Tuesday, July 26, 2011


INFORMATION TAR-TAR: Ever since the Office of Information Practices (OIP) lost the infamous ES-177 case- wherein the County of Kaua`i went to court to avoid releasing the minutes of an executive session despite apparent legislative intent to give OIP ultimate authority and ban such court action- we've kind of felt like the guy in the movies screaming in futility while spinning through the vacuum of space.

But recent attention has been paid by Civil Beat Editor John Temple prompting the OIP to defend itself- in a letter from the current director entitled "The Raw Truth"- for refusing to, as they see it, waste their time trying to claim their "teeth" that the court took away.

We're not going to try to rehash the long and winding road of ES-177 and CofK vs OIP again here but today Temple does point out a new wrinkle that puts OIP's finger-pointing at the legislature in a new light saying that under:

sections 92F-15.5 and 92F-28 of Hawaii Revised Statutes that the OIP has authority to hear and make binding decisions in appeals if it exercises its rule-making authority.

Apparently OIP has never bothered to promulgate Chapter 91 Administrative Rules to set up an appeals process for agencies who disagree with their Uniform Information Practices Act (UIPA) rulings to follow- one of Kaua`i County's major gripes in their suit having been the denial of "due process."

In addition today, another open records and meetings junkie, blogger/journalist Ian Lind takes a shot at OIP's defense by noting that in CofK vs OIP the court actually distinguished it from another case where OIP's authority was upheld, noting that "board meeting minutes are specifically covered by HRS Chapter 92, whereas development proposals, such as the ones at issue" in the other case, are not.

Of course the only reason the ES-177 case is finally getting statewide attention is that Governor Neil Abercrombie refused to adhere to an OIP decision on releasing the names of candidates for the Hawaii Supreme Court and then refused to reappoint the OIP director who made the decision.

But one thing that again occurs to us today, has bothered us since the first day the CofK decided to file suit.

Why exactly did the county bother to sue and not just ignore the OIP?

By filing suit they risked losing but by ignoring the OIP- as many are doing today, they apparently would have risked nothing. That's because of something that neither Temple nor Lind nor OIP itself has mentioned- something that really exposed the weak link in all of this.

According to the Sunshine Law under §92-12 Enforcement,

(a) The attorney general and the prosecuting attorney shall enforce this part.

The fact is that, because the law also says that anyone who doesn't agree with an OIP directive can sue in circuit court, attorneys general have consistently said that one must go to court first and so, they have refused to enforce OIP's opinions.

Thus the root of the claim that OIP is a "toothless tiger" is that the AG refuses to enforce its decisions.

That is why Abercrombie can get away with thumbing his nose at the OIP- not because the legislature hasn't been clear enough, as Temple points out today in citing the 1989 conference committee report for the sunshine law, as the OIP did in it's arguments in CofK vs. OIP.

Seems that "The Raw Truth" is that OIP does have options- options that you can bet the always-reticent-to-act legislature will be sure to iterate next year when they consider the OIP's request for tooth sharpening.

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