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 (large file ... may take a while
to load)
Basic UIPA training
video, part 2
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 (large file ... may take
a while to load)
Basic
Sunshine Law training video, part 2
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
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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.
