Hawaiian Shell Lei.”

February 6, 2019; Honolulu Civic Beat

There is a lot of talk about transparency in government these days. People, the media, and policy organizations alike expect to be able to access information and records, including their own, without being subject to roadblocks. In Hawaii, despite a lot of pushback that includes lawsuits and audits, a glimmer of sunlight is beginning to shine through. Getting there was not easy, and the reasons for the blockades remain somewhat puzzling.

Of some concern is what was called the “gut and replace” practice of the Hawaii Legislature, whereby the contents of a bill can be removed and replaced with entirely different language, even after the bill has had public hearings and been approved by certain committees. To combat this, a lawsuit was filed by the League of Women Voters and Common Cause and joined by others, including media and party-affiliated groups. The Circuit Court dismissed the suit, but the League and Common Cause plan to appeal.

In some cases, made-up policies block transparency. Consider Hawaii’s “deliberative process privilege.” Public agencies had been using this nonexistent “privilege” to withhold records from the public. But the Hawaii Supreme Court ruled that no such privilege existed. Following up on this legal ruling, the Civil Beat Law Center for the Public Interest, joined by more than 20 media outlets and nonprofit policy organizations, sent a letter to all four county [island] mayors, urging them to improve public access to government information and documents.

Lawsuits get the best results when seeking information in Hawaii. Even when laws exist, it seems they can be ignored until someone files a suit to get information that should be publicly available. Employment records are one of those areas. Civil Beat has filed a lawsuit against the Hawaii Department of Education to gain access to information about why employees are terminated and students disciplined.

The DOE refused to turn over most of the records or provided heavily redacted documents in response to a public records request last May.

“It is clear that DOE is not following the law, and this case provides an opportunity for the courts to reaffirm several principles of open government established in OIP (Office of Information Practices) opinions,” said Brian Black, executive director of The Civil Beat Law Center for the Public Interest, which is representing Civil Beat in the case.

Under the Uniform Information Practices Act, Hawaii’s public records law, government agencies must disclose records relating to employment-related misconduct that results in termination or suspension.

Recognizing that transparency and privacy issues often collide, Civil Beat says that it is not seeking identities of students or individual contact information. What it does want are the reasons for the terminations or the discipline, and the offenses that caused the investigations in the first place. It is, however, seeking the names of employees, their schools, and the grades they taught. This was enough for the agency to cite “personal privacy” and “frustration of a legitimate government function” as their reasons to withhold information.

Indeed, an argument can be made for both transparency and privacy when employment and employability is at stake. Civil Beat argues in its filing that the state department of education should not be withholding minor reprimands (after redacting identifying information) from the public. State officials have not commented on the lawsuit.

As the struggle to access information continues, so will the cry for greater transparency and the counter-cries for the need for privacy and protection. In Hawaii, it has taken lawsuits and lawyers, audits and outrage, and much time and money to resolve some of this and peel back the barriers to greater access and transparency. More work remains, and the pushback isn’t going away.—Carole Levine