaii State Bar Association's Government Lawyers
Section, is pleased to present a FREE
seminar providing useful information for attorneys and non-attorneys
about how to comply with Hawaii’s open government laws.
OIP will present “Ethical
Considerations for Counsel when Advising Sunshine Law Boards”
(1.0 MCPE credit) and "Government Attorneys' Obligations
Regarding Open Records Requirements of the Uniform Information
Practices Act" (1.5 VCLE credits; appealing for MCPE credits).
WHEN: Thursday, November 10, 2011
at 8:30 a.m. to noon
WHERE: Dept. of Corp Counsel, Conf Room 200,
2 High St., Wailuku, HI 96793
TO REGISTER ONLINE: complete
the registration form by Monday, November 7,
2011.
Handouts: MAUI Course Materials for 11/10/11:
Course #1 (Open Records):
UIPA Manual;
UIPA cover;
Shrimp
Board records;
UIPA Powerpoint Handout;
OIP's August 2011
newsletter;
Evaluation;
CLE
Certificate of Attendance.
Course #2 (Ethical Considerations):
Outline for Sunshine based MPCS training;
Sunshine Guide
for state and county boards;
Sunshine Guide cover;
Evaluation;
CLE
Certificate of Attendance.
Kona
Seminar
October 21, 2011
OIP’s seminar in Kona on Friday,
October 21, 2011, is being sponsored
by the West Hawaii Bar Association at the King Kamehameha Kona
Beach Hotel from 9:00 a.m. to 12:30 p.m. OIP will present “Ethical
Considerations for Counsel when Advising Sunshine Law Boards,”
for which attorneys may receive 1.0 MCPE credit. To register,
please contact Carol Kitaoka at csk96750@yahoo.com or call (808)
324-1016.
Handouts: KONA Course Materials for 10/21/11:
Ethical Considerations:
Outline for Sunshine based MPCS training;
Sunshine Guide
for state and county boards;
Sunshine Guide cover;
Evaluation;
CLE
Certificate of Attendance.
Electronic Posting of Meeting Agendas
on State Calendar
Governor Neil Abercrombie issued Executive
Memorandum No. 11-11, which continues the prior practice
of posting meeting agendas electronically on the state’s
online
calendar. Sunshine Law boards, however, are still required
by law to provide physical copies of their meeting agendas with
the Lt. Governor’s office, at least six calendar days
prior to the meeting. As the posting with the Lt. Governor’s
office presently constitutes the official agenda, boards are
reminded to provide that office with any addendums or attachments
that should be part of the official agenda.
Despite unsuccessful past attempts to amend the
law, the Office of Information Practices is considering the
re-introduction of legislation in 2012 to require electronic
posting on the state online calendar by state boards and to
allow electronic posting by county boards. OIP believes that
such use of modern technology would provide more timely, cost-effective,
environmentally friendly, and readily available notice to the
public.
OIP's Reapportionment Commission Ruling:
The state Office of Information Practices has
issued a memorandum opinion in a case challenging the State
Reapportionment Commission’s agendas and members’
participation in its Technical Committee. Based on the specific
facts of that case, the ten-page memorandum opinion concludes
that the Commission did not violate the Sunshine Law by discussing
items on its July 12 and 19, 2011 agendas, by adding an item
to its June 28 meeting, and by members’ participation
in its Technical Committee.
Memorandum opinions provide guidance in limited factual circumstances
or on issues that have already been more fully addressed in
OIP’s formal opinions, and they are not relied upon as
precedent by OIP. Given the length of this particular opinion
and the widespread interest in the Reapportionment Commission’s
work, OIP has chosen to release the entire opinion to the public
rather than merely providing a summary of it on OIP’s
website. The full
memorandum opinion is available here, and a
summary is provided under the informal opinion letter summaries
as S Memo 12-6 for 2011.
Online Survey:
Finally, please don’t forget to participate
in OIP’s online survey. We want to hear from you!
To serve you better and to more effectively utilize
our limited resources, the Office of Information Practices is
asking users to participate in an online
survey. The survey should take only five to ten minutes
to complete. Because OIP would like to consider the information
before finalizing our legislative proposals for 2012, please
respond to the survey by October 10, 2011.
Note: The survey has been extended and will be
open until November 11, 2011.
Mahalo!
OIP Revises Personnel Guidelines
The Office of Information Practices
(OIP) has revised its Personnel
Guidelines (effective September 7, 2011) to assist state
and county agencies in understanding what employment records
must be disclosed under the Uniform Information Practices Act.
State Calendar:
Visit the State
Calendar to view meeting notices of state boards and commissions.
Please note: the State Calendar is maintained by the
Department of Accounting and General Services.
See Executive
Memo 11-11 (September 15, 2011) regarding "Posting
Meeting Notices on the State Online Calendar."
Handouts: HILO Course Materials for 9/30/11
and 10/1/11:
Flyer: September
30 - October 1 HILO flyer (pdf)
Registration is now closed for the HILO
seminars.
Course #1 (Open Records):
UIPA Manual;
UIPA cover;
Shrimp
Board records;
UIPA Powerpoint Handout;
OIP's August 2011
newsletter;
Evaluation;
CLE
Certificate of Attendance.
Course #2 (Open Meetings):
Sunshine Guide for state and county boards;
Sunshine Guide cover;
Shrimp Board bad agenda;
Shrimp Board good agenda;
Sunshine Powerpoint Handout;
OIP's August 2011 newsletter
Evaluation;
CLE
Certificate of Attendance.
Courses #3 (Ethical Considerations):
Sunshine Guide
for state and county boards;
Sunshine Guide cover;
Outline for Sunshine based MPCS training;
OIP's August 2011 newsletter;
Evaluation;
CLE
Certificate of Attendance.
Handouts: Honolulu Course Materials for 9/28/11:
Course
#1
Courses #2 and #4
Course #3
Register now for OIP's Free
Legal Education Seminars
in Honolulu, Hilo, and Kona
The Office of Information Practices (OIP) is
pleased to present free seminars providing legal education credits
on the open government laws in Honolulu
on Wednesday, September 28; in Hilo,
on Friday, September 30 and Saturday, October 1; and in Kona
on Friday, October 21, 2011. Attorneys can earn one mandatory
continuing professional education (MCPE) credit for one course,
and possibly more MCPE credits for the two other courses being
presented.
OIP has received the Hawaii State Bar Association’s
approval to offer 1.0 MCPE credit for one course, “Ethical
Considerations for Counsel When Advising Sunshine Law Boards.”
OIP can also offer 1.5 voluntary continuing legal education
credits (VCLE) for each of the following two courses that are
being presented: (1) Government Attorneys' Obligations Regarding
Open Records Requirements of the Uniform Information Practices
Act (1.5 VCLE credits) and (2) Government Attorneys' Obligations
Regarding Open Meetings Requirements of the Sunshine Law (1.5
VCLE credits). OIP is currently seeking reconsideration of the
HSBA’s denial of MCPE credits and has requested retroactive
approval of MCPE credits for the VCLE courses.
Details and registration information for the Honolulu
and Hilo seminars can be found below. Registration
is due by Friday, September 23. Further information
about Kona and other seminars will be sent
in future e-mails and posted at What’s New on OIP’s
website.
HONOLULU SEMINARS September 28, 2011:
NOTE: An afternoon session of the Ethical
Considerations course has been added for Honolulu (as Course
#4 at 3:30). For details and all course times, see the amended
flyer below:
September
28 HONOLULU amended flyer (MS Word) (pdf)
Registration is now closed for the September
28 HONOLULU seminars.
*** HANDOUTS***
HONOLULU Course materials:
Course #1 (Open
Meetings):
Sunshine Guide for state and county boards;
Sunshine Guide cover;
Shrimp Board bad agenda;
Shrimp Board good agenda;
Sunshine Powerpoint Handout;
OIP's August 2011
newsletter
Evaluation;
CLE
Certificate of Attendance.
Courses
#2 & #4 (Ethical Considerations):
Sunshine
Guide for state and county boards;
Sunshine
Guide cover;
Outline for Sunshine based MPCS training;
OIP's August 2011
newsletter;
Evaluation;
CLE
Certificate of Attendance.
Course
#3 (Open Records):
UIPA Manual;
UIPA cover;
Shrimp
Board records;
UIPA Powerpoint Handout;
OIP's August 2011
newsletter;
Evaluation;
CLE
Certificate of Attendance.
HILO SEMINARS September 30 and October
1, 2011:
September
30 - October 1 HILO flyer (pdf)
Registration is now closed for the HILO
seminars.
*** HANDOUTS***
HILO Course materials:
Course #1 (Open Records):
UIPA Manual;
UIPA cover;
Shrimp
Board records;
UIPA Powerpoint Handout;
OIP's August 2011
newsletter;
Evaluation;
CLE
Certificate of Attendance.
Course #2 (Open Meetings):
Sunshine Guide for state and county boards;
Sunshine Guide cover;
Shrimp Board bad agenda;
Shrimp Board good agenda;
Sunshine Powerpoint Handout;
OIP's August 2011
newsletter
Evaluation;
CLE
Certificate of Attendance.
Courses #3 (Ethical Considerations):
Sunshine
Guide for state and county boards;
Sunshine
Guide cover;
Outline for Sunshine based MPCS training;
OIP's August 2011
newsletter;
Evaluation;
CLE
Certificate of Attendance.
Recent Open
Government News:
What's New: Tweeted Information Requests
Are Valid in the United Kingdom
To tweet or not to tweet – the
question facing government agencies worldwide. If they choose
to tweet, public authorities in England have recently been
told that they must respond to records requests sent via government
agencies’ Twitter accounts. To link to the article,
click
here.
Openline Newsletter:
Q&A: OIP Facts (including: What does
OIP do? What resources does OIP have to do its job? What are
OIP's priorities? What's new at OIP? How does OIP obtain compliance?
What happens if an agency refuses to comply? Can agencies appeal
in court to challenge an OIP opinion?)
Recent Open
Government News
from Around the Nation:
Utah: HB477 and Utah's open government law
...
On March 25, 2011, after a special session,
Utah Governor Gary R. Herbert repealed a controversial bill
that had been passed by the Legislature on March 7 and signed
by him on March 8. HB 477 would have changed the state’s
Government Records Access and Management Act (GRAMA) to narrow
the definition of "public record," exempt the Legislature
from open records requirements, impose new fees for accessing
public records, and place upon a requester the burden of proving
by a preponderance of evidence that a government record should
be disclosed. The bill's text had been first made public on
March 1 and two public hearings on it were held in the final
days of the Legislature, where all testifiers except its sponsors
had opposed HB 477's passage. To view the text and legislative
history of HB 477, visit
the Utah State Legislature site.
Salt Lake Tribune: "Move
to dilute GRAMA stirred up hornets' nest"
Salt Lake Tribune: "Utah
lawmakers repeal HB 477"
Salt Lake Tribune: "Records
expert: GRAMA strong but worth a review"
Salt Lake Tribune: "Working
group considers open records laws"
View more related
links ... Hawaii, USA, and International
Sunshine Law Video:
OIP now has a one-hour training video: "Introduction to the
Sunshine Law" for board and commission members, and also
of interest to the public. You can view the training video here,
or go to OIP's new training page for
additional guides and training materials.
Hawaii State
Office Of Information Practices from Mark
Wolf on Vimeo.
Once the video begins playing, you can download
and save it to RealPlayer by mousing over the video and then clicking
in the upper right on "Download This Video." (If you
need to download the free RealPlayer to your computer, go to www.real.com/realplayer.)
What's New Press Release:
July 19, 2011-
The Raw Truth
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 since 2009 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 and 2009,
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.
To remain informed of OIP’s activities and for updates,
training materials, rulings, press releases, OpenLine newsletters,
and other information, please check OIP’s website at http://hawaii.gov/oip.
For questions or assistance, please contact OIP via email at oip@hawaii.gov
or by calling (808) 586-1400.
Note: The third and seventh paragraphs of the
originally published article have been clarified to reflect that
OIP temporarily suspended issuance of determinations in 2009,
after court appeals in 2008 and 2009 were concluded.
June 21, 2011-
"Open Records" Guide to Hawaii's Uniform Information
Practices Act
(updated June 2011)
June 14, 2011-
"Open Meetings" Guide to "The Sunshine Law"
(updated June 2011)
June 7, 2011-
OIP Looks to the Future:
2012 Legislative Proposals
The Office of Information Practices (OIP) is already
looking ahead to the 2012 legislative session and has begun
studying issues that may require clarification or updating of
Hawaii’s open government laws, including agencies’
right to appeal OIP’s determinations and the impact of
social media on open government laws.
OIP is charged with administration of Hawaii’s open government
laws: the Uniform Information Practices Act (“UIPA,”
Chapter 92F, H.R.S.) and the “Sunshine Law” (Part
I of Chapter 92, H.R.S.). While the UIPA clearly gives non-government
requesters the right to sue an agency to compel disclosure of
government records even after an OIP determination that the
agency was justified in denying access to the records, the law
does not specifically give an agency the same right to appeal
an OIP determination that the agency was required to disclose
government records. The agencies’ lack of a right to challenge
OIP’s determinations was expressly acknowledged in a legislative
conference committee report of the original UIPA, which stated
that “[t]he legislative intent for expedience and uniformity
in providing access to government records would be frustrated
by agencies suing each other.”
Based on their interpretation of the Sunshine
Law, however, the courts have allowed a county to challenge
an OIP determination by directly naming OIP in an appeal, rather
than by simply moving the dispute between the county and the
requesters to the court as in a typical appeal. Consequently,
during the next legislative session, OIP intends to seek clarification
of the appeals process and OIP’s authority when issuing
determinations. In the meantime, OIP will continue to provide
advisory opinions instead of determinations.
Another issue for potential legislative action
concerns the government’s use of social media in communicating
with the public, which will also be the main topic of the Hawaii
State Association of Counties’ conference on Maui on June
23, 2011, at which OIP Director Cheryl Kakazu Park will be a
panelist. “There have been vast changes in technology
and communication since 1975 when the Sunshine Law was first
enacted and since 1988 when the UIPA was enacted. Today, there
are new tools and methods to share information, expand discussion,
and engage more people,” Park noted. “These changes
in technology and people’s use of social media, such as
Facebook and Twitter, may require modernization of our open
government laws in order to avoid violations of our current
laws. Therefore, our office is seeking input from various government
agencies and public interest groups to see if changes to the
open government laws are necessary and whether there will be
broad support for proposed legislation that OIP may be willing
to sponsor in the 2012 session.”
For inclusion in its 2012 legislative package,
OIP will consider proposals that are supported with specific
facts or data, such as actual examples of situations indicating
a need for revisions, the adoption of similar legislation by
other states or the federal government, or actual costs of compliance.
“Please keep in mind,” Park said, “that OIP
administers, but does not make, the laws. If there are reasonable
legislative proposals that various interest groups are willing
to support, then OIP will consider including those proposals
in our legislative package next year. And while not all proposed
changes to the law will be supported by OIP as a part of our
legislative package, people always have the right to present
their own proposals directly to the Legislature, which makes
the laws.”
Government entities that would like to participate
in developing OIP’s 2012 legislative package must remember
to follow the usual Sunshine Law requirements to conduct official
business, which includes the establishment of permitted interaction
groups to allow more than two members of the same board or agency
to officially investigate and report on possible legislative
solutions. Proposals to be considered for possible inclusion
in OIP’s legislative package may be submitted to oip@hawaii.gov
by July 5, 2011.
May 31, 2011-
OIP Offers New Training:
MCPE Credits for Attorneys and Board Training Sessions
The state Office of Information Practices (OIP)
will be offering its first accredited legal seminar that provides
attorneys with one credit to meet Hawaii’s mandatory continuing
professional education (MCPE) requirements, beginning in June
2011. Also in June, OIP will be conducting general Sunshine
Law training for county board and commission members on Kauai
and Oahu.
OIP is charged with administration of Hawaii’s open government
laws: the Uniform Information Practices Act (“UIPA,”
Chapter 92F, H.R.S.) and the “Sunshine Law” (Part
I of Chapter 92, H.R.S.). “To keep our already large backlog
from growing and to prevent violations from occurring in the
first place, OIP is developing new tools to train the many state
and county agencies, boards, and commissions on how to comply
with these laws,” explained OIP Director Cheryl Kakazu
Park. “In addition to our general Sunshine Law training
for board members and staff, our new legal ethics course is
specifically geared to government attorneys who advise state
and county agencies, boards, and commissions on Sunshine Law
issues. Attorneys will earn one MCPE credit for attending this
course. By training these key legal advisors, OIP can leverage
its small staff and be assisted by many other attorneys who
can help us to obtain government agencies’ voluntary compliance
with the laws that we administer,” Park stated.
The new legal course, Ethical Considerations for Counsel
When Advising Sunshine Law Boards, will be offered
for the first time at the Hawaii State Association of Counties’
(HSAC) conference on Maui on June 22, 2011. For HSAC’s
June 22-23 conference, participants must register online at
www.regonline.com/HSAC2011. For a conference informational packet,
contact Toni Rojas, of Sterling Performance Group, by email
at toni@tonirojas.com or by phone at 573-7626.
OIP will be developing two additional legal education
courses on the UIPA and Sunshine Law. After these courses are
accredited, OIP plans to host a seminar with all three courses
in Honolulu in September 2011 and has discussed providing one
or all legal courses in Kona later in the fall. Details of the
upcoming seminars will be announced when they are finalized.
For county board and commission members, OIP will be conducting
general training sessions on the UIPA and Sunshine Law in June.
The training sessions will provide a general overview of the
law and practical information about the public’s right
to participate in meetings of government entities and to obtain
government records. Training on both laws will take place on
Kauai on June 7, 2011, at 8:30 a.m., and additional information
is available from Pualani Borales at pborales@kauai.gov, (808)
241-4917. The Honolulu training on the Sunshine Law will be
held on June 18, 2011, at 9:30 a.m. at the Mission Memorial
Auditorium next to Honolulu Hale, and additional information
is available from Bryan Mick at bmick@honolulu.gov, (808) 768-3717.
