KAILUA-KONA — Eighteen months later, there is still no answer from the state Office of Information Practices about whether the Commission on Water Resource Management violated the Sunshine Law during Kona site visits in 2014.
Turns out, this kind of wait is the norm.
An office that historically has struggled with a backlog of cases still has not taken up the matter. The case was one of 113 that remained unresolved as of April, according to OIP. The number represents a decrease from the 151 outstanding cases measured in that month the previous year.
The complaint lodged in October 2014 by the Hawaii Leeward Planning Conference alleges CWRM’s investigative meetings to county wells and national park sites in September and October 2014 should have been open to the public.
“(The) appeal is pending, and will be addressed after older pending files, consistent with our first-in-first-out policy,” OIP attorney Jennifer Brooks said.
The office has the responsibility of administering the state’s open meetings law, and its opinions are enforceable in the courts. The office has been rendering opinions on incidents that occurred two years ago, on average.
Formed in 1974, the Hawaii Leeward Planning Conference is a Waimea-based consortium of some 75 businesses, developers, land holders and other companies. Its president, Jacqui Hoover, said a timely response with clarification would have been preferable to the wait. But with changes to the board chairmanship, the elapsed time and the fact the incident wasn’t repeated, the matter could now be moot.
“After submitting the letter detailing our concerns and calling OIP, we were initially told that an opinion would be forthcoming and no date on when that would occur,” she said. “In following up three times, we were advised the same.”
OIP did not provide an estimate for when it will render an opinion on the complaint in question. Its findings might help determine if the Keauhou aquifer should be designated a state water management area. The commission has not yet made a decision on designation.
The backlog at OIP isn’t as bad as it has been. The oldest cases not in litigation are 2 years old, compared to cases as much as 4 years old in 2014 and 12 years old in 2011, according to the office’s 2015 annual report.
HLPC’s case is part of a contentious process of determining whether the aquifer is under a threat from potential overuse.
“As the Sept. 17 and Oct. 9 site visits were to inform CWRM as it deliberates on the NPS Petition, these site visits were clearly meetings,” the original complaint states. “The meeting notice provided by CWRM indicated that these were not public meetings, which created confusion as to what rights the public were entitled to and what CWRM’s obligations and limitations were under the Sunshine Law. Moreover, there were several violations of the open meeting requirements during these site visits.”
Commissioners countered that public meeting laws can’t apply to boards making scientific investigations while trying to determine public policy — and that scheduled public meetings provided other opportunities for input.
The state Water Code requires an investigative process that is exempt from open meeting laws, according to the commission.
“HLPC seeks to convert every step into an occasion for public testimony,” CWRM wrote in response to the complaint. “That is not the process the Legislature created in the Water Code. It is unworkable.”
Email Bret Yager at byager@westhawaiitoday.com.
