Bill that would bar suspension of public records requests during emergency advances

A state Senate bill that would bar the governor or county mayors from suspending requests for public records or vital statistics during a declared state of emergency passed its first committee hurdle in the House.

Senate Bill 134, Senate Draft 1, introduced by Sen. Dru Kanuha, a Kailua-Kona Democrat, passed the House Pandemic &Disaster Preparedness Committee on Tuesday by a 9-0 vote, with one amendment.

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Rep. Linda Ichiyama, an Oahu Democrat and the committee chair, amended the bill to specify that Hawaii Revised Statutes section 127 A-13(3), which gives the governor or mayor “the power to suspend any law that impedes … the expeditious and efficient execution of … emergency functions,” won’t be in conflict with the exemption stated in the measure.

The committee approval comes exactly a year after Gov. David Ige signed a proclamation during the coronavirus pandemic that suspended the state’s Uniform Information Practices Act, a law that specifies government records are open to public inspection with limited privacy exceptions.

Ige, a Democrat, rolled back the blanket suspension of the UIPA in May, but removed the deadline of 10 working days state agencies have to respond to records requests.

Kanuha said he introduced the measure because he considers “transparency and access to public information … really important” — even during an emergency.

“I had constituents calling me trying to receive … access to a lot of their vital records. And it was almost impossible for them to get it,” he said. “And especially, with a lot of these programs and subsidies that were coming through from the feds, a lot of people needed access to vital records — their birth certificates, marriage licenses.

“… On top of that, I think we need to be even more transparent about the actions government is doing, during emergencies, especially.”

There was no in-person video testimony during Tuesday’s hearing, but there were 22 pages of written testimony submitted, mostly in support of the legislation.

Organizations submitting testimony in favor of the measure include the Big Island Press Club, Civil Beat Law Center for the Public Interest, League of Women Voters of Hawaii, Common Cause Hawaii, Society of Professional Journalists Hawaii Chapter and All Hawaii News.

The state Department of Health submitted testimony urging the Legislature “to consider a compromise between 10 days during the height of a public health or environmental health crisis and indefinite suspension.”

DOH said it has “recently learned that administrative rules promulgated by the Office of Information Practices permit agencies in certain circumstances to delay responses to public records requests … by one month.”

“DOH respectfully recommends an additional extension of between three and six months during certain circumstances like an emergency declaration,” the department testified.

OIP took no position of the bill, calling the issue “a policy decision for the Legislature to determine what limit, if any, is appropriate for the governor’s use of emergency powers.”

OIP Director Cheryl Kakazu Park, who submitted eight pages of testimony, said during the 2 1/2 months UIPA was formally suspended, her office “could not accept UIPA appeals, even on record requests made and denied prior to March 16 (2020), but instead had to inform would-be appellants to wait and ask again after the suspension was lifted.”

“OIP’s observation has been that … many agencies have been continuing to respond to UIPA requests in a timely manner, but others have simply not responded and apparently do not intend to do so as long as the suspension of deadlines remains in effect,” Kakazu Park wrote.

Joe Kent, executive vice president of Grassroot Institute of Hawaii, a conservative think tank, submitted testimony labeled “comments only” — but called Ige’s suspension of open records and sunshine laws “an extreme response that was not taken by any other state.”

“Open government is not only at the core of our constitutional principles, it is also essential to uphold public faith in our leaders, their decision-making and in the democratic process,” Kent wrote.

Brian Black, executive director of the nonprofit Civil Beat Law Center for the Public Interest, said the public records law “serves a fundamental role even in emergencies.”

“In crisis, we must reaffirm, not abandon our most basic democratic principles,” Black testified. “When government boldly declares that it will hide information and conceal decision-making, rumor, innuendo and special interests thrive, while democracy withers.”

Michael Phillips, vice president of the Big Island Press Club, noted in testimony for the organization that March 16, the date of the hearing, was “both a happy and sad day for us.”

“It is a happy day because it is Freedom of Information Day, the birthday of James Madison, who was widely regarded as the father of the U.S. Constitution and the leading advocate of openness in government,” Phillips wrote. “But it is a sad day for us because March 16, 2021, is the one-year anniversary in Hawaii of the denial of access to records by a governmental proclamation suspending … the Uniform Information Practices Act.”

The bill has two more committee referrals — the Judiciary and Hawaiian Affairs Committee chaired by Rep. Mark Nakashima, a Hamakua Democrat, and the Finance Committee — before it returns to the full House for a floor vote. Neither committee had scheduled a hearing as of late Tuesday afternoon.

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Editor’s note: John Burnett is immediate past president of the Big Island Press Club.

Email John Burnett at jburnett@hawaiitribune-herald.com.

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