Whether agencies have the right to appeal OIP determinations

…was heard by the Hawaii Supreme Court earlier this month. Kauai v. OIP oral arguments are available on the judiciary website here. The ICA opinion is here.

The Office of Information Practices asserts in its application for writ of certiorari that the decision appealed from:

will significantly impact the public's access to its government's records, open the floodgates to litigation against OIP, undermine OIP's ability to provide an effective and efficient means for the public to appeal a government agency's denial of access, and provide authority for the liberal closing of government board meetings to the public based upon an overly broad interpretation of the attorney consultation exception to open meetings.

The case arose from an executive session held by the county council to discuss whether to investigate allegations of unethical activity in the Kauai Police Department. Kauai Police Commission Chairman Michael Ching subsequently asked the OIP to determine whether the closed meeting was proper under the state sunshine law. The OIP determined that the material discussed was not properly closed to the public and ultimately demanded that the county disclose the minutes except for limited portions constituting attorney-client privilege.

The county asked the 5th Circuit Court to declare OIP’s opinion invalid. There the OIP and the county got into an argument about whether the court had jurisdiction over the matter. The OIP argued that under the Uniform Information Practices Act (UIPA) agencies do not have the right to appeal OIP determinations. The county argued that under the state sunshine law agencies do have the right.

So they argued over which law governs – the UIPA, or the sunshine law. It’s an interesting question because, as the ICA would later point out, “both chapters…apply.” The UIPA requires the county to make public the minutes of “all agency meetings required by law to be public,” while the law that determines whether an agency meeting is required to be public is the sunshine law.

The OIP strenuously argued – and continues to argue – that “the Legislature’s clear intent [is] that, for public policy reasons, OIP, and not the courts, [is] the arbiter with final authority to order an agency to disclose a government record OIP deems public under the UIPA.” The circuit court disagreed, applied the sunshine law, and announced that it had jurisdiction over the matter.

In upholding the circuit court’s determination, the ICA noted a rule of construction whereby specific statutes are favored over general ones where there is an irreconcilable conflict between the two. The ICA reasoned that the sunshine law, specifically governing the question of what meetings are required to be public, is the specific law while the UIPA is the more general law.

The OIP makes a strong argument as to legislative intent. Specifically, OIP quotes the conference committee report on the relevant Senate bill as stating:

Your Committee wishes to emphasize that while a person has a right to bring a civil action in circuit court to appeal a denial of access to a government record, a government agency dissatisfied with an administrative ruling by the OIP does not have the right to bring an action in circuit court to contest the OIP ruling. The legislative intent for expediency and uniformity in providing access to government records would be frustrated by agencies suing each other.

Nevertheless, questions raised by the Supreme Court seemed to indicate some due process concerns with leaving an administrative agency using relatively informal procedures as the tribunal of last resort on questions of government agency disclosures.

The Supreme Court also noted that a UIPA exception for disclosure exists for “[g]overnment records which, pursuant to… an order of any state or federal court, are protected from disclosure.” As it turns out, the records in question have been subpoenaed in connection with a federal court civil action and there happens to be a federal court order requiring that the minutes in question be withheld.

(Cross-posted at Hawaii Appellate Law Blog)