The following comments were submitted by the Grassroot Institute of Hawaii on Oct. 4, 2022, to the SCR192 Working Group, the mission of which is to consider draft legislation that would incorporate a “deliberative process privilege” into the state Uniform Information Practices Act.
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To: Office of Information Practices
SCR192 Working Group
From: Grassroot Institute of Hawaii
Malia Hill, Director of Policy
RE: PROPOSED AMENDMENTS TO HRS CHAPTER 92F
Comments Only
Dear Members of the SCR192 Working Group:
The Grassroot Institute of Hawaii would like to offer its comments on the draft legislation that would incorporate a “deliberative process privilege” (DPP) into the state Uniform Information Practices Act, as well as offer a few comments on the proposed exemption in general.
We appreciate the efforts of the working group to find a compromise on this issue. It is not an easy thing to balance the competing interests of the public’s right to know with the need for a state agency to make sound and considered decisions. The Grassroot Institute submitted testimony in opposition to this exemption, but we understand the rationale behind it and support efforts to protect transparency while ensuring efficient and effective governance.
A survey of opinions issued by the state Office of Information Practices regarding the deliberative process privilege demonstrates that this exemption is ripe for misinterpretation and confusion. The OIP opinions illustrate the agency’s challenges in navigating these issues and setting a standard that upholds transparency. However, the goal of any legislation that reinstates the privilege should be to set clear standards and minimize the need to appeal to the OIP.
Our primary concern with the return of the DPP is that it will be used by agencies as a tool to avoid disclosure. When crafting a law to reinstate the DPP, it is important to account for the possibility that agencies may want to avoid disclosure for a variety of reasons. More important, as transparency is one of the ways to ensure clean government, UIPA exemptions must not become tools that can be manipulated by an individual who seeks to cover up corruption.
For that reason, we have two primary concerns with the draft legislation, which we fear does not account for the actions of an agency that is rushed, overwhelmed, or biased against disclosure.
Our first concern applies to the amendment to section 92F-3, which changes the definition of “government record” under the UIPA to exempt predecisional documents:
“Government record” shall not include writings that are truly preliminary in nature, such as personal notes and rough drafts of memorandum that have not been finalized for circulation within or among the agency.
While this amendment is an attempt to codify established court opinion on the nature of predecisional documents, we fear that this wording is too broad and could be abused. It should be noted that the Hawaii Supreme Court in Peer News, LLC v. City & County of Honolulu used similar wording to describe predecisional documents — with one important difference. The court noted that such “truly preliminary” writings “may not qualify as government records for the purposes of an agency’s disclosure obligations.” The difference between “may” in the decision and “shall” in the proposed amendment is of immense significance when it comes to the implications for the UIPA.
We must remember that the law makes predecisional documents available for disclosure at a later date. This is important, as influential memoranda, studies, surveys, and opinions may shine a light on how decision-making occurred and what influences were in play during the process.
Consider, for example, an agency that must make a final report to the Legislature recommending sites for a public works project. In the course of such a decision, personal notes and draft communications are created that reflect political pressure to choose a specific site over another. This is information the public deserves to know, but under the above definition, the agency would be justified in treating them as outside the definition of “government records.”
The draft amendment does attempt to make a distinction between records of importance and records that are “truly preliminary” by referencing rough drafts and personal notes, but that distinction remains vague and open to interpretation. One can imagine any number of communications, memoranda, reports, notes, or recordings that could be thought by the agency to be “truly preliminary” but which bear significance to the public as part of the government’s decision-making process.
The UIPA’s effectiveness leans heavily on the meaning of “government records,” and this new definition creates ambiguity as to what could be classified as “truly preliminary.” What does it mean to be “finalized for circulation”? Does it mean that only final drafts qualify? What about records other than memos that bear on decision-making but don’t ever make it out of the “draft” stage? What does it mean that something has been “circulated”?
What is needed is a bright-line definition that divides the “truly preliminary” from records that should be considered part of the decision-making process. Once a personal note or draft has been shared with others within the agency, it no longer qualifies as an individual’s preliminary thoughts, as it has entered the sphere of an agency product. Thus, while it may at that point still be “predecisional,” upon being shared, it has become a “government record.”
We suggest that the amendment to Ch. 92F-3 creating an exception to the definition of “government records” be changed to provide further clarification and avoid the creation of any loopholes regarding what qualifies as “truly preliminary.” We propose the following wording as a replacement:
“Government record” may not include writings that are truly preliminary in nature, such as personal notes and rough drafts of memorandum that have not been circulated or shared within, among, or outside the agency.
In addition, we suggest that the working group, and eventually the Legislature, add guidance indicating that the “truly preliminary” exception to the definition of “government record” be narrowly construed so as to encourage transparency and openness.
Our second concern touches on the amendment proposed to Ch. 92F-13:
6) Inter-agency or intra-agency deliberative and predecisional government records, other than readily segregable purely factual information, up until the final decision the deliberative government records relate to has been made or until deliberation of the matter has been abandoned; provided that once disclosure is required, the name, title, or other information that would directly identify a public official or employee may be withheld if that person lacks discretionary authority, did not make the decision, and is not under investigation for or engaged in wrongdoing or criminal conduct. This exception does not apply to board packets as defined in section 92-7.5.
On the whole, we think this is a laudable attempt to balance disclosure and decision-making. In particular, we appreciate that the exception lapses after the decision has been made or deliberation is abandoned, as that allows for the eventual disclosure of important documents. However, we are concerned that the vague nature of this time limit could be exploited to avoid disclosure.
It is the nature of some agencies that decision-making is ongoing and may be delayed for years at a time, and yet, the public interest in that decision and the factors that go into it is very high.
For example, the Honolulu rail project has been contemplating alternative plans for its completion for many years now. Those alternative possibilities have significant budget and tax implications, and yet, under this exemption, HART could avoid disclosing information about those deliberations and alternatives for years.
The proposed legislation tries to address this by making records available once a decision or deliberation has been “abandoned.” Yet, it is easy to imagine an agency arguing that an issue under deliberation has not yet been abandoned, no matter how much time has passed. The vague nature of this formulation requires something more to prevent abuse of the exception.
In order to avoid the use of the DPP to avoid disclosure where decision-making is a long or continuous process, we suggest that the language be altered to put a fixed time limit on how long the exception can apply to records when no final decision or report has been issued. We propose a limit of one year from the creation of the document, i.e. the relevant section of paragraph 6 of Ch. 92F-13 would read:
Inter-agency or intra-agency deliberative and predecisional government records, other than readily segregable purely factual information, up until the final decision the deliberative government records relate to has been made, the deliberation of the matter has been abandoned, or one year has passed since the creation of the record — whichever is earliest; […]
In this way, we hope to preserve the public’s right to access government records in a timely way and avoid abuse of the DPP. Moreover, we hope that placing a firm time limit on the extent of the privilege will increase clarity in the law and make it unnecessary for requesters or agencies to continually appeal to OIP as to whether an issue has been abandoned.
As noted above, we continue to have our doubts about the necessity of this exemption. Hawaii’s experience of the UIPA without a DPP has demonstrated that the lack of such an exception has not harmed agency decision-making. Moreover, the need to bolster public trust in the government requires a bias towards transparency.
It is our belief that an exception for government records related to decision-making runs counter to the spirit of Hawaii’s UIPA law. The statement of purpose and rules of construction under the UIPA very clearly includes disclosure of agency deliberations and the decision-making process.
HRS Ch. 92F-2 states: “Therefore the legislature declares that it is the policy of this State that the formation and conduct of public policy—the discussions, deliberations, decisions, and action of government agencies—shall be conducted as openly as possible.”
To stay true to the intent of the law means that any exemption should be biased towards timely disclosure, not secrecy. However, if such an exemption is put forward, we ask that the working group make its recommendations in a way that upholds a bias for disclosure, transparency, and open government.
Thank you for the opportunity to submit our comments.
Sincerely,
Malia Hill
Director of Policy
Grassroot Institute of Hawaii
Love-Hate Relationship with P3
Our state has a love-hate relationship with public-private partnerships (P3). P3s are where public (government) interests and funds partner with private companies to cooperate and share risks and benefits.
The most recent and visible example is our iconic Aloha Stadium.
According to Senate Economic Development, Tourism, and Technology Chair Glenn Wakai, we have already spent over $20 million on consultants and planners over the past two years to conceptualize the project, which uses a P3 to develop the lands adjoining the stadium into a New Aloha Stadium Entertainment District (NASED). Recently, however, Governor Ige’s office stomped on the brakes, notifying the Department of Accounting and General Services, which had been working on the project, that they couldn’t go forward with their planned request for proposals. Mike McCartney, director of DBEDT, told the Stadium Authority board that the law authorizing the project funding doesn’t allow using a P3. Senator Wakai, speaking on Hawaii Public Radio, warned that the project had “been sitting and sitting and sitting on the table for well over a year, and every month that goes by adds $2 million to the cost of construction.”
This turn-around in the middle of the project is unfortunate. But it is not the only instance of P3s getting sacked.
In 2005, the Hawaii Community Development Authority (HCDA) selected a $650 million proposal from Alexander & Baldwin Inc. to develop 37 acres of state land on the Ewa side of Kewalo Harbor. A&B’s proposal envisioned condominium towers, restaurants, stores, a hula amphitheater, and a waterfront promenade, among other things. The 2006 Legislature passed a bill to prohibit residential use in the area, effectively killing the deal.
In 1998, HCDA’s board selected a plan by local Republican businessman D.G. “Andy” Anderson for an entertainment complex involving some of the same land as the 2005 proposal. That P3 proposal included a Ferris wheel, laser light tower, concert shell, shops, restaurants, and even a miniature golf course. But in negotiating details with a hostile staff and Democratic Gov. Ben Cayetano, the board lost confidence in the financial projections offered by Anderson and killed the project. Anderson complained that his plan was solid and was scuttled for political reasons.
Certainly, P3s work sometimes. We see them in state government on somewhat of a smaller scale. The food vendors at the sports games that have been played at Aloha Stadium can be thought of as P3. A private vendor supplies the food at the University of Hawaii. A private vendor runs Maui Memorial Medical Center, helping to provide needed medical care to the island without the horrific losses that were happening under state government administration.
One thing that our lawmakers should be seriously thinking about is whether and in what instances they are willing to tolerate P3s. The debate about P3s seems to have many elements that are similar to the debate about privatizing some government services. Are we willing to let some Joe Schmoe profit from a good or service that government is or was providing? Are we willing to let those jobs be staffed by folks who are not in our powerful government unions? Would it be justifiable if Joe can provide the goods or services more efficiently than government can? Would it be justifiable if Joe can provide those goods or services at lower cost to the taxpayers without an appreciable reduction in quality? Would it be justifiable if the vendor is as transparent and accountable to the public as the government agency is or was? If we make the decision that the P3 has merit and is good for our State, what risk is there that in a few years the government leaders will change and put the kibosh on the P3 that had been started? Is there a way to manage the risk?
Lawmakers? Candidates? Where do you stand on this?