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'Wildly irresponsible betrayal' Kishimoto Freaks Out Over UIPA Request
By News Release @ 1:25 PM :: 2429 Views :: Education K-12, Ethics

The following exchange of letters has been released to the press by the Education Institute of Hawaii (EIH):

PDF: Originals

From Dr. Christina M. Kishimoto, Superintendent

Dear Mr. Terstegge:    May 7, 2019

I am very disappointed to hear that you have launched a petition to try to acquire financial data from the Hawaii Department of Education ("HIDOE"). We have been working with you and the Education Institute of Hawaii ("EIH") in good faith and have provided you numerous data files with budget, revenue, expenditure, audit, weighted student formula and fiscal data to address your requests. As we have stated before, we cannot provide the confidential types of data you are requesting, such as individual salaries, medical payments, and other personally identifiable information.

I have received reports that you have also contacted my Assistant Superintendents and other staff demanding this data, stating that if you did not receive it immediately, that you would launch a public petition and announce your perceived grievances to the media. This is not a constructive means to reach your goals.

The data you requested will be included in a future financial management system to meet the requirements of the Every Student Succeeds Act in 2020. HIDOE has already posted a Request for Information for this project and a link to details was provided to you. Rather than work through established procurement procedures, you instead proposed that if HIDOE provides you the data immediately, that EIH can complete this system at no cost.

HIDOE is committed to transparency and to providing information to our school communities and stakeholders in an easily understood format, but it cannot provide a third-party organization with confidential financial data based on the simple premise of getting a free product. To do so would be a wildly irresponsible betrayal of our basic duties to Hawaii's taxpayers and to our employees by circumventing state procurement laws and procedures.

If EIH wishes to develop a financial management system in cooperation with HIDOE, it must bid on the project like other interested parties and comply with the project requirements, timetables, liabilities and deliverables.  EIH cannot force its way ahead of the line by demanding data through threats of petitions and confrontation. If you intend to be a true partner of education worthy of your stated goals, we hope you will re-examine your current path and work with us in good faith.

Sincerely,

Dr. Christina M. Kishimoto

Superintendent

  *   *   *   *   * 

From Stephen Terstegge, Executive Director, Education Institute of Hawaii

Dear Dr. Kishimoto,    May 17, 2019

Thank you for your May 7, 2019 letter. As I told you in person about two weeks ago, I appreciate your vision and leadership and feel that you are changing Hawaii public schools for the better.  As a parent, I am truly grateful. You may recall that we first collaborated when I was a member of the Governor’s ESSA team member over two years ago by synchronizing HIDOE’s strategic plan with the Hawaii Blueprint for Public Education. Indeed, the central mission of the Education Institute of Hawaii (EIH) is anchored in school-level empowerment that the Blueprint champions.

EIH also believes that a prerequisite for empowerment is a climate of transparency and trust that allows all to participate equally in civil discourse over matters of public education. We have been proud to sponsor a number of events that have benefitted HIDOE leaders, such as our 2018 School Empowerment Conference and many other efforts during your tenure. EIH has been a staunch supporter of your three pillars of School Design, Teacher Collaboration and Student Voice and will support the Power and Promise of Public Education 2030 campaign in any way we can going forward.

With this in mind, I ask your understanding of our aim and rationale with regards to our fiscal transparency data requests. Our aim is to simply to obtain public data to create a tool for public purposes, and not to undermine the HIDOE in any way. The Excel-based tool, once populated, contains data that can be analyzed in numerous ways for numerous purposes. Any stakeholder group, to include the HIDOE, could use the data to create reports, analyses or studies that have a high degree of efficacy due to the verifiable origin of the source data. This is something not currently available to the public.

More narrowly, I will address your concerns in the order you have presented them:

I am very disappointed to hear that you have launched a petition to try to acquire financial data from the Hawaii Department of Education. We have been working with you and the Education Institute of Hawaii in good faith and have provided you numerous data files with budget, revenue, expenditure, audit, weighted student formula and fiscal data to address your requests. As we have stated before, we cannot provide the confidential types of data you are requesting, such as individual salaries. medical payments and other personally identifiable information.

Response 1: The fiscal transparency tool cannot be created without the proper source data. In accordance with national standards of practice for education data analysis, the crux of this information is general ledger data, an area where we currently have only a portion of what is required. Moreover, we are not requesting the confidential personnel data you are listing. Please see the attached 92F, labeled “Item 4” dated March 6, 2018 specifying that confidential personnel information was to be excluded and not given to EIH.

I have received reports that you have also contacted my Assistant Superintendents and other staff demanding this data, stating that if you did not receive it immediately that you would launch a public petition and announce your perceived grievances to the media. This is not a constructive means to reach your goals.

Response 2: This is an unfair mischaracterization of my actions and EIH’s intentions. I have periodically checked in with your office to check the status of the 92F requests, which in all fairness are over a year old and deserve either an answer or an official dismissal. With no progress, the EIH Board of Directors decided to launch a petition, and my conversation with your Assistant Superintendent was because your office did not return my calls. My purpose was only to advise you of the petition in full transparency and courtesy so you would not be caught off guard. I was told not to launch a petition until I heard back from HIDOE leadership on May 3, and not hearing back, we launched the petition on May 7. What caught me off guard, however, is that I was informed that all Complex Area Superintendents and principals were furnished a copy of your memo to me. Many of these leaders are individuals with whom I have built trust and strong relationships with over the past nine years. Putting your subordinates in the middle of your disagreement serves no logical end, if only to discredit EIH and me.

The data you requested will be included in a future financial management system to meet the requirements of the Every Student Succeeds Act in 2020. HIDOE has already posted a Request for Information for this project and a link to details was provided to you. Rather than work through established procurement procedures, you instead proposed that if HIDOE provides you the data immediately, that EIH can complete this system at no cost.

Response 3: We do not want to develop a financial management system in cooperation with the HIDOE. ESSA compliance with the federal government is the purview of HIDOE and will remain so. As a 501(c)(3) non-profit, EIH is not selling a service or product, but serves a distinct purpose centered on school level empowerment. This data was requested well before the ESSA financial data requirements were defined. Indeed, the data may be able to be used for compliance, but much more can be derived from a transparent baseline of public source data such as allowing stakeholders to address issues of equity, conducting an adequacy study, or to help write evidence-based legislation. Specifically, there are four distinct ways that ESSA financial reporting requirements and our model differ—they are not equivalents:

  • ESSA does not require inclusion of 100% of revenues and expenditures whereas our model process does.
  • ESSA’s requirement is for a “regulatory report” not for a decision-support tool which is the purpose of our model.
  • ESSA does nothing to shift who is allowed to be the analyst from HIDOE central office to school principals and the public, whereas that is what our model does.
  • ESSA does not require integration of per pupil spending data with contextual data such as: student performance data, economic metrics, demographic student enrollment (special ed counts, students living in poverty counts, Title I, etc.); whereas our model does.

HIDOE is committed to transparency and to providing information to our school communities and stakeholders in an easily understood format. But it cannot provide a third party organization with confidential financial data based on the simple premise of getting a free product. To do so would be a wildly irresponsible betrayal of our basic duties to Hawaii's taxpayers and to our employees by circumventing state procurement laws and procedures.

Response 4: Our partner, EduAnalytics, has gotten the same information we are requesting from HIDOE in 30 other states and the District of Columbia, usually within about six weeks. These requirements are not unique to Hawaii. In fact, the public is vested with the right under UIPA to open access to all government records not otherwise restricted or closed by law and states that “the people are vested with the ultimate decision-making power,” that “[g]overnment agencies exist to aid the people in the formation and conduct of public policy,” and “[o]pening up the government processes to public scrutiny and participation is the only viable and reasonable method of protecting the public’s interest.” UIPA, HRS §92F-2.

If EIH wishes to develop a financial management system in cooperation with HIDOE, it must bid on the project like other interested parties and comply with the project requirements, timetables, liabilities and deliverables. EIH cannot force its way ahead of the line by demanding data through threats of petitions and confrontation. If you intend to be a true partner of education worthy of your stated goals, we hope you will re-examine your current path and work with us in good faith.

Response 5: Again, EIH is not a vendor but a non-profit organization. Instead, we want a public agency, funded by public dollars, to comply with Hawaii's regulations surrounding 92F. My interactions with your staff over the past few months has been professional, collegial and very often enjoyable.

EIH wishes to partner with you going forward in ensuring that the Power and Promise of Public Education 2030 plan comes to fruition. It is for the benefit of all involved to do so. In the spirit of good faith, ensuring mutual understanding, and aligning efforts I request a meeting at your earliest convenience.

Sincerely,

Stephen Terstegge
Education Institute of Hawaii
Executive Director

  *   *   *   *   *

From Jeffrey S. Portnoy, John P. Duchemin For CADES SCHUTTE a Limited Law Partnership

Dear Dr. Kishimoto:    May 23, 2019

Cades Schutte has been retained by the Education Institute of Hawaii ("EIH") to represent it in obtaining information from the Department of Education ("DOE") to which EIH is entitled under the Uniform Information Practices Act ("UIPA"), Haw. Rev. Stat. Chapter 92F, and which the DOE has improperly withheld.

As you are aware, EIH is a non-profit organization whose mission is to improve the quality of public education in Hawaii, and to serve as a think tank to promote empowerment and innovation in schools. In line with its mission, EIH has requested that the DOE provide it with, among other things, detailed financial data that is within the possession and control of the DOE and that would assist EIH in preparing a detailed study of the Hawaii public education system and allow all education stakeholders access to the same data for the purposes of cost-benefit analyses, equity studies, or adequacy studies as meets their respective purposes. The information EIH requests from the DOE has routinely been obtained from many other state governmental education departments in the course of similar projects by EIH or other entities to assist state governments in streamlining efficiencies in those states' education departments. EIH therefore has approached the DOE as a member of the general public seeking that same financial data for Hawaii. Indeed, in pursuit of its and the public's statutory rights under UIPA to open access to governmental records, EIH provided the DOE with a detailed written notice on March 6, 2018-more than one year ago--containing twelve separate requests.

Unfortunately, the DOE has only partially satisfied EIH's request for information, and has outright refused to provide the most important financial data: Tens of thousands of general ledger entries that are critical to EIH's plan to analyze the gathered data and share its analysis, and the tool that produced the analysis, with anyone who wants it, including the DOE. Even though EIH repeatedly has explained to the DOE the nature of its project and the importance of the missing information to that project, the DOE continues to refuse to provide the requested information, even though that information is readily available to the DOE.

The public is vested with the right under UIPA to open access to all government records not otherwise restricted or closed by law. As the Hawai'i Supreme Court has recognized, UIPA imposes on all state government agencies the "affirmative responsibility" to make all such government records available "upon request by any person."  Nowhere does the law allow an agency to refuse access to government records because the agency, or its superintendent, disagrees with the requestor on policy issues, and nowhere does the law allow the agency to question the reason for an information request. Indeed, UIPA itself states that "the people are vested with the ultimate decision-making power," that "[g]ovemment agencies exist to aid the people in the formation and conduct of public policy," and "[o]pening up the government processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest." UIPA, HRS § 92F-2 (emphasis added). Therefore, the legislature declared, " it is the policy of this State that the formation and conduct of public policy--the discussions, deliberations, decisions, and action of government agencies--shall be conducted as openly as possible." ld. (emphasis added). Although the law provides certain enumerated--and narrow--exceptions, all other information must be produced when requested, and failing to do so would not only be arbitrary and capricious, but would expose the DOE to a lawsuit to comply with its UJPA obligations, and to pay the requestor's attorney's fees if the DOE is compelled to produce documents it has wrongfully withheld.

The DOE's response to EIH's request for financial data violates all of those principles. The DOE not only has outright refused to provide the requested information, but also has upbraided EIH for having the temerity to complain about that refusal. Your May 7, 2019, letter to Stephen Terstegge, EIH's executive director, states that you are "very disappointed" that EIH has "launched a petition to try to acquire financial data" from the DOE. You state that EIH's public campaign for access, and discussions with the media, "is not a constructive means to reach your goals." You also state that EIH must go through government procurement procedures--that is, obtain a DOE contract--before receiving the requested financial data, and "cannot force its way ahead of the line by demanding data through threats of petitions and confrontation." You conclude by stating that EIH "should re-examine [its] current path and work with us in good faith." These charged words indicate that the DOE plans to permanently withhold from EIH any access to public government records--simply because EIH spoke publicly about the DOE's refusal to provide access to those records--unless EIH keeps quiet about its legitimate grievances.

Your letter to EIH is shockingly inappropriate. A high-level government official should not use her position of power to chill public inquiries, or suggest that a free public discussion about access to government records is somehow in "bad faith." We also note that you copied your letter to all of the DOE's complex area superintendents, principals, and teachers—effectively serving as a "gag order" that implicitly intimidates DOE officials from speaking with or cooperating with EIH.

Moreover, refusing to tum over public records based on who is asking, or why they are asking, is a clear-cut UIPA violation. Under UIPA, any person has access to all public records, and the DOE cannot pick and choose who gets those records, and who does not, based on who the DOE likes or does not like. Furthermore, suggesting that a non-profit organization must obtain a DOE contract to obtain financial data is completely false. If the financial data that EIH requested exists--and there is no question that it does--the DOE must tum it over to anyone who asks.

Finally, your letter claims that EIH requests " individual salaries, medical payments, and other personally identifiable information" and thus the DOE "cannot provide the confidential types of data you are requesting." Again, this is false. EIH was careful in its written UIPA request to exclude personally identifiable, confidential information from the categories of data it requested.

And the most important set of information requested--the financial data from the DOE general ledger--consists of line items that contain no such confidential information. The DOE cannot use "confidentiality" as an excuse to refuse to provide the requested data.

On behalf of EIH, we are prepared to litigate this matter to the full extent necessary to obtain the financial data and other DOE documents and records to which EIH is legally entitled. We believe important principles of open government and free speech are at stake. We therefore demand that the DOE immediately take all necessary steps to provide EIH with the data it requests. If the DOE does not respond to this letter by May 31, 2019, with an agreement to immediately provide the information EIH has requested, we will take appropriate legal action and will seek recovery of all attorney's fees and costs expended in prosecuting that action.

Very Truly Yours,

Jeffrey S. Portnoy

John P. Duchemin

For CADES SCHUTTE a Limited Law Partnership

PDF: Letter to Kishimoto

May, 2019: Petition: Support DOE Budget Transparency to Improve Public Education in Hawaii

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