Hill adds oral comments about potential loophole to state open-records law

The following are comments presented Oct. 4, 2022, by Malia Hill, policy director of the Grassroot Institute of Hawaii, to the SR192 Working Group, which is considering a proposal that would incorporate a “deliberative process privilege” into Hawaii’s open-records law. A transcript is included. To see the complete written testimony, go here.

Malia Hill, 10-4-22 Malia Hill comments before the SR192 Working Group

Cheryl Kakazu Park:* I see Malia Hill is in the waiting room. Do you want to let her in to testify? She is signed up to testify next.

Malia Hill: [laughs] Hello. I’m assuming that you all can hear me. My name’s Malia Hill. I’m with the Grassroot Institute of Hawaii, and I would like to echo the previous testifiers in saying that we also do not see the necessity of a deliberative-process privilege, based on our own experience in our frustrations and obstruction in obtaining government records. 

But also just on principle, though OIP [the Hawaii Office of Information Practices] very specifically talks about decisional, the decision-making, the decision-making process deliberations being something that needs to be open to public scrutiny. 

Notwithstanding that, we do appreciate your work. And we do have comments specifically about the draft legislation.

Regarding the preliminary documents element in the definition, we have some concerns that this effort to transform a sort of musing in a court opinion into the full force of a statute, it creates a huge loophole. We need something more narrowly construed, something that takes it from, “These kinds of things might [or] may be not government records” and create a bright line that says, “Exactly these kinds of things are not.” 

We think that the line should probably be drawn somewhere around the point at which a document is shared either with someone in the agency or without. We go into that more in our written testimony. You can see our proposed language.

Our other concern is this idea that — while we like the idea that if this privilege existed, it would have a natural expiration at a point an issue is abandoned or decided on — our experience is that an agency can argue that it’s not been abandoned. That decision-making goes on for years and all this time these records are not available to the public. We think there should be a hard date, a hard time limit for the existence of any such privilege. 

Again, we have a language that we suggest in our written testimony. But we suggest a year from the creation of a record is more than sufficient, at which point it can be open to the public, and in fact should be even before that point.

Park: Thank you, Malia.

* Cheryl Kakazu Park is director of the Hawaii Office of Information Practices.

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