Agency trying to shed light on Sunshine Law

By Mike Gordon
Advertiser Staff Writer

Last year, Hawai'i congressman Ed Case wanted to meet with the state Board of Education for an informal discussion of school issues.

"It was just to talk story with us," said Breene Harimoto, school board chairman. "I didn't think it was a problem."

But when a handful of board members sat down with Case, one of them said they had violated the state's Sunshine Law, which requires that the public must be given advance notice of all meetings.

So instead of meeting with the group, Case met with them two at a time until everyone had been given a turn — a solution Harimoto calls "bizarre." Board members learned later that even that was a violation of a law, which Harimoto calls "overly restrictive."

"We fully understand the public's need to know," Harimoto said. "But on the other hand, the law should not cripple the board from performing its duties."

Harimoto highlights a problem civic watchdogs see all the time. Open government is about attitude and acceptance.

A lot of elected officials and government appointees will tell you they like the idea of allowing the public to view records and attend meetings. But they can get squeamish when public scrutiny comes with too sharp a point or feel — like Harimoto — that procedures get in the way of good politics.

"It goes overboard in trying to protect the rights of the public to know what is happening to the point where any board will become dysfunctional," Harimoto said.

Most people in government — as well as the general public — do not understand the finer points of what Hawai'i's open government statutes require, Harimoto said. That puts him in an awkward position of defending the statute to board members, he said.

"Complying with the letter of the law is totally ridiculous," Harimoto said.

Changing minds

Changing the minds of government officials falls to the Office of Information Practices, the state's records watchdog, and it's no surprise that education tops the list of solutions OIP Director Les Kondo cites to improve access.

The agency gave about 15 training sessions in the past year, including two to state school board officials.

"When we do training, we always start off with the intent of our statutes, that in our form of government, the public has a right to know," Kondo said.

That right may not be as well-recognized as freedom of speech or freedom of religion, but that does not dilute its importance, he said.

"That right to participate in government, to know what government is doing is what our statutes are all about," he said.

A small staff and limited funding means the office struggles to get its message out, Kondo said.

Beverly Keever, a University of Hawai'i journalism professor, said increasing resources at budget-strapped OIP would be the surest way to improve public access, reduce the large backlog of cases and create more open government converts.

Keever said Gov. Linda Lingle should take the lead and educate key officials in her administration about the need for open government, especially the attorney general, whose deputies advise numerous boards and commissions on access issues.

"She needs to be much more forceful in telling officials within her own executive branch that agencies are there to serve the public," Keever said.

Trust in government is at stake, she said.

"People don't understand," Keever said. "Secrecy is the mechanism that links knowledge and power. It disadvantages the most disadvantaged elements of society and puts the power in the hands of insiders."

Changing minds might be easier than changing the law. Although the Legislature this session was asked to consider a handful of bills written to make OIP's job easier, several died without a hearing.

Giving OIP more authority is needed, Kondo said.

"We don't have enforcement power," Kondo said. "We don't have the ability, beyond writing a nasty letter, to enforce something."

A bill giving OIP the power to enforce open government, however, passed through several Senate committees and is now in the House. Under current law, the attorney general can write a second, differing opinion and because that office serves as legal counsel for many of the agencies, boards and commissions, this can create confusion over which agency is right.

Motivating factor

Lack of enforcement was one of the reasons Hawai'i ranked 28th in a nationwide survey of open records statutes conducted in 2002 by the Better Government Association, a nonprofit, Chicago-based civic watchdog group.

Penalties are a strong motivator, said Jay Stewart, executive director of watchdog group. Hawai'i was given a zero in each category, he said.

"If a state employee knows misconduct will be punished harshly for maliciously withholding records, it is less likely he will engage in misconduct in the first place," Stewart said.

State Sen. Les Ihara, D-9th (Kapahulu, Kaimuki, Palolo), who co-authored a bill to give enforcement powers to OIP, said the governor and the mayors could bypass the need for a law by instructing their department heads to comply with OIP opinions.

Another solution, which was contained in a bill that died, would have allowed OIP to enforce open government laws by imposing a fine of $50 a day, he said.

Spreading the word

Creating in-house freedom-of-information experts trained by OIP, something that existed informally in years past, could help government workers and volunteers comply with the law, Ihara said.

"Right now we don't have that and it is hit or miss," he said. "I get calls regularly from people who complain about the simplest things. It is just that an agency's staff is not up to speed."

There is a difference, though, between true believers and reluctant followers. Finding common ground may take more time than money.

"The actions of agencies indicate they are either not fluent in the law or are resistant to provide the public the rights that the law provides to them," Ihara said.

"And agencies feel they have their job to do and this is out of their way. No, no, no, this is part of their job. It is a mindset."

But government cannot do it alone. Some say that citizens have to get involved, much as they did when they rallied to create open government laws.

Keever remembers those days and even suggests that "we are victims of success."

Concerned citizens homed in on open meetings in the 1980s and cheered when OIP was created and "they went gung ho," Keever said.

"A lot of people like me thought, 'Heck, we're done,' " she said. "And we were done on public records for a long time."

Then resources dwindled and watchdog groups folded. In their place are fledgling groups such as the Right to Know Committee, which launched this week with a hot line. It hopes to field requests from citizens too fearful of retaliation to make them on their own, Keever said.

Perhaps the best-known group now absent is the Hawai'i chapter of Common Cause, the national nonprofit public interest group that frequently fought for increased public access to Hawai'i government records.

The group was chaired by community activist Desmond Byrne from 1993 until a year before his death in 1999. Byrne was synonymous with Common Cause, insisting that every citizen had a right to know how tax dollars were being spent and what elected officials were doing.

The Hawai'i chapter of Common Cause closed, however, and there is no longer a public interest group of its type active in the state.

Some view that as a serious setback, among them Byrne's widow, Jo Byrne, owner of a company that researches public records for private clients.

"I miss Common Cause," she said. "We need a watchdog group like that in Hawai'i."

Reach Mike Gordon at mgordon@honoluluadvertiser.com or 525-8012.