If a state agency director has her way, a House bill pending at the Legislature could be amended in such a way as to have Hawaii take a huge step backwards on government transparency.

Sadly, it is the very same person who is tasked with ensuring government transparency.

Cheryl Kakazu Park, director of the Office of Information Practices, has asked the Hawaii Legislature to make major changes to House Bill 1478. As written, the measure concerns increasing the extent to which the public records law applies to the state judiciary.

But Park, in testimony submitted Monday, wants to use HB 1478 to add what’s known as the “deliberative process privilege” to the Uniform Information Practices Act — the state’s public records law.

If the committee does that — a vote is scheduled for Thursday afternoon — it would be a legislative end run around a landmark Hawaii Supreme Court ruling in December that overturned three decades of government secrecy.

Public agencies in Hawaii have withheld innumerable records from public view over the years by claiming they were subject to the deliberative process privilege. OIP — whose mission is “ensuring open government while protecting individual privacy” — had long assumed that such a law existed.

Nope.

The high court’s ruling, which stemmed from a Civil Beat lawsuit that challenged the City and County of Honolulu for withholding internal government documents, was so consequential that we argued in this very space last month that lawmakers must resist any effort to undercut the UIPA. We urged that the Hawaii Legislature instead work to strengthen public records transparency and make sure that our public records law is not undermined by agencies seeking to end-run the high court, in this legislative session or later.

Contact Key Lawmakers

House Judiciary Chair Chris Lee
replee@Capitol.hawaii.gov
808-586-9450

House Judiciary Vice Chair Joy A. San Buenaventura
repsanbuenaventura@Capitol.hawaii.gov
808-586-6530

We’re not surprised that the OIP director is now trying to do exactly that. Under Park, OIP has behaved more like an Office of Information Privacy. Her attempt to work around the judicial branch seems borne out of a case of sour grapes, as the ruling has forced her office to seek more resources to do its work.

In her testimony on HB 1478, she absurdly posits her proposal as helping the Legislature avoid engaging in “a separation of powers dispute” by allowing the decision-making function of all branches of state and county government “to be protected in appropriate circumstances where the agency’s need for confidentiality outweighs the public’s interest in disclosure.”

OIP has become the opposite of what it’s supposed to be. There is simply no need for this other than to give OIP authority it neither needs nor deserves.

Many jurisdictions across the country do not have the deliberative process privilege as an exception to public records law. For Hawaii to adopt it would represent a radical policy choice at odds with the principle of open government.

The Legislature should give the court’s ruling some time to see how it shakes out in practice rather than push through a way to undermine the public’s ability to check up on government actions.