This story shouldn’t exist. I shouldn’t have to write it, and you certainly shouldn’t need to read it. But if you believe in democracy and open, honest government, then nothing about the political state of affairs in this country, state or county is even close to optimal. Which is why I’m writing this story, which you should most definitely read.
There’s a war going on here in Hawaii over open government. It would be easy if it were between powerful, menacing authoritarian forces on one side, and bright, honorable advocates for transparency on the other, but it’s not. It’s between two entities, one public and one private, who are dedicated to ensuring that the State of Hawaii operates as openly as possible. This war, in which two well-meaning entities slap each other with wonkish reports and colorful infographics, is–on the face of it–rather ridiculous. Until you start really thinking about it–about what they’re arguing over–then you realize that the citizens of Hawaii may end up the only real losers here.
The fight is between the Office of Information Practices (OIP), a state government agency, and the Civil Beat Law Center for the Public Interest, a nonprofit organization. Both want to ensure that the public in Hawaii gets unfettered access to public officials’ records and deliberations.
The OIP basically ensures that government organizations throughout Hawaii properly adhere to two state laws–the Uniform Information Practices Act (UIPA) and the Sunshine Law. The first is the state’s open records law, which ensures that citizens have access to government records and the second prevents government bodies from making official decisions without proper input and oversight from the public.
“OIP provides uniform interpretation, advice, and training on these laws to nearly all of Hawaii’s state and county agencies and boards and to the general public,” states the OIP website. “OIP renders advice and assistance on questions concerning the public’s right to access government records or meetings, and also provides training to help agencies comply with the laws. Although the public has the right to go to court without having to involve OIP, it is not necessary to hire attorneys or observe judicial formalities to obtain OIP’s assistance, and OIP’s free and informal proceedings are not subject to the contested case procedures of HRS Chapter 91.”
Then there’s the Civil Beat Law Center, an independent nonprofit organization funded by billionaire Pierre Omidyar (though it shares a name and two board members with the Honolulu news site Civil Beat, the Law Center is a completely different entity). It offers “free legal advice, and representation on a select basis, to members of the media and the public who need help with issues involving government transparency,” tries to create “solutions that promote transparency and responsiveness in government to better serve the people of Hawaii” and does other work like “investigating questionable government activity, advocating for corrective action, and, if needed, enforcing corrective measures in the courts.”
Both organizations seek to help the public get better access to government. And right now, both organizations are attacking each other.
Civil Beat Law Center fired the most recent salvo, on Feb. 12, with a 10-page report titled “A National Comparison: Delays at OIP Are Staggering” (the report follows on similar research the center released a year ago). The damning report makes a very compelling case that all is not well over at the OIP.
“[D]espite high staffing per capita, OIP has the longest delays for public access disputes among its peer agencies with available information,” states the Civil Beat Law Center report. “Forcing the public to wait two years or more for resolution of public access disputes at OIP is unacceptable.” In fact, according to the report, “None of OIP’s formal decision from 2015 to 2017 were decided in less than two years.” The Civil Beat Law Center report also looked at 29 other states that have agencies like OIP, and found that “OIP is the worst among its peer agencies for delays in addressing public access disputes.”
Delays like this are horrible for the people who made the public access request in the first place, mostly because it’s highly unlikely that after two years or so, whatever information was originally asked for is still relevant.
Ironically, there was virtually no delay in OIP’s response to the Civil Beat Law Center report. In fact, it took the agency just a few hours to send out its own 10-page response, titled “OIP’S Response to a Staggeringly Misleading Report.” The OIP response makes 15 points in rebuttal, many of which include detailed legal citations and references.
“OIP criticized last year’s report for being based on flawed methodology, inaccurate assumptions, its writer’s particular perspective as an advocate and legal advisor for a media outlet, and a lack of understanding of how and why OIP has actually conducted its business over time,” states the OIP response. “This year, the same criticism applies.”
OIP’s entire response centers on its view that Civil Beat Law Center didn’t factor in all the OIP does. It says its opinions are, in contrast to other states, required to be lengthy and detailed because the courts defer to them. It says OIP “has historically been underfunded and not given the resources needed to perform its duties.” But despite that, OIP says that when you look at all the requests for service the agency gets–not just the formal complaints–it’s actually doing quite well, even when compared to other states.
“If fast, informal advice comparable to other states’ ‘opinions’ is desired, then people are already getting answers the same day from OIP through the AOD [Attorney of the Day] service, which responds to 77% of all requests for OIP’s assistance,” states the OIP response. What’s more, OIP says that in 2017, it “resolved 93% of 1,234 formal and informal cases in the same year they were filed, of which 77% were typically resolved the same day through the AOD service.”
While it’s true the Civil Beat Law Center report doesn’t address OIP’s Attorney of the Day service–the center doesn’t consider it part of OIP’s core mission–it’s also true that resolving big cases is a problem at OIP. According to Civil Beat Law Center, OIP resolved 70 “major matters” in 2016, but just 34 in 2017. What’s more, a chart included with OIP’s own response would seem to confirm a huge criticism from Civil Beat Law Center. It shows the OIP had 150 “unresolved cases” at the end of 2017, which is 46 more than it had at the end of 2016.
But it’s the OIP’s last rebuttal point that’s most damning–and head-scratching: that Civil Beat Law Center is trying to steal away potential OIP clients.
“CBLC’s motives are suspect,” states the OIP response. “In last year’s report, CBLC recommended the elimination of the AOD service; this year’s Report fails to recognize or account for the cases resolved informally by the AOD same day service to prevent disputes from arising or escalating to formal complaints. Without OIP’s primary means of providing fast, free, informal, and neutral advice, members of the public would suffer the most as they do not have alternative access to governmental attorneys that assist agencies and boards. Without OIP to provide this service, would there be more clients for a ‘public interest’ law firm to choose from?”
And that’s how the OIP response ends–with this question.
“It’s a strange response,” Civil Beat Law Center executive director Brian Black told me during a Feb. 15 phone conversation. “All of our work is pro bono, and our mission statement is broader than just government transparency. Our current mission is to come up with collaborative solutions to promote government transparency. I see us as heavily aligned with the mission of OIP.”
In its report, Civil Beat Law Center makes a couple recommendations. First, that the State of Hawaii create a “citizen commission” that would “supervise OIP’s performance to ensure timely public assistance in accordance with its mission.” And second, that the state impose a “hard deadline” on the OIP to render decisions. In fact, Senate Bill 3092–introduced by 18 Senators, including Roz Baker, D-South Maui, and Gil Keith-Agaran, D-Kahului–proposes to give OIP six months to complete big decisions. That bill was referred to the Senate Judiciary Committee on Feb. 13, but nothing’s happened to it since then.
For its part, OIP says it “already has its own goal to resolve formal cases within 12 months of filing,” but to meet a shorter deadline would require “money and positions appropriated and authorized immediately, and additional time to hire, train, and equip the new employees.”
Of course, OIP simply ignored Civil Beat Law Center’s recommendations last year, so I suppose it’s something that it’s at least entertaining the possibility of these. And maybe that’s enough.
“What we really want here is a healthy and strong OIP that’s focused on its core purpose,” Civil Beat Law Center’s Brian Black told me. “Our motive is to bring more public debate to the question of what should be OIP’s core mission.”
Cover design: Darris Hurst