Posted on: Sunday, March 13, 2005

By Jerry Burris
Advertiser Editorial Editor

Those who debate the right of the public to access information held by their government sometimes forget to look at the underlying issue.

The battle over access to information is interesting, yes, but there's another part as well.

There are two fundamental currents coursing through all discussion over government control of information. First, do we as citizens have a right to the information and, second, did government have a right to collect it in the first place?

These were the precise issues that preoccupied the 1978 Hawai'i Constitutional Convention, which wrote a right to privacy into the state constitution that is by most accounts much broader than any implied or explicit right to privacy in federal constitutional law.

Fundamentally, the delegates to that convention had a strong Libertarian streak. They were less concerned about access to information than with the right of a citizen to privacy within his own home, his own life and his own mind.

Specifically, concerns ranged from the right of an individual to smoke marijuana within his own home (Hey! Alaska allows it!) through the privacy right to read and think what one wishes.

Interestingly, while there was not that much discussion of pornography during that Constitutional Convention, it didn't take long for someone to look at the right to privacy in that exact context.

In 1988, the Hawai'i Supreme Court took up a case where it was forced to decide whether the right to privacy (in this case the private right to read or view pornography in one's own home) means someone else has the right to produce such material.

It does, the court concluded.

"(An) adult person cannot read or view pornographic material in the privacy of his or her own home if the government prosecutes the sellers of pornography," the court said. "A person has the right to view pornographic items at home, there necessarily follows a correlative right to purchase such materials for his personal use or the underlying privacy right becomes meaningless."

But of course, philosophical issues of access to information and fundamental community mores often find themselves in conflict. The same court concluded that a right to privacy does not mean one can hire a prostitute in the privacy of one's own home.

Effectively, the 1978 Constitutional Convention decided that Hawai'i residents have a right to privacy that can be trumped only by a "compelling state interest" on the part of government.

That is just about the highest bar possible against government action.

Ironically, when the Legislature got around to implementing this provision, it turned the convention's thinking on its head.

The Legislature's first shot at putting these ideas into law proposed this: Yes, government has a broad right to gather and assemble information. But it takes a compelling reason to force the disclosure of that information to the public under the constitutional right to privacy.

That is, we can find things out about you, but we won't tell you or anyone else what we have without a compelling reason.

That must have left some of those 1978 delegates rolling over in their leisure suits.

Fortunately, cooler heads prevailed, and the law was written with a reverse sort of approach: Yes, you have a right to privacy, but when government collects information, then you have a right to it.

Here's what it says:

"In a democracy, the people are vested with the ultimate decision-making power. Government agencies exist to aid the people in the formation and conduct of public policy. Opening up the government processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore ... it is the policy of this state that the formation and conduct of public policy ... shall be conducted as openly as possible."

Fine words. But ...

It is the "but" issue that has most often stood between citizens and their rights to information government has gathered.

Yes, you can have whatever you want, but, not certain law enforcement records. Most would agree this makes sense, investigations need to be confidential.

• But ...

This has come to mean most of the information law enforcement collects about the discipline of its own members remains confidential.

• But ...

There's an exception for records that, if released, would add up to "clearly unwarranted invasion of personal privacy." OK, makes sense if this means, say, one's own personal medical records from a government clinic.

Should it, however, apply to medical information about an obviously ill public official who has been missing from work for weeks or months and no one will say why?

• But ...

"Government records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function."

Again, this makes sense. What's the point of releasing information that would destroy the function of government the information was gathered to support?

But what if someone interprets that word "frustration" in its literal sense, as in it's frustrating to me — or even just plain embarrassing — for you to have this particular information?

"One of the biggest holes is that 'frustration of government function' exception," said Hugh Jones, a state deputy attorney general who served with the Office of Information Practices (the agency charged with sorting out these access-to-information questions) from 1989 through 1996 — arguably, that agency's most active and activist years .

"Some people have taken that to mean that release of information will make us look bad and it's frustrating," Jones said.

"That's not what was meant."

Jones argues that Hawai'i's open-records law, even with its flaws, has been an invaluable tool for citizens who want to know — deserve to know — what their government has been up to.

"Think of all the reforms that have come out of freedom of information requests (for public records)," Jones said. He cited everything from procurement reform through changes that tighten up what kind of gifts, trips and favors public officials may receive.

"You know, before the OIP, arrest records of people were not public," he said.

When the Office of Information Practices opened, under its first director, Katie Callahan, it had a crusading spirit, he said.

This was in part because the law was built on strong foundations of a special governor's committee that traveled around the state collecting stories of citizens' often-frustrating attempts to get some information from their government.

As a result, the law contains a long list of specific kinds of information that, presumptively and by definition, must be made public and cannot be kept secret. Each one of them represents a specific citizen experience.

They include: government purchasing information, pardons and commutations, land ownership records, results of environmental tests, details of contract hires by government, details of who has received loans from government, building permit information and more.

It's an amazing list and on the face of it, most folks would say of course this information should be public.

But it is in the law because someone, somewhere, concluded that a citizen did not have the right to this basic government information.

The problem, Jones suggested, was an "ingrained philosophy" of government workers that it is better to hold information than to release it and possibly cause trouble.

"It's just the safest thing to do," he said.

And it's an approach that seems to emerge whether someone has been in government forever or has just joined.

"There's an old joke in the (information access) biz that every administration comes into office promising openness and leaves condemning it," he said.

At the end of the day, Jones said, access to government records and information is far more than a nice tool for busybodies and news media trying to sell papers.

"It produces news stories of importance to the public," he said. "It's not gossip kinds of stuff. It's how millions of tax dollars are being spent."

And it's not new, either, he noted.

"I always like to say that one of the litany of complaints (to King George III) in the Declaration of Independence was that records of importance to the colony were kept in places distant from colonial legislators," he said.

So it could be argued: This nation was founded in part on a conviction that the people have a fundamental right to ready access to information their government has collected about them.

Really, could anything be more simple?

Jerry Burris is The Advertiser's editorial page editor.