SB2686 an impractical approach to public servant privacy protection

The following testimony was submitted by the Grassroot Institute of Hawaii for consideration by the Senate Committee on Judiciary on Feb. 27, 2024.

Feb. 27,  2024, 9:31 a.m.
Hawaii State Capitol
Conference Room 016 and Videoconference

To: Senate Committee on Judiciary
       Sen. Karl Rhoads, Chair
       Sen. Mike Gabbard, Vice-Chair

  From: Grassroot Institute of Hawaii
             Ted Kefalas, Director of Strategic Campaigns


Aloha Chair Rhoads, Vice-Chair Gabbard and Committee Members,

The Grassroot Institute of Hawaii would like to offer its comments in opposition to SB2686, which would carve out a broad and vague exception to the open records law regarding the personal information of public servants, their families and household members, if disclosure could expose that person to “harassment threats, or violence.”

The problems with this bill are so numerous that a detailed explanation of each would be overwhelming. However, they include:

>> The creation of a special category of privilege not just for public servants, but for anyone remotely associated with a government employee. Not only does this run counter to the intent of the open records law, but it creates a significant practical problem in application.

>> A definition of what qualifies as protected information so vague that it implies an enormous amount of discretionary power in allowing an agency to determine whether to disclose or not. This also runs contrary to the intent of the open records law and would create a conflict in fair application of the law. Moreover, SB2686 would require agencies to consider the intent behind a request, something that is far outside of the scope of the open records law, is not part of the usual UIPA request, and seems to require agency officials to become mind readers.

>> Constitutional implications regarding the removal of information on public websites.

>> Significant practical considerations in oversight and application, such that multiple state agencies have already testified about the conflicts inherent in any attempt to abide by its directives. Note that the state Office of Information Practices has highlighted several ways in which the bill’s language directly contradicts disclosure laws regarding issues such as  property tax records and license information — things  that clearly fall  within the public’s “right to know.”

>> A litigation incentive for those whose information has been made public that will discourage agencies from disclosing public information for fear of lawsuits.

The intent of this bill is to protect public servants and their families from , but it is evident that the open records law is not the proper vehicle for that purpose. There is already an exception to the UIPA for protected personal information, making this an unnecessary addition to that statute.

Moreover, the approach outlined in SB2686 runs counter to the intent of the open records law, creating an insurmountable conflict between the preference for disclosure underlying the open records law and the preference for withholding information outlined in this bill.

While the protection of privacy is a worthy goal, it must be balanced against equally important speech and transparency considerations.

We suggest that the Legislature seek a different, more finely tuned approach to protecting government employees from harassment and defer SB2686.

Thank you for the opportunity to testify.

Ted Kefalas
Director of Strategic Campaigns
Grassroot Institute of Hawaii

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