The year 2007 ended badly for the Office of Information Practices, the agency which administers the state’s open records and public meeting laws. In a pair of December decisions, the state’s two highest courts overturned separate OIP rulings and went further to limit the agency’s underlying legal authority.

In the first and more important of the two cases, the Hawaii Supreme Court rejected OIP’s ruling that the state’s public records law, known as the Uniform Information Practices Act or UIPA, applies to Olelo Community Television, the nonprofit corporation contracted by the state to provide public, education, and government (PEG) programming on Oahu.

Although the sunshine law applies primarily to state and county boards and agencies, requiring records and meetings to be open to the public, it also applies to any “other establishment owned, operated, or managed by or on behalf of this State or any county”.

OIP took the position that Olelo uses public funds in the form of franchise fees paid by Oceanic Cable, the state’s monopoly cable company, under the terms of service agreements with state regulators. OIP also pointed to the state’s direct role in originally creating Olelo and its continuing power to appoint or remove directors. These factors led OIP to conclude that Olelo is an agency that is required to comply with the law’s open records requirement.

But attorney Lea Hong, representing Olelo, said it would be dangerous to treat the independent nonprofit corporation as if it were a public agency.

“It's a Pandora's Box. It's a slippery slope,” Hong argued in court. “It opens up a whole number of questions for non-profits. It blurs the distinction between non profit entities that provide valuable public services--no dobut about that--and government agencies."

Court records show OIP’s legal case may have been hampered by a dispute with the Attorney General’s office, which normally represents state agencies in court appeals. Court records show that a conflict between then-OIP director Les Kondo and the Attorney General’s office could not be resolved, prompting the AG to withdraw from the case and turn responsibility for the appeal over to Kondo and his tiny cadre of staff attorneys.

The nature of the dispute was not disclosed, and its effect on the outcome is uncertain. What is clear is that the Supreme Court’s decision dealt a double blow to OIP by not only overturning its opinion regarding Olelo but questioning its underlying powers.

The Supreme Court unanimously sided with Olelo, deciding the organization is not subect to the UIPA, and, further, that OIP’s powers are advisory only, that it lacks implied enforcement powers, and it cannot decide “threshold issues” that the court said are matters of law, including whether particular documents or agencies are required to be open to the public. One effect of the ruling is that courts do not have to defer to the OIP’s viewpoint when its decisions on such issues are appealed. It also now creates uncertainty about the law’s application to similar public-private hybrid agencies.

OIP unsuccessfully argued this would seriously undermine its authority, since virtually every case begins with a determination whether the law applies to the agency or record in dispute.

“Without such deference, appeals to OIP by individuals denied access to any agency's records would be futile exercises since OIP's ruling would then have little, if any, weight," the agency had argued, but it failed to persuade the court.

OIP director Paul Tsukiyama, who has been on the job less than two months, declined to comment at this time, saying that he first needs to consult with the attorneys who worked on the case.

In the second case, the Intermediate Court of Appeals rejected OIP’s broad prohibition on “serial communications” or private one-on-one contacts between members of the Honolulu City Council on matter pending before the council.

The council’s use of secret one-on-one meetings had been challenged by a coalition of groups, led by the Society of Professional Journalists, after council members held a series of private meetings in 2005 to discuss and reach agreement on an internal reorganization without any substantive debate or deliberation in a public meeting.

Circuit Court Judge Eden Hifo agreed with SPJ and OIP that the council’s actions violated the sunshine law, and she issued a broad ruling that although two council members can legally confer in private, neither can hold a subsequent meeting with any other council member to discuss the same issue.

The City appealed, pointing to a part of the law allowing two members of a board to talk about official business in private “as long as no commitment to vote is made or sought and the two members do not constitute a quorum of their board.”

In its ruling, the Intermediate Court upheld part of Hifo’s ruling, agreeing the council violated the sunshine law during its 2005 reorganization.

But the court then said “this dispute must be considered in the specific factual context in which it arose,” and overturned Hifo’s broad ban on private serial communications. Instead, Hifo was directed to issue a new ruling limited only to the 2005 reorganization.

Overall, though, the Intermediate Court decision was a mixed bag for SPJ and the other plaintiffs because it affirmed the right of “any person” to challenge a violation of the sunshine law without having to show personal damages, which would have effectively limited most public interest challenges. In addition, the court awarded plaintiffs the $41,353.14 in legal fees they incurred in challenging the council’s action.

[A slightly edited version first appeared in Honolulu Weekly on January 2, 2008]