Testimony: ‘Deliberative process’ loophole would encourage secrecy

from Grassroot Institute of Hawaii, April 21, 2022

The following testimony was submitted by the Grassroot Institute of Hawaii for consideration April 21, 2022, by the House Committee on Judiciary and Hawaiian Affairs.
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To: House Committee on Judiciary and Hawaiian Affairs
      Rep. Mark M. Nakashima, Chair
      Rep. Scot Z. Matayoshi, Vice Chair

From: Grassroot Institute of Hawaii
           Joe Kent, Executive Vice President

RE: SCR192 SD1 — REQUESTING THE OFFICE OF INFORMATION PRACTICES TO CONVENE A WORKING GROUP TO DEVELOP RECOMMENDATIONS FOR THE TREATMENT OF DELIBERATIVE AND PRE-DECISIONAL AGENCY RECORDS

Comments Only

Dear Chair and Committee Members:

The Grassroot Institute of Hawaii would like to offer its comments on SCR192 SD1, which proposes the creation of a working group to develop recommendations for a statutory exemption to Hawaii’s open records law and the treatment of deliberative and pre-decisional agency records.

The institute commends the Legislature for amending the original wording of this resolution to put a greater stress on the importance of transparency and the public interest in disclosure, but we continue to have reservations about any effort to establish a deliberative-process exemption to the state Uniform Information Practices Act. While it is laudable to try to balance effective governance and transparency in the statute, in practice, this exemption would be little more than a loophole by which state agencies could evade records requests. 

Any exemption that gives agencies the ability to determine for themselves what records should be protected as “deliberative” would frustrate the intent of the state’s transparency laws, which are meant to ensure accountability and discourage corruption by making government deliberations and actions available to the public.

As a research and government watchdog organization, the Grassroot Institute is well acquainted with the mechanisms employed by government agencies to avoid disclosure. 

Based on that experience, we can attest to the fact that the exception would give agencies leeway to withhold nearly anything under the claim of “deliberative process.” Moreover, it would encourage agencies to conduct key government functions in a way that could shield them from disclosure. 

Though the working group is meant to find some compromise between the duty to disclose and the desire of agencies to withhold documents they deem “predecisional,” the inherent conflict between those interests as well as the ambiguity of the “deliberative process” guarantees more challenges and disputes. After all, most of the work done by government agencies is deliberative in nature and everything but a final decision or report can be classified as “predecisional.” 

From the point of view of a government watchdog organization, the deliberative exemption guarantees that requests to certain agencies will turn into endless battles over what, if anything, must be disclosed to the public. It is not hard to imagine that some state agencies already notorious for their lack of openness will abuse the deliberative exemption to avoid fulfilling UIPA requests.

If government agencies are concerned about privacy or disclosures that obstruct their ability to carry out their duties, there already are exceptions in the law that would address such issues. There is nothing remarkable about the deliberative process in itself that warrants special treatment. 

Given the need to restore public trust in Hawaii’s government, we believe that more transparency, not less, is the best route forward. 

The Legislature is currently seeking ways to improve its own transparency and accountability to the people of Hawaii. This is no time to exempt government agencies from that same responsibility.

Under the circumstances, it would be a mistake to create a UIPA exception that would allow government agencies to hide their decision-making processes from the public.

Thank you for the opportunity to submit our comments.

Sincerely,

Joe Kent
Executive Vice President
Grassroot Institute of Hawaii