Tuesday, May 17, 2011


FOURTH AND FORTY: The Office of Information Practices (OIP) has been taking it on the chin lately over what has been described ad nausium as their decision to "punt" to the courts on this issue of whether Governor Neil Abercrombie had to reveal the full list of his judicial nominees after he made the appointment.

For those who haven't been following the story Abercrombie's predecessors routinely released the list but he claims that doing so would result in attorneys' reluctance to apply, should their law firms or clients find out.

The story has been reported and analyzed in the mainstream and alternative press as well as blogs- both mainstream and alternative- culminating with a Honolulu Star Advertiser editorial today and all have one thing in common- they routinely miss the point in criticizing the OIP for not opining on the matter since, they say, the law appears to require them to do so.

Typical of the criticisms is today's post by S-A columnist/blogger Dave Shapiro who, in telling the saga thus far, writes:

The saga of Gov. Neil Abercrombie’s secrecy on the names of judicial candidates has taken a troubling new turn with his hand-picked director of the Office of Information Practices, Cheryl Kakazu Park, refusing to issue an opinion on whether state law allows the governor to keep secret the nominees given him by the Judicial Selection Commission.

Park said it’s a waste of time for OIP to become further involved because Abercrombie has said he’ll ignore any OIP opinion against him unless a court tells him he must abide.

Park’s “punt,” as one news story described it, isn’t surprising; her predecessor, Cathy Takase, was fired after ruling against Abercrombie with a letter reiterating a 2003 OIP ruling that the names must be released.

The troubling part is that the governor now has not only shut the public out of the process of selecting judges who wield great power over our lives, but has politicized the OIP in an unprecedented way that diminishes its credibility and relevance.

And the law seems to be clear as is set out in this passage from blogger Ian Lind's post on the subject:

In Section 92F-42, which sets out the powers and responsibilities of OIP, this is right there at the top of the list. Responsibility #1.

The director of the office of information practices: (1) Shall, upon request, review and rule on an agency denial of access to information or records, or an agency’s granting of access;

I added the bold type on the word “shall.” OIP shall rule on an agency’s denial of access. It doesn’t use the word “may,” which would have given OIP discretion on whether to issue a ruling. It doesn’t say that OIP shall rule except when it looks futile because an agency stubbornly insists that it has the right to do whatever it wants. It says, simply, OIP shall do this job. It’s #1 responsibility. Top of the list, top line priority.

Someone needs to go back to OIP and ask what legal authority they have to “punt” in this case, given what appears to be clear statutory language (emphasis Ian's).

The problem is that each and every one who has written on the subject has either failed to read or comprehend the operative sentence in the letter from Park:

Toward the end of her memo she simply writes that:

since the Hawaii Supreme Court's (ruling) in County of Kaua`i vs Office of Information Practices OIP has been issuing advisory opinions rather than determinations.

For those for whom the case doesn't ring a bell it revolves around the infamous Kaua`i County

Council executive session- ES 177- the tentacles of which not only chimed over and over in Kaua`i Police Deportment politics for years but was one of the major highlights of the tale told in the book KPD Blue (see right rail).

At the secret conclave, then and now-again Councilmember Mel Rapozo, who was present at the infamous lap dance party at KPD headquarters and lost his cop job because of it- went off on KPD personnel blasting Chief KC Lum and others in the department according to an OIP memo observed but not copied by PNN at the time.

After an "on camera" examination the OIP ordered the minutes of the meeting to be released but the county, in the person of County Clerk Peter Nakamura, acting on the orders of then Council Chair Kaipo Asing, refused and decided to sue in circuit court.

The problem, as far as the OIP was concerned, was that the OIP was set up, in part, just to avoid these kinds of inter-agency lawsuits and then Director Les Kondo fought the case tooth and nail to avoid having the OIP become a "toothless tiger".

He argued that the provision allowing parties aggrieved by the OIP to sue in circuit court was to provide due process to individuals who were denied access to records, not for agencies told to "give 'em up" to sue the OIP. And he presented not just the specific wording of the law but the legislative committee reports- which clearly stated stated as much- as evidence.

But, to perhaps over simplify, the Supreme Court (SC) didn't listen or didn't care what Kondo foresaw happening to the OIP.

They essentially ruled that the county was entitled to access to the courts if due process was to be served. They also ruled, somewhat bizarrely, that although the request was for the minutes of ES-177- a "record request" over which the law clearly gave OIP authority in HRS 92F- it was actually a suit regarding a meeting, which falls the Sunshine Law (HRS 92) where the OIP did not have the "final bite of the apple" authority.

That essentially meant ithat Kondo's argument was deemed irrelevant.

And now the chickens have come home to roost.

In dealing with the ruling the OIP has simply stopped handing down binding opinions as the law calls for and now simply issues "advisory opinions", all of which can be appealed to the circuit court by anyone, as the SC precedent said.

Kondo was almost apoplectic over what he saw as the end of the OIP and of course he was right. But the Hawai`i press still doesn’t get it.

The SC opinion is not entirely clear as to whether the case was decided on the minutes vs open meeting matter or the lack of due process, the latter seeming to be just to get around Kondo's argument and get to what they- and the C of K- saw as the meat of the issue at hand... the release of the ES-177 minutes.

The County may have won the case but people who value open government and records rue the day that the decision came down. And until our punditry class cuts through the clutter of the politics of the judicial appointment list case and recognize the roots of the OIP's action, we'll continue to be kept in the dark about the state of affairs in the OIP.


Doug said...

FYI, it's "in camera" review, not "on camera." That's Latin for inside the judge's chamber, i.e. in secret.

So, what's next? If you're right, the OIP just folds up its tent and goes home?

Andy Parx said...

Yup- in not on... darn spell checker.

But as to your question Doug -essentially, yes. Why do you think Les left?