Corruption or incompetence, transparency still the antidote

by Keli'i Akina, Ph.D., Grassroot Institute, February 18, 2023

Authorities on good government will point out that corruption isn’t the only explanation for our frustration with local and state governance. Sometimes, the problems we see can be chalked up to inefficiency or incompetence.

But no matter what the issue, the antidote is the same: transparency.

That was the point emphasized on Tuesday by Brian Black, executive director of the Civil Beat Law Center for the Public Interest, who is one of Hawaii’s foremost experts on government transparency.

Speaking with my colleague Joe Kent, executive vice president of the Grassroot Institute of Hawaii, on the “Hawaii Together” program on ThinkTech Hawaii, Black said the focus of the Civil Beat Law Center is “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 sealing in the courtrooms.”

Those are all goals dear to the heart of the Grassroot Institute, where our mission is to promote not only individual liberty and economic freedom but also accountable government.

In order to combat government corruption, waste, mismanagement and inefficiency, the Grassroot Institute champions reforms that will improve transparency in our state. And fortunately, there are several bills moving through the Legislature that would do exactly that.

Among them, as Black noted, HB719 and SB991 would cap fees for open-records requests and waive fees for requests made in the public interest. The intent of these two bills is to combat the use of excessive fees as a tool to discourage requests for records..

This is a problem the Grassroot Institute has experienced firsthand. On one occasion, the Institute was given a six-figure estimate for records related to the governor’’s decision-making during the COVID-19 lockdowns, which put a damper on our research, obviously.

Black said a fee cap for public records would lead to greater government transparency, with little risk that the public interest waiver in particular would be abused.

“This is actually adopting a federal standard, and about 45 years of precedent and guidance under that standard,” he said. “So it’s not as though nobody knows how it’s supposed to work. It’s just a matter of applying it.”

Black said another significant bill this year would prevent the governor or any of Hawaii’s mayors from suspending requests for vital statistics or government records during an emergency — as former Gov. David Ige did during the earliest days of the COVID-19 crisis.

Hawaii, in fact, was the only state in the country to completely shut down its transparency laws during that dark period, and the intent of SB767 is to prevent that from happening again.

Unfortunately, there are also bills in the 2023 Legislature that would hamstring open government. For example, SB720 would allow agencies to withhold from public disclosure any “pre-decisional” and “deliberative process” documents  — basically any records that reflect the deliberations of an agency prior to its making a final decision on a government action. The Grassroot Institute has testified that such an exception would frustrate the intent of the law.

Black agrees that what we really need in Hawaii is “a blanket mentality of a presumption of access.”

That was the basis of a letter he sent to our newest governor, Josh Green, in early January, which was signed by more than two dozen community watchdog and media groups, including the Grassroot Institute of Hawaii. The letter urged Hawaii’s Gov. Green to adopt reforms aimed at improving transparency in our state, and the governor responded positively.

Early indications are that the governor will sign the bill that would cap fees, if it reaches his desk. In addition, the governor has expressed openness to other reforms. That’s why we need to continue making the case for improving the state’s open records and sunshine laws.

As Black explained, “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.”

If we’re going to make Hawaii more open, it’s clear that we will need to work together to improve the culture of transparency and openness.

E hana kākou! (Let’s work together!)