Shining a Light on the Legislature

Hawaii Together, Feb 15, 2023

Corruption. Fraud. Bribery. These words and others now routinely make headlines in Hawaii. High-ranking public officials have been convicted of all sorts of criminal behaviors over the past decade. But why? And can anything be done about it?

Brian Black, president and executive director of the Civil Beat Law Center for the Public Interest, thinks one key to helping avoid these scandals is to make our state and local governments more transparent.

Several bills to advance transparency and accountability are moving forward, partly because of groups like the Civil Beat Law Center. But some government agencies oppose them.

Do any of these bills have a chance?

Why are some agencies opposing them?

How can Hawaii citizens get involved?

On today’s episode of 'Hawaii Together,' Black joins host Joe Kent, executive vice president of the Grassroot Institute of Hawaii, to address these questions, and discuss why accountability is critical for a functioning democracy.

TRANSCRIPT

2-14-23 Joe Kent hosts Brian Black on “Hawaii Together”

Joe Kent: Aloha, and welcome to “Hawaii Together” on the ThinkTech Hawaii broadcasting network. I’m your host, Joe Kent, executive vice president of the Grassroot Institute of Hawaii. 

Scandal, corruption continue to rock Hawaii politics. 

Just last week, a Maui County worker was sentenced to 10 years in prison for accepting bribes, and over the past few years, many elected leaders and appointed government officials in Hawaii have been convicted in corruption cases, leaving us to wonder: What the heck is going on? 

Is it unchecked individual greed? Is it a lack of character? Or just plain stupidity? Or is it something about the system of government itself? 

Well, do we have so many regulations that bribery is considered an easy way to get things done? Or do we just not have enough government transparency, making it easy for government officials to hide their tracks when they’re up to no good? Or maybe it’s both. 

But in any case, is there anything we can do about it? 

My guest today joins me to help answer these questions. He’s well-known to many of you as an advocate of transparency and good government, and he’s Brian Black, the executive director of the Civil Beat Law Center for the Public Interest. 

Today, Brian Black and I are going to discuss the importance of transparency in government, and what, if anything, is being done at the Legislature this year to make sure we have as much of it as we can.

Kent: Thank you so much for talking with me today, Brian.

Brian Black: Yeah, thanks for having me, Joe.

Kent: Now, before we begin with the main topic, can you introduce yourself to our viewers and explain how you became so interested in promoting open government, and tell us a little bit about the Civil Beat Law Center as well, and how did you come to be involved with it?

Black: Sure. So, the Civil Beat Law Center for the Public Interest has been around for almost 10 years now, and our focus is on promoting transparency, promoting things that would help government work better. 

And so, a large part of what we do is help the public out with access to government records, access to open meetings, and also dealing with issues related to ceiling in the courtrooms.

Kent: I see. And how did you get interested in the idea of transparency and promoting open government?

Black: Dealing with lots of different issues over the years, as in my career as an attorney, and then when this job became available, and learning more about how I can help the community and help Hawaii to be better.

Kent: Great. OK, well, we need people like you to help open up more transparency in Hawaii, and we’re doing our part at Grassroot. But let’s talk about government transparency and accountability. There’s been a lot of concern about public corruption in the past year.

Last year we had a sitting state senator and state representative who were convicted of accepting bribes, and before that, there was the shameful “mailbox conspiracy,” including Honolulu’s police chief and his wife, a city prosecutor. And then there’s been numerous civil servants throughout the islands convicted of bribery, including one on Maui who was sentenced to 10 years in prison just last week. 

So, what’s going on, and how is the Legislature responding to all of this indisputable corruption?

Black: Yeah, so I think it’s a mix of things, and Neal Milner had an interesting article about how not everything is corruption. The things that are in those prosecutions, a lot of that is bribery and corruption [laughter]. 

But I think there are a lot of other issues as well, and professor Milner points that out, that there’s issues of inefficiency, there’s issues of just incompetence. And I think all of those can be addressed, at least in part, and this is where I would differ from professor Milner and his approach to things. I think transparency makes a difference for all of those.

Even with the issues that we see, for example, with HART [Honolulu Authority for Rapid Transportation], a lot of that I would not, at least as far as we’ve seen, I don’t know that that’s corruption, but there’s certainly some issues with inefficiency and incompetence, and there are a lot of issues with HART with respect to transparency and the ability to get access to information from them. 

I know — just to give one example — that the issues now with utility relocation that they’re dealing with, have been a subject of interest for lots of people for years, and HART was just being reluctant to share anything. So transparency makes a difference.

Kent: What you’re saying is, yeah, there’s this question in the public about whether or not it’s incompetence or corruption, but it might be a little of column A and a little of column B, but whatever it is, we need transparency to help get to the bottom of it.

Black: Yes.

Kent: Now, are there any bills that try to seek to stop it, in this year’s Legislature?

Black: Yes. So, one bill that’s really, like, across the board, would be very helpful for transparency generally, is a set of bills, one in the House and one in the Senate, on the cost of public records. 

So, you’ve got SB991 and HB719, that would, for those organizations like media outlets and nonprofits, who are trying to educate the public about issues, it would limit the amount of money that they need to pay in order to get access to that information, which right now, if it’s constantly like, oh, a little bit of money here from this agency, a little bit of money here from that agency, it just adds up to where the organizations are just like, “Well, we can’t even look into this just to verify basic information.”

Kent: Yeah, at Grassroot, I’ve been trying to submit transparency requests for years, and often, we have to pay thousands of dollars just to find information that should be pretty standard and open information that should be on their website, [laughs] we’re now paying thousands of dollars for, and sometimes they’ll quote us tens of thousands or hundreds of thousands of dollars, you know, if we’re requesting a lot of information. 

And of course, we don’t pay that, because, how could we?

Black: That’s right.

Kent: And so, what does that do to transparency when people see those big bills?

Black: Most people, like, they’ll — I’ve seen this happen — where an agency will quote a certain amount, and then the requester will come back and say, “Alright, maybe you misunderstood my request. I’m not asking for everything. The earth, the moon and the stars. I’m really just trying to get this information.” 

And I’ve seen the agency come back and say, “Well, then it’s going to cost this much,” and the number goes up. [laughter] OK, well, that’s not how this is supposed to work. 

So, there should be a dialogue, but it doesn’t always happen, and that’s really the unfortunate part. And cost becomes a complete obstacle to getting access.

Kent: That’s right. And I found that actually trying to talk to government bureaucrats or administrators, like, take them out for coffee or something, or just explain like, “Hey, this is what we’re trying to look for.” 

Because the problem is, from my perspective and the public’s perspective, we don’t always know exactly what documents the government actually has in the first place. So how are we even supposed to ask for a certain document if we don’t know it exists? 

And so then, our transparency requests are sometimes, you know, broad, but then they respond by tacking on a big bill rather than talking.

Black: Yes, and Gov. [David] Ige, he issued an executive order that was supposed to help with some of that, and unfortunately, I don’t think that it’s really done a whole lot. Especially that “black box” aspect of it, where people just don’t know, and so they want to have that dialogue, they want to be able to focus their requests, but they just don’t know what exists and they don’t know how to ask the question. 

I think it looks, so far, that Gov. [Josh] Green is very interested in making state agencies more open than they have been in the past.

Kent: Yeah, and let’s talk about that. You wrote a letter to Josh Green, and talking about the need for transparency, and calling for greater transparency, and we signed on to it as Grassroot Institute, as did many other government watchdogs and nonprofits. And I know the letter discussed things like public records fees, and the Office of Information Practices, which we can talk about. But did it call for anything else, and how did the governor respond?

Black: So, it called for three general things.

One is to have more of just a blanket mentality of a presumption of access. That is something that the federal law, for example, has in its statutes, but that should be the presumption overall, and in general, it should be.

But at the same time, the mentality of many agencies is, “Well, we’ll hide it and see if anybody challenges it.” That’s not every agency, but that is some. And so that was one thing: the presumption of openness.

Kent: Why is the presumption of openness important, would you say?

Black: Because if you don’t have that, many people will just give up when an agency says no. So, when you look at a lot of other jurisdictions, other states, when they take on the attitude that, “These are the public’s records, and we’re only going to withhold things if it really is going to harm some interest,,” then you see a lot more transparency.

But that hasn’t been the mentality and the attitude of state agencies for the last several decades here in Hawaii, and so, just trying to change that attitude is really important.

Kent: And those other things in the letter, continue.

Black: So the other thing was the cost of public records, which is part of the legislation that I mentioned, and is my understanding that Gov. Green supports that legislation, supports having less expensive access to public records, particularly when it’s going to serve the public interest, and provide access to those who are trying to educate the public. 

And then the third thing was just trying to put OIP, the Office of Information Practices, back on the right path.

Kent: And we’ll talk about that a little later. But first, I want to talk about the Commission to Improve Standards of Conduct. Just before the legislative session, retired Judge Dan Foley chaired that commission, which the Legislature formed in response to all the corruption that was going on. 

And the Commission put together all sorts of recommendations. One of them was: Reduce the power of money in politics. Another was: Serve the public interest with ethical awareness and oversight. But I’m thinking the one you might be most interested in was: Give openness and transparency a boost.

In particular, the report seems to endorse a legislative proposal that would put a cap on charges for the reproduction of certain government records so as not to ice out the public because of unreasonable fees, like we were talking about. 

So, could you talk about, I guess, the Commission’s report, and as it relates to maybe some of these bills, and how they might gain some more traction?

Black: Yeah. So, we worked hard with the Commission to try and address, because that commission was made up of folks that were in government currently, as well as former government individuals, and good-government groups — so, League of Women Voters, Common Cause. 

And there were folks on that committee that were concerned about, like, for example, the cost of public records bill, and they needed to come to a better understanding. And so, the Law Center worked with them pretty extensively to try and explain what the scope of the bill was, and how it was limited in nature, and really focused on the most important set of records.

It’s not as though, for example, you’re going to see a bunch of data brokers come in and get free records that they can then resell to others. That’s not the intent of these bills and the Foley Commission. 

So, there was a lot of work that went into those recommendations, and now it’s a matter of having those same conversations again with legislators as they come to understand what the Foley Commission was doing, and the work that it did.

Kent: Well, we’re going to pause right here. Don’t go away. We’re going to be right back after this break. We’re talking with Brian Black of the Civil Beat Law Center. See you in a little bit.

[Intermission]

Kent: Welcome back to “Hawaii Together” on the ThinkTech Hawaii broadcasting network. I’m Joe Kent, filling in for Keli’i Akina, and we’re talking with Brian Black of the Civil Beat Law Center for the Public Interest.

 I wanted to ask you, Brian, about two bills at the Legislature this year that would help open up transparency a little more: SB991 and HB719. Now, Grassroot Institute, we’ve testified on these bills, and I believe you testified on them as well. Could you speak to the details of the bills and why they’re needed?

Black: Yeah, sure. So, these are the bills that I was referring to, with respect to cost of public records. They do lots of different things. 

The most important, I would say, is that it provides for a waiver when a request is made in the public interest, so that if someone is trying to —  such as a media outlet or a nonprofit organization — is trying to educate the public about government information, then they’re not going to be required to pay the fees that exist for searching, reviewing and redacting those records.

So, when someone is going to put in their own effort and time, and synthesize and really do a lot of work to make that information accessible to the public, then they’re not going to get charged. 

It also makes some pretty common-sense changes, with respect to duplication fees, in terms of the existing law says that you can charge 5 cents or more. It doesn’t have a cap on how much you could charge per page for duplication. So, there’s a wide range in agencies as to how much they charge. This puts a cap of 25 cents per page. 

It also says that agencies are not allowed to charge per-page fees for electronic records, which, of course, doesn’t make any sense if you have an Excel spreadsheet that’s hundreds and hundreds of pages that are printed out. 

Kent: Yes, we’ve had that, too, before, by the way. We get all these bills for as if they printed out pages, but they didn’t even print out a single page.

Black: Yeah. When they’re just hitting forward on an email, that’s not supposed to be charged copying costs. So this makes that clear. 

So those are the big ones, as far as the scope and purpose of those two bills.

Kent: I see. Now, I’ve heard some government agencies may not like these bills, and they might have testified in opposition. Which ones are they, and what are they saying, and do those criticisms hold water?

Black: No, not really. [laughs] I mean, there’s certainly some that don’t seem to understand the language that’s in the bills, and so perhaps there could be some clarifying language, maybe. 

You see, for example, Department of Land and Natural Resources, and Department of Human Services, they’re complaining about, you know, like maybe, or, and even the Employees’ Retirement System, saying that everything is going to be public. 

But as I mentioned earlier, data brokers are not going to be able to come in. That seems to be part of ERS’ concern, for example: data brokers. They don’t qualify for the exemption, and that’s pretty clear under the language.

Others are concerned that everybody is going to come in and claim that everything is in the public interest. But again, there are factors and standards. This is actually adopting a federal standard, and about 45 years of precedent and guidance under that standard. So it’s not as though nobody knows how it’s supposed to work. It’s just a matter of applying it.

Kent: That’s interesting. You know, I never thought of that, but it’s true. Sometimes I’ve submitted FOIA [Freedom of Information Act] requests at the federal level, and they get back to me with much more transparency than I see here at the state level. [laughs] So, that’s funny that we can actually learn from the feds.

Black: Yeah. So their system for fees and waivers is different, but this bill would adopt a very specific aspect of it and would definitely lead to more transparency.

Kent: And what are the chances for those bills going forward, do you think?

Black: Well, those bills, the similar concept passed last session [laughs] unanimously. So [laughs] I would be hopeful that it would pass again, and I think that the Legislature is interested in that. 

The problem was that Gov. Ige vetoed it, and so the concern, I believe, that many legislators have is just making sure that Gov. Green is comfortable with the language. So that’s the challenge right now.

Kent: There’s another bill that you’ve testified against that relates to testimony itself, and I believe the bill changes how people are allowed to testify at various governments’ boards and hearings. Could you please explain that bill and why you’re opposed?

Black: I don’t know which one it is. 

Kent: [laughs]

Black: There were several sunshine-related bills that have now died, but then we have the perennial ones where the county councils are trying to exempt themselves from having open meetings when they’re going to informational briefings. 

There’s also one that was introduced to repeal a provision that was adopted last year, that required that people be allowed to testify either at the beginning of a meeting or at the beginning of an agenda item, and, you know, the purpose of that is very clear.

I mean, many boards would like to have everyone testify all at the beginning, but if you’re five minutes late to a meeting, you shouldn’t be shut out from being able to testify. 

And so, part of the rationale last year was, “OK, well, if you’re not taking it up until, in some cases, especially with, say, council meetings, they might run all day. If you’re not going to be taking it up till the afternoon, why would you shut people out just because they weren’t there in the morning?” 

So all those bills, as far as I’m aware, are all dead and we don’t have to be concerned about a loss of transparency there.

Kent: I see. I want to talk a moment about the Office of Information Practices, that we’ve mentioned before. Can you tell viewers what this agency does and why it matters?

Black: Yeah. So, the Office of Information Practices was created in 1988 when the Legislature adopted our current public records law, and it was created to provide for [an] alternative to filing a lawsuit. So, if you wanted to have inexpensive, less formal and expeditious — was the idea — forum for resolving public records disputes, then that was what OIP was created for.

The problem is that it has not been that, especially in the last, like, decade or so, and as we see, and we have seen a trend of declining disputes being appealed to OIP, and I think more people are filing lawsuits. At the same time, we’re seeing an increasing trend in OIP’s backlog, which is not what we should be seeing, but that is what’s happening.

Kent: I see. And what’s the main thing wrong with OIP, would you say? Is it the backlog? Is it funding? Is it the structure of the system itself? I mean, OIP sounds like a good idea.

Black: Yeah, it was a great idea. I think there’s a lot of issues with it. I think there’s … the way that it’s being managed and administered is very problematic. There’s a focus on government agencies. That’s what leads away from this primary purpose of resolving disputes and focusing on other things that take away from that priority, such that it increases the backlog. 

The Office has also been introducing, in recent years, a lot of legislation that would reduce transparency, which seems completely contrary to an agency that is … its whole purpose is to administer a law that’s supposed to promote public disclosure. 

Kent: And why would they advocate for that? What is the rationale there?

Black: That is not something that I can really answer.

Kent: OK. [laughs] 

Black: The best I can say is that they think that government agencies would benefit from having the ability to withhold more information.

Kent: I see, I see. There’s something about having an agency — a state agency — that’s meant to secure transparency weigh in on transparency because if it has such huge backlogs, it could help get rid of those backlogs by reducing transparency, in a sense. 

So — and I’ve used OIP in the past for transparency, and it’s been helpfu. But I understand it’s kind of a paper tiger sometimes.

Black: Yeah. There are some things that they help with and that they can give assistance quickly, but if you’re actually asking them to resolve a dispute, the current backlog is three years, and I’ve definitely filed lawsuits and gotten resolution in less time than that.

Kent: Hmm. Are there any other bills that you’re following closely this year?

Black: A couple bills that are very specific. For example, related to reporting of deaths in prisons. You know, that’s an issue that we’ve litigated in the past, and if we had legislation, that would definitely streamline things and make it easier for the public to just be aware of what’s happening in our prison system.

Kent: And what about transparency during an emergency? Oh, I just remember during the COVID days, the first thing that was done was the transparency laws were pulled quickly. And so, but, it seems to me that in an emergency, we need transparency more than ever. So, what’s your comment on that?

Black: Yes. There are two bills that are moving, and they’re great. They would make sure that a future governor or mayor couldn’t do what Gov. Ige did — and he was the only governor in the entire country that did it  in response to the pandemic of suspending the public records law. So, those bills are definitely moving, and hopefully, will pass.

Kent: Well, that’s great, and it’s great that you’re fighting to keep transparency open in Hawaii, as we are, and thanks so much for “E hana kākou” — working together with us — and we want everyone to do that as well. We need more voices on this. So, thank you so much, Brian, for joining us today.

Black: Thanks, Joe. Thanks for having me.

Kent: And thank you to the viewers who are watching. This is “Hawaii Together.” I’m Joe Kent, signing off. Aloha.