End COVID-19 transparency dodge

by Keli'i Akina, Ph.D.President / CEO Grassroot Institute

Hawaii businesses might be reopening, but Hawaii government agencies still have a ways to go.

In the past, government agencies here have been criticized for their lack of transparency. Despite the state’s open-records law, some have become notorious for denying open-records requests or delaying their responses. We have seen various legislative proposals meant to address backlogs, delays and the appeals process for records requests, but most reform efforts have failed.

In other words, even in ordinary times, government transparency in Hawaii falls short. During the COVID-19 state of emergency that started 15 months ago, things have gotten much worse.

In one of his earliest emergency orders, Gov. David Ige did something unprecedented: He suspended Hawaii’s open-records and open-meetings laws entirely. Some states adjusted the requirements of their transparency laws to account for the delays and logistical hurdles caused by the stay-at-home orders, but Hawaii was the only state to take such extreme action.

After protests from the Grassroot Institute of Hawaii, Common Cause Hawaii, the Civil Beat Law Center and other groups, the governor revised that initial suspension of the state’s transparency laws. Working with those public interest groups, he came up with a compromise that allowed open-meetings or “sunshine” requirements to be met through virtual and remote technology. 

The open-records law also was restored, but without deadlines. Agencies weren’t required to do much more than acknowledge requests and do their best to respond, if they could.

In the year since, the governor has slowly reinstated some of the open-records law, but he has yet to return it to full force. His most recent “supplemental proclamation” — No. 21 and counting — suspended deadlines to produce public records only if it would impair an agency’s COVID-19 response efforts, the agency is dealing with a backlog of requests, or the requests require review of hard copy documents. 

This is an improvement on the situation a year ago, but it brings up an important question: Why is this law still suspended at all?

In case you missed it, the Honolulu Star-Advertiser reported this week that the governor’s ongoing suspension of open-records requests has resulted in a “carte blanche” for agencies trying to dodge state law. The governor’s office alone has yet to process nearly half of the records requests it has received during the state of emergency. 

According to reporter Sophie Cocke, when The Associated Press filed an open-records request for communications related to the state’s COVID-19 response, it took Ige’s office a year to turn over 1,655 pages of documents. And that was only a partial response. The office says it will need another 600 hours to complete the request.

If this is the example being set by the executive office, it’s no wonder that other agencies are taking full advantage of the COVID-19 transparency dodge. 

The Grassroot Institute frequently uses information requests for research and in our role as a government watchdog. Over the past year, we’ve had our share of problems with slow agency responses to records requests. 

As recently as May 28, we had a response from the Honolulu Authority for Rapid Transportation that cited a “natural disaster” as the reason it could not respond within the statutory time frame to our request for its rail ridership projections. We're still waiting.

It’s hard to imagine how HART’s resources could be tied up by its response efforts to the coronavirus. It is far more likely that the agency is taking advantage of the timing loophole created by the governor — and we all know HART likes to play its cards close to its vest anyway.

During the legislative session, the Grassroot Institute of Hawaii testified in favor of a bill that would have prevented the governor or any of the mayors from suspending open-records laws during an emergency. Unfortunately, the proposal never made it out of conference committee.

It’s as though no one in the state government is taking the issue of transparency very seriously. And that’s a dangerous precedent to set.

Over the past year, the governor and Legislature have repeatedly asked the public to trust in their emergency-related decisions. But when the government is not open and transparent about its actions and decision-making, public trust will slowly erode, and along with it will go civic engagement, our sense of community and the authority of our political representatives. 

The state open-records law should never have been suspended in the first place. The governor should remove any remaining suspensions or limitations, and the Legislature should install safeguards to ensure that this cannot happen again. 

It’s time to restore government transparency and accountability in Hawaii. 

E hana kākou! (Let's work together!)