‘Predecisional’ exemption for public records would thwart accountability

The following testimony was presented Feb. 2, 2023, by the Grassroot Institute of Hawaii to the Senate Committee on Government Operations.

Feb. 2, 2023
3:15 p.m.
Conference Room 225

 To: Senate Committee on Government Operations
       Senator Angus L.K. McKelvey, Chair
       Senator Mike Gabbard, Vice Chair

From: Grassroot Institute of Hawaii
           Joe Kent, Executive Vice President


Comments Only

Dear Chair and Committee Members:

The Grassroot Institute of Hawaii would like to offer its comments on SB720, which would add an exception to Hawaii’s open records law for “deliberative and pre-decisional” government inter- and intra-agency records concerning an agency decision about a government action. 

The Institute appreciates the effort put into this proposal by the working group tasked with examining the deliberative-process exception and drafting model legislation. 

We understand that it is not an easy task to balance the competing interests of the public’s right to know with the need for a state agency to make sound and considered decisions. 

During that process, the Grassroot Institute submitted comments to the working group expressing our concerns about the definition of “predecisional documents,” as well as about the need for a time limit for disclosure of documents where no decision has yet been made. 

It is clear that the working group has made a laudable effort to address these issues. The three-year limit — after which a matter is considered “abandoned,” thereby opening up related documents for disclosure — is a good addition, though we suggest it be shortened by at least 18 months.

While we are cognizant of the effort that went into this proposal, we maintain that a deliberative-process exception would frustrate the intent of the state’s transparency laws, which by making government deliberations and actions available to the public are meant to ensure accountability and discourage corruption.

As a research and government watchdog organization, the Grassroot Institute is well acquainted with the mechanisms employed by government agencies to avoid disclosure. 

Based on our experience, we can attest to the fact that this exception would give agencies leeway to withhold nearly anything under the claim of “deliberative process.” Moreover, it would encourage agencies to conduct key government functions in a way that could shield them from disclosure. 

Though this bill seeks to carefully delineate what documents can be deemed “predecisional” and therefore withheld under the exception, the inherent conflict between the public interest in disclosure and the agency’s desire to withhold, as well as the ambiguity of the “deliberative process,” guarantees more challenges and disputes. 

Much of the work done by government agencies is deliberative in nature and an agency that is determined to obstruct records requests is incentivized to categorize large numbers of documents as “predecisional.” 

Given the wording of the bill, a particularly secretive agency could even organize its activities in such a way as to classify more and more of its records as deliberative in nature.

During the working group’s public comment period, every public interest group that testified spoke against the creation of this exception. Among advocacy groups, there is near-universal agreement that this exception will be employed to frustrate open records requests.

From the point of view of a government watchdog organization, the deliberative exemption guarantees that requests to certain agencies will turn into endless battles over what, if anything, must be disclosed to the public. 

Moreover, this exception is not necessary. It has not existed in Hawaii law for many years and there is no evidence that the lack of such an exception has frustrated the ability of government agencies to carry out decision making processes. 

If government agencies are concerned about privacy or disclosures that obstruct their ability to carry out their duties, there already are exceptions in the law that would address such issues. There is nothing remarkable about the deliberative process in itself that warrants special treatment. 

Given the need to restore public trust in Hawaii’s government, we believe that more transparency, not less, is the best route forward. 

It is our belief that an exception for government records related to decision-making runs counter to the spirit of Hawaii’s Uniform Information Practices Act. Its statement of purpose and rules of construction very clearly include disclosure of agency deliberations and the decision-making process. 

HRS Ch. 92F-2 states: “Therefore the legislature declares that it is the policy of this State that the formation and conduct of public policy — the discussions, deliberations, decisions, and action of government agencies — shall be conducted as openly as possible.” 

To stay true to the intent of the law means that any exception should be biased towards timely disclosure, not secrecy. 

Thank you for the opportunity to submit our comments.


Joe Kent
Executive Vice President
Grassroot Institute of Hawaii

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