i L i n d

The chairs of the House and Senate Judiciary Committees each submitted comments for their respective Journals explaining the intent of Senate Bill 2858, which passed final reading on May 1 and is now awaiting the governor’s signature.

In his comments, Rep. Gil Keith-Agaran spelled out why he supported passage of the measure, which sets requirements for agency appeals of decision by the Office of Information Practices.

The conference draft allows agencies to judicially challenge OIP’s decisions, but requires agencies to timely appeal within 30 days and does not require OIP or the person who requested the decision to appear in court as parties to the appeal. While the bill now gives agencies the right to judicially challenge OIP’s decisions, it also sets a strong standard of review that would accord a presumption of validity and require the courts’ deference to OIP’s factual and legal determinations concerning the administration and interpretation of the UIPA and Sunshine Law, unless such determinations are “palpably erroneous” and result in a definite and firm conviction that a mistake has been made. See e.g., Right to Know Committee v. City Council, 117 Haw. 1, 175 P.3d 111 (2007); Aio v. Hamada, 66 Haw. 401, 664 P.2d 727 (1983). The bill further clarifies that the de novo standard of review referenced in HRS Sec. 92F-15(b) applies only to judicial appeals brought by the general public, and that agencies’ appeals are instead subject to the higher “palpably erroneous” standard. The bill does not affect the standard to be applied by the courts in reviewing OIP decisions with respect to constitutional issues or other matters beyond OIP’s sphere of expertise regarding the UIPA and Sunshine Law.

As is typical in appeals from administrative decisions, this bill limits the record in an agency appeal to what was presented to OIP when it rendered its decision, thus requiring an agency to present its best case to OIP and not rely upon having a second chance to present new evidence in a judicial appeal. Only in extraordinary circumstances would the circuit court allow discovery and admission of additional evidence during an appeal from an OIP decision.

A key provision is that if an agency fails to timely appeal within 30 days from an OIP decision mandating disclosure of a record under the UIPA, then such agency will not be able to challenge the decision if the citizen requesting the record is forced to bring an action to compel disclosure. This provision thus encourages agencies to take timely action, and it discourages agencies from simply ignoring an OIP decision and indefinitely refusing to disclose a record that OIP has determined should be disclosed under the UIPA.

Finally, this bill does not affect the general public’s existing right to bring appeals or to recover reasonable attorney fees and costs as prevailing parties in actions brought under either the UIPA or the Sunshine Law.

These comments were largely echoed by Sen. Clayton Hee. Both comments are posted on the OIP web site.

In further comments posted on its web site, OIP argued that seeking final authority without the possibility of court review would have likely required OIP to adopt cumbersome “contested case” procedures, and increased its administrative costs and staff needs beyond any realistic funding level.

Media and “good government” groups had rallied around a former journalism professor’s opposition to the bill on the basis that when the UIPA was written 24 years ago, it clearly was not intended to allow agencies to appeal from OIP’s decisions mandating the disclosure of records. OIP agrees that the UIPA was not originally intended to allow agency appeals, and indeed, OIP vigorously advocated that very same argument, which the courts rejected in a 2009 Intermediate Court of Appeals’ decision that the Hawaii Supreme Court affirmed. Even if the Legislature acted, as opponents urged, to overturn the courts’ ruling and made it even clearer that agency appeals were not allowed, these opponents fail to realistically acknowledge that, at the same time, the Legislature undoubtedly would have imposed severe limitations to counterbalance the absolute power that opponents sought for OIP and would have instead required OIP to follow something similar to judicial or contested case procedures.

Given the State’s shaky fiscal condition, it is also questionable whether such additional procedural restrictions would have been accompanied by the substantial and ongoing increase in government funding that OIP would have needed for more staff and resources. Moreover, by turning OIP into a nonreviewable body that would nevertheless be subject to litigious, time-consuming, and complicated contested case procedures, OIP could no longer be a free, expeditious, and simple alternative to the courts that also provides training and advice in response to over 800 annual inquiries from agencies and the public. Fortunately, the Legislature instead decided upon a balanced and reasonable solution that allows OIP to continue its work to informally, impartially, and expeditiously resolve disputes between the public and agencies, without the need for agencies or the public to retain expensive legal representation in lengthy and complex quasi-judicial proceedings.

I appreciate the comments by Rep. Keith-Agaron and Sen. Hee, and certainly have to say that their position is not at all unreasonable. I hope other sunshine advocates can take a step back and see the benefits of this legislation.