Posted on: Sunday, March 13, 2005

COMMENTARY
Law created to 'protect people's right to know'

By Jon M. Van Dyke

Hawai'i's Sunshine Law was enacted in 1975 to ensure that the public has access to the meetings and documents of all state and county boards, commissions and legislative bodies (except for the Legislature, which operates under its own rules). Governmental agencies frequently view the requirements of the Sunshine Law as awkward and cumbersome, but they have learned to live with the law and operate in accordance with it. This law has truly opened up our governmental agencies and allowed citizens to monitor their work and have input into their decisions.

Over the years, some awkward situations have occurred. On Maui, community activist Jim Smith challenged the way Maui's governmental bodies were operating, particularly during the late 1990s. After much discussion, I was brought in to serve as consultant for the Maui Circuit Court and prepared a report for the court, which was later published in the University of Hawai'i Law Review in the Winter 2003 issue. This report summarized the key elements of the Sunshine Law as follows:

The Sunshine Law is designed "to protect the people's right to know," and also to allow citizens to have input into decision-making. Hawai'i's Intermediate Court of Appeals has explained that "the Sunshine Law is intended to foster transparency in the formation and conduct of public policy by opening up the governmental processes to public scrutiny and participation," and Hawai'i's courts have said repeatedly that the Sunshine Law is to be "liberally construed," and that doubts are to be resolved in favor of greater openness.

The Sunshine Law guarantees the public's right to know when government bodies meet, to be informed in advance of what business these bodies intend to conduct, to attend these meetings and to obtain their minutes in a timely manner. All "interested persons" must be permitted to present written and oral testimony on all agenda items. Each body can adopt rules to "provide for reasonable administration of oral testimony," and many bodies limit public testimony to three minutes per agenda item, with the opportunity to return for further testimony after everyone else has testified. Boards cannot delegate to a committee the responsibility of hearing public testimony but must be available to hear such testimony directly itself, with a quorum of members present.

A "meeting" is defined as "the convening of a board for which a quorum is required in order to make a decision or to deliberate toward a decision upon which a matter over which the board has supervision, control, jurisdiction, or advisory power." The attorney general has, for instance, given the opinion that a "retreat" planned by the trustees of the Office of Hawaiian Affairs to take place after its formal board meeting in order to "resolve personality conflicts" and discuss OHA's goals would have been a "meeting" that would have had to comply with the Sunshine Law.

Board members are prohibited from engaging in any deliberations with each other outside formal meetings and are specifically prohibited from discussing how they will vote except in properly noticed meetings. But two board members can communicate with each other to "gather information from each other about official board matters to enable them to perform their duties faithfully, as long as no commitment to vote is made or sought." A board member who missed a meeting would be permitted, for instance, to contact another board member by phone to learn what had happened at the missed meeting. But an inquiry such as "How do you feel about that matter?" would be improper, as would any attempt by either member to try to influence the opinion of the other.

Six calendar days in advance of each meeting, an agenda for the meeting must be posted at the site of the meeting, filed with the county clerk and mailed to people who request such notices. The posted agenda must list the "items to be considered" with particularity, in order to give the public sufficient notice to make an informed decision regarding attendance and participation. The "agenda" is the written list of each and every item proposed to be considered for deliberation and action at a meeting of the board, listed in the order in which the items will be considered.

The attorney general concluded that a published agenda containing only general references, such as "unfinished business" and "new business," is insufficient to comply with the law, and that a board must list "all of the specific 'items' or 'matters' that will be discussed" at its meeting. Executive or closed sessions should be noticed in advance if they are anticipated, and the purposes for such executive sessions should be provided to the public. Changes to the agenda cannot be made without a two-thirds vote of the board members.

Boards, commissions and legislative bodies should be practical in setting their agenda and should list only the number of items that they think they can realistically complete during their scheduled meeting. But it nonetheless sometimes occurs that a body fails to complete action on all the agenda items listed for a meeting by the end of the day. It is logical to allow these difficult meetings to be recessed until the following day or until a day in the very near future. But if the continuation is put off more than five days, then the full notice requirements of the Sunshine Act, as explained above, should be complied with, a new agenda should be posted, and additional public testimony must be allowed.

Minutes must be kept and copies must be made available to the public at a "reasonable cost of reproducing such copy." The minutes must be produced within 30 days after the meeting, unless all or part of the meeting was closed to the public, and in those situations the minutes of the closed portions must be produced as soon as the need for the closure disappears. The law does not authorize any exceptions to the 30-day rule (except for confidential matters), but if a board for some reason has not approved its minutes within the 30 days, then whatever draft minutes have been prepared must be made available to the public.

Anyone who willfully violates any aspect of the Sunshine Law can be charged with a misdemeanor and, if convicted, can be summarily removed from the board or commission they sit on.

The Sunshine Law has promoted transparency and integrity to the decision-making of Hawai'i's boards and commissions and has helped us have a government that is truly "of the people." We need to protect and promote this law and expand public access to governmental decision-making whenever possible.

Jon M. Van Dyke has been a professor of law at the William S. Richardson School of Law, University of Hawai'i-Manoa, since 1976. He wrote this commentary for The Advertiser.