The State Office of Information Practices (OIP) is encouraging people to provide written or oral comments, which can be done anonymously, for the October 4, 2022 meeting regarding the attached draft legislation that seeks to improve government decisionmaking.
As reported in OIP’s September 16, 2022 What’s New article, the draft legislation was developed by the Working Group (WG) convened pursuant to Senate Concurrent Resolution 192 (SCR 192) to develop a new statutory exception to the Uniform Information Practices Act (UIPA). Oral and written comments may be provided for the public meeting to be held via Zoom on Tuesday, October 4, 2022, at noon. The meeting notice and other information can be found on the State Calendar and a new SCR 192 webpage established on OIP’s website.
For nearly three decades, OIP had recognized the “deliberative process privilege” (DPP) as being essential to agency decisionmaking as it encouraged the candid and free exchange of ideas and opinions within and among agencies without fear of public ridicule or criticism before a final decision is made. The DPP served “to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency’s action.” OIP Op. Ltr. No. 90-8 at 5 (excluding citations). To prevent this exception from swallowing the UIPA’s requirement to form and implement public policy as openly as possible, OIP had narrowly interpreted the DPP. OIP Opinion Letter No. 95-24 at 21-22; see OIP’s DPP analysis on the Opinions page.
OIP’s opinions recognizing the DPP, however, were overturned in December 2018 by the majority decision in Peer News LLC v. City and County of Honolulu, 143 Haw. 472, 431 P.3d 1245 (2018). Since that time, OIP has followed the Supreme Court’s decision and rejected agency attempts to use the DPP and frustration of agency decision-making as a basis to withhold records. OIP Op. Ltr. No. F19-05. The Legislature, however, has asked OIP and the Working Group in SCR 192 to reexamine this matter.
The SCR 192 draft legislation being considered by the Working Group would create a new UIPA exception that seeks a balance between giving agencies the confidentiality they need during the decisionmaking process while being required to disclose to the public how decisions were reached after they are final or abandoned, unless another UIPA exception to disclosure applies. Although the proposed new exception is temporary with respect to the substance of the agency’s internal discussions, it will continue to shield the names of low-level employees involved in those discussions even after a decision has been made: the agency may still withhold the name, title, or other information that would directly identify a public official or employee if that person lacks discretionary authority, did not make the decision, and is not under investigation for or engaged in wrongdoing or criminal conduct. The new exception would also not prevent public access to nonconfidential draft reports and similar materials in a board packet that are being considered at an open meeting for adoption by a board under the Sunshine Law.
OIP encourages agencies and the public to closely examine the draft legislation and requests that written comments be submitted by noon on Monday, October 3, 2022 or that people register to provide oral testimony by 9 a.m. on Tuesday, October 4, 2022. If people are concerned about being subjected to public ridicule or criticism for expressing their views, they can submit comments anonymously. However, “zoombombing” or attempts to disrupt the meeting will not be tolerated. For further information, please go to the SCR 192 webpage, or contact OIP at oip.hawaii.gov or (808) 586-1400. Mahalo.
