Posted on: Thursday, March 24, 2005

Information-access bill stalls

By Gordon Y.K. Pang
Advertiser Capitol Bureau

A Senate bill that would give more enforcement authority to the Office of Information Practices, including the ability to waive fees for the public to obtain a government record, will not get a hearing before the House Judiciary Committee this year.

To move out of the Legislature this year, Senate Bill 1551 needed to move out of the Judiciary Committee by today. No hearing was scheduled.

The bill would:

• Give the OIP authority to waive fees for someone to obtain a government record if the public interest is served by a waiver.

• Allow the OIP to enforce the open meeting and records laws of the state Sunshine Law.

• Allow the OIP or the public to sue a state or county agency to void an action it took in violation of the Sunshine Law even if it was not willful.

House Judiciary Chairwoman Sylvia Luke, D-26th (Punchbowl, Pacific Heights, Nu'uanu Valley), said she is not opposed to the fee waivers and will consider putting such language into another bill this session.

Luke said she won't hear the Senate bill because she opposes the language giving OIP enforcement authority. She said she supports allowing the voiding of non-willful actions taken in violation of the Sunshine Law. That section, however, was inserted by her committee into another bill at the behest of OIP director Les Kondo, thus negating the need for SB 1551, she said.

Officials with Citizen Voice, Hawai'i Pro-Democracy Initiative, Right To Know Committee and the League of Women Voters say the entire bill, which they have dubbed "the Freedom of Information Bill," should be approved to ensure public access and open government.

"The intent is to create a more open system and to be supportive of having an office that can do its job objectively and do it on behalf of the entire community and not just a few people," said Peter Bower, president of Citizen Voice. "It's very critical that some of the decision making that goes on here ... become much more open and much more of a collaborative effort between the community and the legislators."

Bower said the OIP should be given the ability to waive fees to access government records to guarantee that state agencies do not discourage public access by requiring large fees to see documents.

In one recent case, a journalist was told by a state agency she would need to pay $4,270 to cover the state's costs to review the records and remove confidential material from them. After the journalist appealed to the OIP, the department lowered its fee to $190.

Luke said she is not opposed to allowing the OIP to waive fees. She said she will talk to senators during the conference committee phase of this year's session about placing such language into House Bill 551.

That measure includes the language making it easier for the public to invalidate actions taken by a state or county agency in violation of the Sunshine Law.

Kondo, the OIP director, said he does not oppose giving his office the authority to waive fees mandated by other agencies, but believes it is unnecessary.

"I was concerned that this would require additional work on our behalf and we just don't have the bodies to be able to respond and do the additional work in as timely a fashion as it would need to be done," he said.

At the same time, he said, the OIP now gets only between three to four complaints about excessive fees each year. In such cases, the OIP steps in and asks an agency to justify such fees, he said.

Kondo's office proposed some of the other portions of the bill, such as allowing the public to sue to void an action taken by an agency in violation of the Sunshine Law without needing to prove it was "willful."

"To me, whether a violation is willful, the public is harmed in the same way," Kondo said. "They didn't get notice of the meeting or they weren't able to participate because (government) did it behind closed doors when it should have been open."

Luke said while she supports that change, she believes the proposal giving Kondo's office authority to enforce compliance of the Sunshine Law is not well thought out. Among the concerns, she said, is that the proposal does not include penalty provisions. "Otherwise, we're just creating some kind of a facade they can do it but without giving them the actual ability to do it."

Reach Gordon Y.K. Pang at gpang@honoluluadvertiser.com or at 525-8070.