Open Government & COVID-19

Sunshine is the Best Disinfectant

“Sunshine is the best disinfectant” ~Justice Louis Brandeis

On March 16 of this year, Governor David Ige issued a Supplementary Proclamation to the previously issued Emergency Proclamation in response to the COVID-19 crisis. There’s been some to-do about Governor Ige’s decision to suspend Hawaii’s Sunshine Law in the wake of the Coronavirus emergency.

This proclamation, among other things, suspends Chapter 92 HRS and Chapter 92F HRS. Chapter 92 deals with public agency meetings and records and is generally referred to as “Hawaii’s Sunshine Law”. 92F deals with the Uniform Information Practices Act commonly referred to as UIPA or the open records law.

The suspension of these two laws has generally gone with little or no push-back from the public. Though some have raised concerns.

Hawaii’s Sunshine Law

The bulk of what we know today as The Sunshine Law was passed in 1975 as ACT 166 and begins with the Chapter’s “Declaration of policy and intent.”

In a democracy, the people are vested with the ultimate decision-making power. Governmental agencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public’s interest.

A noble sentiment. Though the legislature did, in a manner of speaking, exempt themselves from this Chapter. They included language which allows the Legislature to determine “which rules and procedures shall take precedence” over this law.

Abandoning Transparency in a Crisis

It isn’t unreasonable that in times of crisis government functions may need to be streamlined to allow agencies to move nimbly and efficiently. We are undeniably living through one of those times. Priorities must lean toward addressing the health and safety of the public.

But in times like this, there is an inevitable struggle between finding a balance between prioritizing health and safety and ensuring the public’s right to know.

At the end of March, a letter was sent to a number of elected officials, including the Governor. The letter, signed by approximately 40 individuals and organizations, urges that all meetings which previously were held publicly continue to be so. At its core, the letter echoes the intent of Chapter 92:

The public needs to be able to participate in government in order for democracy to continue to function. Government transparency and support of the public’s right to know are more, not less, critical during emergency situations.

I couldn’t agree more and want to highlight Chapter 92-8, which allows for a loosening of some Sunshine requirements. “If a board finds that an imminent peril to the public health, safety, or welfare requires a meeting in less time than is provided for in section 92-7, the board may hold an emergency meeting” providing that certain steps are taken.

Though some agencies and elected officials might believe that Chapter 92-8 does not provide enough flexibility in light of the current crisis, it is always during periods of crisis when government takes it upon itself to roll back democratic processes and limit civil liberties.

Hawaii’s Uniform Information Practices Act (UIPA)

The Hawaii State Legislature passed the UIPA law in 1988 as ACT 262 and the purpose section very closely mimics that of Chapter 92. Importantly, Chapter 92F:

…shall be applied and construed to promote its underlying purposes and policies, which are to:

(1) Promote the public interest in disclosure;

(2) Provide for accurate, relevant, timely, and complete government records;

(3) Enhance governmental accountability through a general policy of access to government records;

(4) Make government accountable it individuals in the collection, use, and dissemination of information relating to them; and

(5) Balance the individual privacy interest and the public access interest, allowing access unless it would constitute a nearly unwarranted invasion of personal privacy.

Suspension of UIPA Seems Unnecessary

The letter highlights concern over access to government functions. However, it glosses over the Governor’s emergency suspension of Hawaii’s UIPA law.

As highlighted in Nike Grube’s article, “Suspension Of Hawaii’s Open Government Laws More Extreme Than Other States”, Ige’s Administration has been repeatedly criticized for its initial and ongoing response to COVID-19. The order to suspend UIPA came before Governor Ige issued the statewide work-from-home order.

What gives?

When asked, the Governor’s office said the decision was necessary to allow agencies and offices to focus on the crisis. Not frivolous UIPA requests. The talking points aren’t difficult to develop.

As Grube points out, the administration has been criticized by doctors, the legislature, and the public for some of the decisions made. Also regarding its overall approach to the crisis, and what, if any, information is being shared.

I can understand the decision to recess the legislature and put a halt to public meetings. What is baffling to me is this decision to deny the public access to potentially vital information that may or may not be being withheld.

In a democracy, I would argue that state workers who are tasked with collecting information and responding to relevant UIPA requests should be considered “essential”. To me, relevant requests for information must be limited in scope to the government’s response to the COVID-19 pandemic.

We Must Expect and Demand Better of Our Leaders

Decades after Chapters 92 and 92F were codified, we have technological means beyond what might have been imagined back then. Our ability to communicate and decimate information via the internet and mobile devices means, to some extent, we don’t need to be in the same room as those making the decisions. Nor should making requests for and receiving relevant and informative documents be overly burdensome.

Given this technological ability, it seems Governor Ige’s suspension of Chapters 92 and 92F, appear to be unnecessary.

Now, perhaps more than ever, the public has a right to know what discussions are taking place and what decisions are being made. We cannot allow the maiming of democracy to occur in the name of expediency.

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