Hawaii oversight agency wants “vexatious requester” law passed

AGENCY SUBMITS TESTIMONY IN FAVOR OF AMENDMENT OVER WHICH IT WOULD HAVE JURISDICTION

by Sharon Rondeau

(Mar. 11, 2010) — The Office of Information Practices, an agency of the Executive branch of the Hawaii state government, has testified to the Hawaii Senate Committee on Government Operations in strong support of SB2937, which would give the agency the authority to label certain requesters of state government information “vexatious.”

Cathy Takase, Acting Director of the OIP, stated in her testimony, “The UIPA currently contains no provision that would allow an agency to not respond to a record request even where there may be a legitimate justification for not responding.”

However, the OIP would be the agency charged with deciding who is considered “vexatious,” so its testimony would appear to be a conflict of interest.

The amendment to Hawaii’s current UIPA law, proposed by state senator Will Espero, is also “strongly” supported by Dr. Chiyome Fukino, Director of the Hawaii Department of Health.  In her testimony she stated, “For more than a year, the Department of Health has continued to receive approximately 50 e-mail inquiries a month seeking access to President Barack Obama’s birth certificate in spite of the fact that President Obama has posted a copy of the certificate on his former campaign website.”  Fukino’s statement raised questions about whether or not she was vouching for the authenticity of the image posted on Obama’s website, as several experts have denounced it as a forgery.

Fukino’s testimony differs from data collected by The Post & Email and reported here which showed that many of the requests have been for “index data,” which falls under the category of “Information collected and maintained for the purpose of making information available to the general public.”

In the past, OIP has supposedly fought for openness

The OIP home page of the Hawaii state website currently states: “OIP administers Hawaii’s open records law, the Uniform Information Practices Act (Modified), chapter 92F, Hawaii Revised Statutes (“UIPA”). OIP also advises, and accepts complaints, regarding Part I of chapter 92, Hawaii Revised Statutes (open meetings or “Sunshine Law”).”

In 2005, Kauai County brought a lawsuit against the OIP for failing to release the complete minutes of a meeting of the county executive board and its attorney. The OIP had agreed to release the minutes with some redactions to protect the privacy of the attorney/client relationship. While the Intermediate Court of Appeals maintained that the county could sue on the premise that the meeting should not have occurred in private, which would have rendered the minutes available for public release, it also ruled that “all of the Council’s closed meeting discussions were either attorney-client communications or were inextricably intertwined with those communications.” The court therefore ruled that the minutes of the meeting in their entirety could be withheld from the county.

According to the Hawaii “Sunshine Law,” p. 17, there are eight circumstances under which an “executive meeting” can be convened, and to “Consult with Board’s Attorney” is one of them.

The OIP had appealed the ICA’s decision 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 also claimed “that the ICA gravely erred in (1) affirming the circuit court’s jurisdiction to hear the Council’s original action under the Sunshine Law, Hawai`i Revised Statutes (HRS) chapter 92, without then limiting its review to determining the applicability of that chapter; (2) not giving effect to the Kauai County Charter’s more restrictive standard for closing a counsel meeting; (3) failing to consider the legislative history indicating that the Legislature intentionally narrowed the attorney-client executive meeting purpose provided by HRS § 92-5(a)(4); and (4) failing to defer to OIP’s interpretation of Sunshine Law provisions under the palpably erroneous standard.”

However, the ICA’s ruling was upheld by the Hawaii Supreme Court, although it issued no independent opinion on the matter.

In its 2008-2009 annual report, the OIP stated: “OIP has a 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.” In discussing the Kaui County case, the OIP claimed that it was supporting the Hawaii legislature’s 1985 amendment which was designed to “‘afford the public more participation in government and to strengthen the Sunshine Law.'”

The Post & Email had previously reported the promotion of the former director of the OIP, Paul T. Tsukiyama,  to Vice-President & Director of Human Resources at Hawaii Health Systems Corporation last November. Governor Linda Lingle had appointed him to the OIP in October 2007. Both Tsukiyama and the current Acting Director, Cathy Takase, had presented arguments to the Hawaii Supreme Court on behalf of the OIP in the case filed by Kauai County.

The motto of the OIP is “Ensuring open government while protecting your privacy.”