It shouldn’t take audits and lawsuits for government to be transparent

As the Hawaii Legislature and county councils work into the new year, Hawaii residents should keep pressuring them to be more transparent.

And it’s not like we’re asking them to do anything that isn’t already part of Hawaii law. Yet still there are state and county officials who seem to reject transparency as a priority.

For example, the state auditor in January revealed that the staff of the Honolulu Authority for Rapid Transportation had been misleading the public and even its own board of directors about the costs and completion schedule for the city’s over-budget and behind-schedule rail project.

Then there’s the Legislature’s practice of “gut and replace,” whereby the contents of a bill can be removed and replaced with entirely different language, even after the bill has had public hearings and been approved by certain committees.

The League of Women Voters and Common Cause filed a lawsuit in September to end this deceitful practice, with support coming from the Honolulu Star-AdvertiserHawaii Republican Minority Caucus and Grassroot Institute of Hawaii. A Circuit Court judge dismissed the case last month, but the two groups said they will appeal the ruling.

There also has been a lack of transparency at the Honolulu Police Department, whose officials have put off telling the Honolulu Police Commission, and declined to tell the media, why it has refused through the years to issue concealed-carry handgun permits to apparently qualified applicants.

Hello, Sunshine

A ray of hope was seen in December when the Hawaii Supreme Court sided with Civil Beat in a case that challenged the practice known as the “deliberative process privilege.” It concerned a non-existent “privilege” that public agencies such as the Honolulu Department of Budget and Fiscal Services had been relying on to justify withholding records from the public.

The court ruled that “the deliberative process privilege … is clearly irreconcilable with the plain language and legislative history of Hawai‘i’s public record laws,” and further decided that, “The (Honolulu) Office of Information Practices therefore palpably erred in interpreting the statutory exception to create this sweeping privilege.”

Brian Black, executive director of the Civil Beat Law Center for the Public Interest, followed up the victory by sending a letter to all four county mayors, calling on them to improve public access to government information. Specifically, he urged that the counties “presume that government documents are public and invoke exceptions to disclosure only if they must, not simply because they can.”

“It’s not like we’re asking government to do anything that isn’t already part of Hawaii law.”

Signed by more than 20 media outlets and nonprofit policy organizations, including the Grassroot Institute of Hawaii, the letter further said that, “All of these proposals follow established models in federal policy and are consistent with the Legislature’s intent in enacting the Uniform Information Practices Act,” meaning these actions should have been best practice all along.

In other words, if Hawaii public officials had simply followed the spirit of existing law to begin with, none of these audits, lawsuits and letters would have been necessary.

HART staff would have presented accurate information to its board and the public. The Legislature could have stopped engaging in “gut and replace” ages ago. County officials could have released their public records to Civil Beat. And HPD could have simply explained itself to the Honolulu Police Commission.

Instead of waiting for more costly audits and lawsuits, local government officials should simply provide public information when asked, subject to legitimate personal privacy protections, and repeal any laws that make such withholding possible.

Perhaps then the public would trust that our lawmakers and agency officials are honoring the Hawaii Constitution’s preamble to be “a government of the people, by the people and for the people.”


This commentary was originally published on Feb. 6 in Civil Beat.

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