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Aloha to OIP Director
In early November, OIP Director
Paul Tsukiyama left OIP to take another state position. Governor
Lingle had appointed Paul as OIP’s fourth director in November
2007. Congratulations to Paul and mahalo for your service to OIP.
Effect of Current Budget Restrictions on
OIP Operations
Similar to many state agencies,
OIP has had a reduction in staff and staff hours and may be facing
further budget restrictions in the coming months. To provide assistance
to the greatest number of individuals, boards, and agencies requesting
OIP’s services, OIP is instituting measures that it believes
will best utilize its limited resources to fulfill its broad mission
to provide legal guidance and assistance to the public as well
as all state and county boards and agencies under both the State’s
public records law and open meetings law.
Advisory Opinions:
In an effort to address a backlog of UIPA appeals and Sunshine
Law complaints while providing timely assistance to current requests,
OIP will issue abbreviated opinions to resolve requests where
OIP’s reasoning is based upon prior, published OIP opinions.
Full legal opinions will be given where OIP believes it appropriate
to provide guidance on issues or specific records not previously
addressed in a published opinion.
Advisory opinions will also
be issued for appeals made under the UIPA. As discussed below,
the Hawaii Supreme Court has affirmed a court challenge to an
OIP determination of an appeal concerning the disclosure of executive
meeting minutes. Neither the ICA nor the Supreme Court, however,
provided a clear statement delineating when a court challenge
may be brought. Because of this potential for diversion of OIP’s
already limited resources, the time demands to issue determinations,
and current staffing constraints, OIP will, in the immediate future,
only provide advisory opinions to address UIPA appeals from agency
denials of access to any government record.
Any person who wishes to seek
enforcement of the UIPA’s disclosure requirements where
an agency has denied access to a government record may bring an
action in court. Where the complainant prevails, the court will
assess against the agency attorney’s fees and other expenses
reasonably incurred in the litigation. An OIP advisory opinion
is admissible in such an action.
Trainings:
OIP will continue to provide training on the neighbor islands
and for smaller groups on Oahu, but the number of training slots
available will be more limited. OIP is working to produce a video
for basic Sunshine Law training that will be made available. OIP
hopes to have this video available early next year.
Educational Materials:
All of OIP’s educational materials are available for downloading
on OIP’s website. Very limited quantities of printed materials
will be available for distribution.
Recent Court Ruling:
County of Kauai v. OIP
Disclosure of Executive Meeting Minutes
The Hawaii Supreme Court recently affirmed the
Intermediate Court of Appeals’ (“ICA”) opinion
in the County of Kauai’s lawsuit against OIP. The County
sought to overturn OIP’s determination that the minutes
from a Kauai County Council executive (closed) meeting must be
disclosed with limited redaction for attorney-client communications.
OIP had found that the matters discussed by the Council, for the
most part, did not fall under a narrow construction of the Sunshine
Law’s exception to open meetings “to consult with
the board’s attorney on questions and issues pertaining
to the board’s powers, duties, privileges, immunities, and
liabilities[.]”
OIP ruled on the disclosure of the minutes as a
UIPA appeal pursuant to HRS § 92F-15.5, which allows individuals
to appeal an agency’s denial of access to records to OIP
rather than filing an action in court. That section provides that,
if OIP determines a record to be public, the agency “shall
disclose” the record, but it does not provide for an agency
challenge of that determination in court. OIP thus argued that
the UIPA did not allow the County to bring its action to overturn
OIP’s determination on the disclosure of the minutes.
The ICA, however, found that the County could instead
challenge OIP’s UIPA determination under the Sunshine Law,
based upon OIP’s earlier, underlying Sunshine Law decision
that most of the executive meeting discussion should have occurred
in an open meeting. (Although OIP’s briefs also argued that
HRS § 92-71 required application of the more stringent Kauai
County Charter provision limiting the use of closed meetings,
the ICA opinion did not address HRS § 92-71 or the Kauai
County Charter.)
The ICA interpreted the Sunshine Law’s “attorney
consultation exception” to open meetings much more broadly
than OIP and found that all of the Council’s closed meeting
discussions were either attorney-client communications or were
inextricably intertwined with those communications. The ICA thus
concluded that the minutes could be withheld from public disclosure
in their entirety under the Sunshine Law.
OIP appealed to the Hawaii Supreme Court because
OIP believed the ICA decision could have a significant impact
on OIP’s function of providing an expedient and less costly
means of settling records disputes and also on the extent to which
boards could use the attorney consultation exception to shield
broad discussions from public scrutiny. OIP was also particularly
concerned with the potential for similar diversion of substantial
government resources resulting from “agencies suing agencies”
over access to government records. At a minimum, OIP sought more
specific guidance from the Supreme Court on these issues going
forward. Unfortunately, however, the Supreme Court affirmed the
ICA decision by order and did not issue its own opinion.
NOTICE Regarding Furlough Days:
Under the UIPA and OIP's administrative
rules, the time limits for agencies to respond to records requests
are set forth as specified numbers of business or working days.
For purposes of calculating the agency response
time limits, a furlough day shall not be considered a business
or working day, unless the agency or division thereof is open
for the transaction of public business.
OIP
Furlough Calendar
furlough days and state holidays from November 2009 through
June 2010
OpenLine Newsletter (pdf):
2009 Legislative Wrap-Up: Information Practices (Bills Proposed
by OIP, Other Sunshine Law Bills; Other UIPA Bills); OIP Informal
Opinion Letters
Act that Became Law in 2009:
Click on the link for an official copy of a new
act affecting the Sunshine Law:
- Act
24 - amending the statute governing the Board of Education
(BOE) meetings, to allow the BOE to give only a two-day notice
for meetings during the legislative session when the only items
on the agenda relate to legislation. (Became law without the Governor's
signature.)
OIP Opinion Letters (pdf):
Report
to the Legislature on the work of OIP
from July 1, 2007, to June 30, 2008.
Due to recent interest,
OIP is adding to its website a list
of its informal opinions, with summaries of those
opinions. Most of these summaries have appeared in OIP’s
annual reports to the Governor and the Legislature, which may
be accessed on OIP’s website under Reports.
OIP issues informal opinions generally
in instances where the legal questions raised by a dispute have
been previously resolved and discussed in a formal opinion, and
where the legal opinion is based upon specific facts that limit
the opinion’s usefulness for general guidance purposes.
These opinions are often abbreviated in form and refer the reader
to OIP’s formal opinions for a full discussion of the legal
concepts applied. OIP does not maintain a subject index for the
informal opinions.
The informal opinion letter summaries are grouped into
three categories:
(1) Sunshine Law Opinions. These
are advisory opinions rendered in response to a request for a
legal opinion concerning the Sunshine Law, a request for an investigation
into a possible violation of the Sunshine Law, or a complaint
filed against an action taken (or not taken) by a government board.
(2) UIPA Opinions. These are advisory opinions
rendered in response to a request for a legal opinion concerning
the UIPA.
(3) UIPA Decisions on Appeal. These
are OIP determinations made in response to an appeal to OIP filed
by a member of the public from a government agency’s denial
of access to a government record.
Summaries of the informal opinions in calendar
2009 will be added first, and past years will be added later.
Opinions are numbered by fiscal year for reporting purposes in
OIP’s annual report, but will appear here by calendar year.
State Calendar:
Effective immediately, Governor
Linda Lingle has directed all State boards subject to the Sunshine
Law to post their meeting notices on the State Calendar as soon
as those notices are filed at the Office of the Lieutenant Governor.
See Executive
Memorandum No. 08-06. A board must still file its meeting
notice and agenda with the Lieutenant Governor’s office
to comply with the Sunshine Law’s notice requirements.
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.
Records Report System (RRS)
Agency
Training Guide: How to Report & Update Agency Records
This guide leads the agency user
though most of the resources on the RRS
Page for Agencies, in four steps: Internet Access to RRS;
Reporting Agency Records; Staying Current; and RRS Reports Online.
Two Acts Signed
into Law in 2008:
Click on the links for official
copies of the two new acts affecting the Sunshine Law:
- Act
20 - amending limited meetings provision (§ 92-3.1)
to allow closed meeting where public attendance is not practicable
- Act
153 - creating special Sunshine Law exceptions for neighborhood
boards
: a chronological index of all OIP opinion letters,
with brief summaries.
- These summaries are designed to serve only
as a quick guide to locate an
OIP opinion letter relating to a certain subject.
- To fully understand an opinion, it is necessary
to read the full text of the opinion.
Subject Matter Index of
Opinion Letters; Table of Statutes:
June 6, 2008:
RECENT COURT CASES UNDER
THE UIPA AND THE SUNSHINE LAW
The Hawaii appellate courts have ruled in two cases
that offer guidance under the UIPA and the Sunshine Law.
(1) Right to Know Comm. v. City Council, City & County
of Honolulu, 175 P.2d 111 (Haw. Ct. App. 2007).
This case concerned the serial use of a "permitted interaction"
under the Sunshine Law. The Intermediate Court of Appeals agreed
with OIP's conclusion (in OIP Op. Ltr. No. 05-15) that serial
use violates the Sunshine Law because it circumvents the law's
open meeting requirement and is contrary to the law's underlying
policy and intent.
(2) Olelo v. OIP, 173 P.3d 484 (Haw. 2007).
In this case, the Hawaii Supreme Court ruled that Olelo is not
an "agency" under the UIPA.
For a summary of these two cases and their effect
on future OIP opinions, see the May
2008 issue of Openline.
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