Democracy in peril: Upholding government transparency during a crisis

From Grassroot Institute of Hawaii, Apr 22, 2020

In response to the coronavirus pandemic, Hawaii Gov. David Ige used his emergency powers in March to declare a statewide lockdown of Hawaii’s economy and social fabric.

He also suspended the state’s generally excellent open-meetings and open-records laws, leaving Hawaii citizens in the dark about the proceedings of their government.

Was it really necessary to suspend those laws to help fight the coronavirus? What can be done to restore government transparency and accountability in Hawaii?

Sandy Ma, executive director of Common Cause Hawaii, and Brian Black, executive director of the Civil Beat Law Center for the Public Interest, joined us for a free live webinar on Tuesday, April 21, to address these and other questions.

Common Cause Hawaii is dedicated to strengthening public participation in government; curbing the influence of money in politics; ensuring that government serves the common good, rather than special interests; and promoting fair, honest and modern elections.

The Civil Beat Law Center is committed to promoting transparency and responsiveness in government, believing that secrecy fuels distrust of public officials.  

Moderator for the webinar was Keli‘i Akina, Ph.D., president and CEO of the Grassroot Institute of Hawaii, which is dedicated to promoting individual liberty, economic freedom and transparent, accountable government.

A full transcript of the event is below.

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Keli’i Akina: Aloha, everyone, and welcome to the Grassroot Institute of Hawaii. I’m Keli’i Akina, president and CEO of the institute. I want to thank you so much for taking time out of your schedule to join us today. Our topic is “Democracy in Peril: Upholding Government Transparency During a Time of Crisis.” We’ve got some outstanding guests joining us today on the panel, Brian Black and Sandy Ma, and I’ll be introducing them in just a moment.

At the Grassroot Institute, we’re committed to the preservation of individual liberty, economic freedom, and limited and accountable government. That’s why we’re delighted to work with other organizations toward these ends. First, let me say this: We want your participation today and we thank you for being with us. There are over 180 of us registered for this webinar right now, and it’s also being live-streamed on Facebook.

You’ll be able to send it around later on because we’ll post on our website a copy of everything that has taken place today. In the meantime, would you get ready for your questions? At any point, you can jot them down online, and Joe Kent, later on, will moderate and field your questions to our panelists. Let me get started. Hawaii’s Governor, David Ige, used his emergency powers in March to declare a statewide lockdown of Hawaii’s economy and social fabric.

This was in response to the coronavirus crisis. He also suspended the state’s generally excellent open meetings and open records laws leaving Hawaii’s citizens in the dark about the proceedings of government. Now, this raises many questions, and perhaps you’ve asked them. Was it really necessary to suspend the state’s Sunshine Law concerning open meetings and the uniform information practice act concerning open records all in the name of fighting the coronavirus?

What can be done now at this point to restore government transparency and accountability here in Hawaii? To discuss these questions, I’ve invited today Brian Black and Sandy Ma to join me. Let me introduce them to you now. Brian Black is the executive director of The Civil Beat Law Center for the Public Interest. The center is committed to promoting transparency and responsiveness in government believing that secrecy fuels distrust to public officials.

Brian is a graduate of Harvard University and Cornell Law School. He clerked for the federal district court in Connecticut, he completed a fellowship at New York University, and he was in practice at the law firm of Hogan Lovells in New York City. When he returned to Hawaii, Brian left private practice to join the City and County (of Honolulu) before taking his current position with the Civil Beat Law Center.

Sandy Ma is the executive director of Common Cause Hawaii. Common Cause is dedicated to strengthening public participation in government, curbing the influence of money and politics, ensuring that government serves in common good rather than special interests, and promoting fair, honest, and modern elections. Sandy previously was an ACLU attorney in North Carolina and Hawaii. She was a private practice attorney for a number of years.

She most recently worked with the Hawaii Office of Planning and Coastal Zone Management Program, focusing on climate change, sea-level rise and coastal hazard issues. Sandy has a B.A. from Johns Hopkins University, a J.D. from University of Maryland School of Law, and an LL.M. in environmental law from Vermont Law School.

In just a moment, we’ll dive into our topic, but first, let me say hello. Brian, thank you for joining us today. Hello to you. Sandy, hello to you. Thank you for joining us. We’re looking forward to hearing what you have to say.

Brian Black: Thanks for having me, Keli’i.

Sandy Ma: Thank you.

Keli’i: Thank you. We have been talking about the recent suspension of government transparency here in Hawaii to fight the coronavirus. Our panelists will discuss three questions. Number one, what’s gone wrong in terms of transparency? Number two, how do we fix it? Number three, why does it matter? To open us up in terms of talking about what went wrong, I invite Brian Black to join us now for the next eight minutes. Brian, I’ll hand it over to you.

Brian: Thanks, Keli’i. In terms of just really quickly terminology, because I may throw around different terms that are synonymous, first, when we’re talking about public records law, we’re talking about the Uniform Information Practices Act. I may use the term UIPA which is the acronym sounded out. When we’re talking about open meetings, government meetings like the Board of Land and Natural Resources having to do things in public, I may use the term Sunshine Law, which is the short form for that particular law.

On March 16th, as Keli’i mentioned, Governor Ige issued a supplemental proclamation that suspended those laws. Now, there could have been some debate as to what exactly the proclamation did and the extent to which it suspended those laws. In the end, the following week on March 23rd, the Office of Information Practices, which is the office that interprets both UIPA and the Sunshine Law, issued guidance.

In that guidance, they made it very clear that those laws essentially don’t apply, period, across the board during this period of emergency. They had interpreted the governor’s proclamation to be as such that requirements for notice of meetings when you talk about open meetings, requirements for public testimony, those simply don’t apply. Any indication that agency is needed to respond to or consider public records requests don’t apply during this period.

At that point, the Law Center started to look at what other states were doing. What we found was, of course, in the COVID scenario that we’re in right now, most states were doing something, because the idea of open meetings or public records is a little different, but the idea of open meetings during a period when you’re supposed to have social distancing and stay-at-home orders and things like that, it doesn’t make sense in the same way.

How do you accomplish that? One thing to keep in mind is that each state is its own beast when it comes to public records and open meetings. They all do things a little bit differently. There are some similarities, but they’re all different, but most of the states were doing things a little bit differently both as it concerned public records and open meetings.

No state, however, had done something as extreme as what OIP interpreted the supplemental proclamation to be.

You weren’t seeing any states that were just saying there’s no such thing as the public records law, there’s no such thing as an open meetings law during this period and leaving it to a wild west of whatever it is that the boards and the agency has decided that they were going to do. Assuming that OIP had correctly interpreted it, and at this point, it didn’t really matter because the agencies, regardless of whatever the proclamation may say because OIP is the board or the agency that is charged with interpreting these laws, the government was looking to OIP for how to interpret them, so they were going to rely on whatever it is that OIP said anyway regardless of how you might look at the proclamation.

Assuming that OIP interpreted the proclamation correctly, the Law Center sent Governor Ige a letter on March 26th that pointed out the issues with respect to how other jurisdictions were interpreting the emergency scenario that we were in and calling for there to be some reinstatement of some kind. A few days later, Common Cause had organized a coalition of organizations to send a similar letter, although much nicer, [chuckles] they’re saying this letter was much nicer, that called for the governor to fix this scenario.

Meanwhile, what we’re seeing is that there’s a broad range of the way that boards and agencies are responding to the situation. There are some who are making the effort to continue to have public access, and there are others who are not. Right now, there are discussions that are ongoing with the AG’s office regarding how to put forward minimum procedures so that we have something that is open access principles during this emergency period.

That’s the broad overview of what went wrong and, hopefully, some directions that we’re headed in.

Joe Kent: Okay. Well, it looks like Keli’i might be having some trouble with his microphone or video. I would ask him if he’s having trouble, but I can’t see him, so I’ll bet you he’ll come. There he is. There he is. Keli’i, if you’re talking, we can’t hear you.

Keli’i: Good. Are we on?

Joe: Yes. Go ahead.

Keli’i: Very good. Brian, thanks for that presentation, and we look forward to asking you some questions later on, but I got one for you just now. You said that the position that Hawaii has taken is the most extreme of any in the 50 states in terms of rescinding transparency laws during the coronavirus crisis. What was our government trying to accomplish by doing such, and do you think we are accomplishing that goal?

Brian: There’s two things to distinguish here. One is, was a full suspension and the extreme interpretation exactly what everyone in government intended? [chuckles] I’m not positive about that. I’m not sure that that’s what Governor Ige necessarily intended with his proclamation. To the extent that there was a concern about rolling things back, and

there are concerns in other jurisdictions about rolling things back with respect to public access, a lot of it has to do with the availability of resources when you have government employees who are staying at home, when you have government employees who are responding to the COVID emergency.

When they are focused or idle, either one of those, and you don’t have the same resources that are normally available in terms of being able to answer public records requests or to coordinate meetings in a completely new environment, then how do you– they were looking for some more flexibility. If you want to take a step back and just look at the overall intent of the proclamation, I think it was looking for more flexibility because of the uncertainty. Again, whether or not it was intended to go as far as it had been interpreted is the debatable question.

Keli’i: Well, that’s certainly, Brian, if you don’t mind my saying, a generous interpretation that you’re giving to the actions of the state, and we hope that they are as benign as that. Nonetheless, it leaves room for the public to be left in the dark, and there are some negative consequences that could occur. Would you agree with that?

Brian: Yes. I think that it’s definitely a situation that is not good, and it sets a bad precedent for any future situations that may be similar to this, that we have stepped off of a cliff and set this idea that this is how we are going to respond when we need flexibility.

That’s why I think there needs to be some sort of measured response to show– as much as possible, if we can show how it should have been and get us to a scenario where we can reset that precedent so that if something like this happens in the future, we know how government should respond to these types of emergencies. Knowing that they may need flexibility, that may be a concern. How does that look if done properly as opposed to this idea that now seems to be the standard which is it’s all fair game, it’s all thrown around?

Keli’i: Well, thank you, Brian. I’m going to go to Sandy now. Sandy, I appreciate the fact that Common Cause, under your leadership, headed up a movement to coalesce several organizations to write a letter to the governor. We were glad that Grassroot Institute was able to participate in that with you. In that letter, you addressed some of the concerns Brian raises, particularly the resource issue. For example, how in the world can we accomplish transparency when people can’t meet in person? Do we have the technology and can technology be used? I’ll hand over to you now as you answer the question, what can be done at this time. Sandy Ma, thank you.

Sandy: Thank you, Grassroot Institute and Keli’i, for having Common Cause Hawaii participate in this webinar. As both you and Brian have discussed, Common Cause Hawaii and a coalition of about 40-plus organizations and individuals sent a letter to Governor and other elected leaders across the state, legislators, mayors, and county council members, letting them know that even though the Sunshine Law and open meetings records was suspended, the laws were suspended by Governor’s emergency proclamation on March 16th, government is still meeting, boards and commissions are still meeting, but we still have the ability to participate in government meetings.

We had put forth, national Common Cause and supported by local Common Cause, a list of best practices for governments to meet, government boards and the agencies. One of them is that we should postpone routine non-priority government action until the state of emergency has passed. For example, the state Campaign Spending Commission had postponed its April meeting until May. When a board continues to meet, they should have notice be published, and it should be published widely on the State Ethics Commission.

The Honolulu Ethics Commission did publish notice of its meeting, and so that’s really good for us to know, and if a board does meet, that it should be having video conferences and audio conferences for people who do not have broadband access or people who do not have computers so that people can participate remotely. Also, when people participate remotely, when the public participates remotely, it should be so that the people could call in, should be able to remotely testify.

There have been meetings in which the people are allowed to submit written testimony in advance. Writing a testimony in advance isn’t sufficient. This is not real public participation in a meeting. This is because as people who are civically engaged know, when board members talk amongst themselves at a public meeting, your testimony changes. That’s why a real-time remote testimony is really necessary.

There have been, I will say, lots of government meetings that have been going on that have not allowed for real-time remote testimony. For example, the Honolulu Salary Commission just met recently. It said that you could submit your testimony, but it did not allow for real-time remote testimony. It also didn’t livestream any of the meetings. You had to go in person, which is crazy in this public health crisis when people are under a stay-at-home, work-from-home order.

We’ve also provided that at the start of a meeting, that people should announce the names of people who are members who are participating in the meeting, and that vote should be conducted by roll call so that people who are monitoring the meetings should know how votes are occurring at the meeting. We’ve also asked that documents that are being used at any public meeting should be posted online so that people can access those materials.

That’s vitally important. For example, there is the Honolulu Zoning Committee meeting coming up on Thursday. Those materials of the Honolulu Zoning Committee are not going to be posted remotely. You have to actually go in person to Honolulu Hale to access those Zoning Committee materials. Even though the Honolulu Zoning Committee will be livestreaming its meeting, it will not be allowing for remote testimony. You have to go in person to testify.

You could submit your testimony in advance, but what good is your testimony submitted in advance if you can’t actually review the materials unless you go in person? It’s a very interesting time and lots can be improved with the remote access in government sunshine meetings that’s occurring. We’ve also asked that if a board enters into executive session, it is announced that no one else is present during executive session or that other people could hear them.

We’ve also asked that the public meetings are recorded and put up online so that people can review the recorded meetings. Those are some of our best practices that we’ve requested that boards and commissions adhere to, and we’ve made that request in our letter to Governor Ige. That is what was included in our letter, and if there are any questions, I’m happy to take them. Thank you.

Keli’i: Thank you very much, Sandy. I appreciate that presentation. We will have the audience give you some questions in a short while, but I wanted to ask you this for now. Your presupposition is that there is sufficient technology and sufficient security with that technology to facilitate public participation in online meetings, but there are some critics who raised some doubt about that. The governor himself, at one point, said that there were problems with the very platform that we happen to be using today, Zoom. What, if you had, any response to this?

Sandy: There’s a lot of different remote technologies available. I mean, the very basic one is a phone call [chuckles]. I participated in a phone meeting with the Honolulu State Ethics Commission at the very end of March, and that worked fine. We all announced ourselves. There are people in Hawaii who do not have broadband access and people who even choose not to have a computer, so we could always use a phone.

For people who complain about Zoom-bombing or who have had their meetings bombed by Zoom, there is Cisco Webex, there is BlueJeans, like Maui County Council and Maui County Council Committee meetings use BlueJeans. There are lots of different platforms to use. I’m sure Brian has some comments too about that.

Keli’i: All right. Well, thank you very much, Sandy. We’ll be back with you in just a moment. To the audience, I want to thank Brian and Sandy for their very excellent presentations on the loss of government transparency during this time of response to the coronavirus crisis. They’ve addressed basically what’s gone wrong here in the state of Hawaii with respect to transparency and what we can do to fix that.

What I’d like to do for a short period is to give you some comments on why it matters. Why is transparency and accountability in government important? The principle of transparency is not a new idea at all. It’s not novel. Philosophically, you can find its roots in the enlightenment as an idea called the consent of the governed. In fact, the whole concept of the social contract implies some level of government transparency.

I like what John Adams said about this. “Liberty cannot be preserved without a general knowledge among people, who have a right and a desire to know.” That is knowledge amongst the people who have a right and a desire to know. In short, transparency which is public access to information and the workings of the government is a safeguard against corruption, backroom deals, questionable accounting, and other ills. It’s a check on fraud, waste, and abuse.

Transparency is also a tool that helps citizens to trust their government which is so very important, and it’s also a tool that helps citizens to know that the government is taking rational actions. For example, what’s the rationale for a property tax hike? I mean, how is the money currently being spent? Is it wasteful? Is it clear that the department that will benefit from the tax hike actually has a need of that funding?

Transparency is what answers these questions and many others that the citizenry has a right and a responsibility to ask. You can’t be an informed voter or citizen without transparency. Why does transparency matter now? Why do we object to the governor’s suspension of sunshine and open records laws during the lockdown? The answer is very basic. If transparency is critical at all times, it doesn’t become less during an emergency.

If anything, it becomes more important, especially during a time in which decisions are made very hastily. We’re seeing decisions that have substantial effects on our civil liberties and our economy. Every day, there are new announcements about regulations that have just cropped up. Access to the process by which these decisions are made is essential to secure public trust and cooperation. Now, I want to explain something.

By raising these objections, it doesn’t mean that we don’t recognize a place for compromise in light of the health and safety issues that have to be addressed by the government. That’s why we’re joining Common Cause in making recommendations to preserve open meetings by using technology or by extending the deadline for records requests.

In closing, I’d like to remind you of something that was said by Supreme Court Justice Louis Brandeis.

In an article he wrote in 1913 in Harper’s Bazaar, a very popular magazine at that time, Justice Brandeis summarized the basic philosophy behind transparency with the following words, “Sunlight is said to be the best of disinfectants, and that’s probably the greatest reason to have transparency and openness.” With that, I’d like to invite you all to ask your questions at this time.

Sandy and Brian are standing by, but before that, make sure that you use the tool that’s on your screen right now to submit a question, and we’ll be sure to get to it. Next week, by the way, April 30th at noon, we have another webinar entitled Is Hawaii Taxing Healthcare to Death? Hawaii’s struggling healthcare industry is being taxed, and a group of doctors believes it’s dying because of this. They will discuss that.

Our event will feature local medical doctors Scott Grosskreutz, Elizabeth Ignacio, and Ed Gutteling. Along with them, we’ll have economist and Grassroot scholar, John Dunham, PhD, who authored our Grassroot report entitled How Hawaii’s GDP Adds to Island Healthcare Cost, and you can find that on our website. To sign up for next week’s webinar, join us April 30th at noon, you can do that on our website, Is Hawaii Taxing Healthcare to Death? With that said, Sandy and Brian, we’re ready to give you some questions. I’m going to invite Joe Kent, our executive vice president, to lead us during this time.

Joe: Well, we’re getting a lot of great questions rolling in, and keep them coming. One, from Caroline Kim, asks Common Cause. “One of the things that executive session covers is personnel issues, which is why boards often go into executive session,” so she asked, Why are you advising that the public can hear and listen in on such sessions?”

Sandy: Hi, Carolyn. Thank you for the question. Sorry if I misspoke or there was some confusion. That wasn’t the intent. It’s not that the public should be able to listen in on an executive session. It’s just that prior to entering into executive session, it should be announced that no one else is there listening into an executive session or no one is present in the executive session meetings so that it is truly an executive session and it’s not an opportunity to talk about things that should not be discussed in an executive session.

Joe: Dwayne Lopez asks, “How does this transparency blackout affect the current legislature bills that were in motion this session?”

Sandy: The legislature is suspended, indefinitely recessed at this time, so no bills are moving right now. It was recessed, I believe, on March 16th. I think that was the date it was recessed, but legislative offices are open, so if you need to talk with your individual legislator, please call them, email them. They are available. It’s my understanding that individual offices are open. Their physical office at the legislature is closed, but you could still talk to them, contact them, reach out to them.

Joe: Another question from Dwayne, he asked, “When the transparency blackout ends, how can an accounting of activities like law, rule changes, or contracts that are executed and all that, how can that be known if we don’t have transparency?”

Brian: I’ll take that one. How can that be known? The idea is that we’re trying to move toward a situation where there is some transparency during this period. Let’s say if the current situation were to continue throughout, as far as the public records log goes, you could make a request after the suspension is lifted, and it would follow its normal course. The one concern that folks have raised about that particular scenario is the fact that when the laws are in place, the asking of a request, like putting a request forward usually will suspend the destruction of the records.

If you are in a situation where the laws don’t apply and a request is made, that provision that would keep people from destroying records while there is a pending request doesn’t necessarily apply, and that leads to concerns that records may be lost during this period. That’s one of the things that we’re trying to directly address in this period where we’re talking about things that should be in place just for better protection of the public’s interest.

Joe: Another question, from Gerald Cato, he asked, “How long can the governor suspend open government or other laws under emergency powers?”

Brian: The emergency powers’ provisions, they work in terms of 60-day periods, but they can be continued. If you look at, for example, what the governor did with the homeless emergency proclamations that he had done, I don’t remember how long ago that was, it was like maybe a year and a half ago or so, part of that was suspending the Sunshine Law as it pertained to trying to get things done in addressing the homeless crisis.

That continued for a long period of time. I don’t think it had any practical effects in the end because the Sunshine Law really wasn’t impeding response to the homeless crisis, but it continued for a long period of time. It’s not a question of how long can he do it for these particular laws, it’s a question of how long the emergency is.

Joe: I see. Donna Wong asks, “Are O’ahu neighborhood boards considered boards that would fall under Governor Ige’s exemptions?”

Sandy: Yes, they are. For Sunshine Law purposes?

Joe: Yes, and Sunshine. Yes, Sunshine.

Sandy: Yes.

Joe: Okay. Nancy Cook Lauer asked, “Brian, are you saying it’s best to wait before filing an open records requests so they don’t destroy them?” [chuckles]

Brian: [chuckles] There’s a potential risk, but in the end, what I tell folks is it depends on the agency you’re making the request to. There are some agencies that are trying to do the right thing, and for Nancy, for example, I suspect that most of the Big Island agencies are trying to do the right thing. The state agencies are trying to do the right thing. Hopefully, for those that may not be in the right mindset, there will be some relief at some point that the governor will clarify the minimum requirements. That’s what I’m hoping.

Joe: I have a question. I hope you don’t mind me asking. The governor said that a lot of groups are doing the right thing, but how do we know which groups are doing the right thing if there isn’t transparency?

Brian: That’s completely right. The idea of “trust me” on the government only goes so far, and it has a lot to do at this point with– Some people have relationships that they have a better understanding of who they’re working with. Most people don’t. Most people would be legitimately concerned that there’s the risk of documents being lost. There’s a risk that boards and commissions are meeting behind closed doors and not letting people know because they can.

There are these legitimate risks, and that’s why it’s important for there to be, as I said, a precedent that works for everyone to feel like there is the bare minimum in place to alleviate those anxieties, to provide some assurance that we’re setting the right tone that people need to be in the right mindset that they are going to behave in a way that respects public access.

Joe: Mark Hagadone asks a question to Brian, “When you say it depends on how long the emergency lasts, then how is that signal to them? What defines the end of the emergency to the point where the governor could use that as an excuse to waive transparency?”

Brian: If someone were to push this in terms of a lawsuit or an attack, there are potential ways to do it, but there is a lot of discretion for the governor within the emergency powers statute to decide when an emergency ends and to decide what the scope of the necessary responses to it. I’m not sure that a lawsuit or a challenge to his authority to do that is probably the most productive way. Thinking about it in terms of how would you attack his authority is probably counterproductive. It’s more think about it in terms of how can we get to a point where we’re all a little bit less nervous.

Joe: Jonathan Durrett asks Sandy, “Is there a state that we can hold up as a model in this transparency of records area?”

Sandy: That’s a great question, and I don’t know of one. We’re all just feeling our way through it because different states are open to a different degree. Some legislatures are still meeting and they’re more open than ours. Different states are more open than us just because they’re more open and they’re meeting. Other legislatures are still working, passing bills, and their government is more functioning, even though ours is functioning, is working, but theirs is more open.

Joe: There’s a lot of questions. There’s a lot of similar questions that people are asking about what can we do? How can we fix it? What venues can we use to voice our concerns? Is the best way a legal avenue or just persuasion? How do we fix it?

Sandy: That’s another great question. Through Common Cause, we’ve written six or seven letters to different boards and commissions that have been meeting, County Council Committees that have been meeting, letting them know that not allowing for real-time testimony is not proper, that’s not real public participation. Not providing online materials is not proper. Just being aware of maybe what agencies are meeting is really important.

Then, letting your elected officials, letting government agencies and boards know what you expect of them. Just because Sunshine Law may have been suspended doesn’t mean that they can’t do the right thing and they shouldn’t do the right thing. There’s technology out there. At the very minimum, there’s a phone. Use the phone. It is possible. If you guys want any of our letters, I’m happy to share them. Yes, just knowing, being aware.

Joe: Okay. Dwayne Lopez asked, “Conversely, from the governor’s point of view, how does a blackout of transparency aid his emergency actions?”

Brian: Like I mentioned before, I think it’s taking a step back, like going back to mid-March when this was entered, and not knowing– I think that was even before the stay-at-home and all that, not knowing where things were going to go but knowing probably that there was going to be some more extreme steps that needed to be taken. The concern I have heard voiced is that they needed some flexibility in terms of not knowing, in terms of the uncertainty they had as to where things were going to go.

Now, as I mentioned, I’m not sure that the intent of the proclamations is as far as what it was subsequently interpreted it to be, but the idea, in general, was that there’s a possibility that you wouldn’t have people who were available, staff, employees, government employees available to do the things that they previously had done in terms of responding to records requests. The open meetings is a completely different world. You have to learn whatever the technology is and be able to implement it. Those uncertainties were such that the thought process behind the proclamations, as far as I have an understanding of it, was the need for a little bit more flexibility.

Joe: Okay. Well, that’s most of the questions we have answered actually in the audience, but I have a question, which is, for the people, Sandy, who signed your letter, it seemed like there were more than, I don’t know, 10 or 20 groups, or maybe 30 groups out there that signed it. What are they saying and who were some of those groups?

Sandy: We had about 40 plus groups and individuals who signed onto the letter that was submitted March 31st, like I said, to the governor, to all legislators, to the mayors, and to council members. Here are a sample of some organizations. ACLU of Hawaii, of course, your organization, Grassroot Institute of Hawaii, The Civil Beat Law Center for the Public Interest. Say that out loud, all of it. Community Alliance on Prisons, Hawaii Appleseed Center for Law and Economic Justice, some individuals, Lance Collins.

We had Hawaii’s Thousand Friends, Hawaii Community Lending, Libertarian Party, LGBT Caucus Democratic Party. We had Media Council Hawaii, Ryan Ozawa, Transform Hawaii Government, West Maui Preservation Association. It’s a broad section of groups. People are concerned of this lack of transparency, just this lack of understanding of how government going about conducting business in this time of public health crisis and not being cognizant of how this affects the public and how public is feeling being at home and not knowing what’s going on with what government is doing.

This just creates more anxiety for us. Just needing to be part of what our government is doing, just feeling connected and being in tune with what’s going on and feeling like we have a hand in controlling our lives in a little bit and helping out and having some input, that’s really what this is about, not government just going off and saying, “We’re just going to do this without your input,” because government is really elected by us and should be responsible and responsive to us, is what I say. If government just goes off or runs off telling us what to do without any input from us, that’s not our government. That is not our government.

Joe: We have a few other questions here too. Tim Means says, “Has there been any response to your letters, or have they just ignored them?”

Sandy: Sorry about that. Yes, that’s a big part. We did get a letter back from Governor Ige, and it was a nice letter, but it really said, “Hey, we’re doing the right thing. Don’t worry about it. The boards or commissions are continuing to meet,” but that’s the problem. It’s the fact that they are continuing to meet and how do we know this if there’s not a Sunshine Law that they’re supposed to follow and they’re supposed to post notice that we can know about that they’re meeting and that we could participate in and that we could give public input and public comment and participate in real-time.

That was the whole disconnect with our government, that they are continuing to meet and that we don’t know about what they’re meeting about and letting us participate. We should know about them. They should understand our fears and our concerns, and we should be able to guide them in some sense. We understand that they have to move fast. We’re in a pandemic. We shouldn’t be bogged down, but they should also know what our concerns are.

Joe: Ed Hano asks, “Given the governor’s needs for flexibility, why can’t he provide what factors will influence his decision to end the suspension of the sunshine laws?”

Brian: He has indicated that the suspension of the public access laws was intended to be temporary. There are ongoing conversations about trying to, as I said, put in place some minimum procedures that will help to alleviate a lot of the anxiety and a lot of the concerns that have been voiced. I don’t necessarily disagree that it would be helpful to know what he’s thinking, but even if the public access laws were in effect, he wouldn’t have to articulate that.

Keli’i: Just to dovetail on that a bit. My understanding is that open records and open meeting laws generally pertain to deliberative bodies, bodies we have to watch in carrying out their functions, but doesn’t the governor have executive powers and emergency powers that can be used? Wouldn’t those equip him to deal with most of the issues he would need to deal with in a time of crisis?

Brian: Yes. Actually, the public records law isn’t limited to the boards and commissions or the deliberative discussion part of it. The public records law applies across the board to all government agencies. The idea of the emergency power statute is, as you’re saying, like he would have the authority to address most of his concerns through the powers that are granted by that statute. I don’t know if that–

Keli’i: That raises again the question we addressed earlier, “Why?” What goal is there in the suspension of many of the features of Chapter 92? What was the aim of all of these? I know, Brian, you mentioned flexibility that does give broad flexibility, but just practically, how necessary was it? That’s an open question we probably are going to leave today. Joe, do we have any other questions before we close up?

Joe: Yes, a couple of more. Malia Hill, the policy director at Grassroot Institute, is watching. She asked, “When the emergency is over, what kind of changes can we propose in the law to protect Hawaii’s transparency laws from another such blanket suspension in the future?”

Keli’i: Great question.

Brian: Yes, definitely a really good question. As I said, trying to set the right precedent and reform this precedent that has been set of the idea that you just throw out both laws and that’s it, and trying to set up a minimum standard, that’s one way to address it so that we can at least point to something in the future if this comes up. The difficulty with the way the emergency powers statute is written is it provides for pretty broad authority.

I suppose the legislature, they could limit that authority in some respects by statute maybe, but then, again, his authority under the Constitution may not make a difference. The only way you could for sure make sure that something like this didn’t happen again would be to have a constitutional amendment, something that puts into place something clear as far as what the bare minimum is for public access.

Keli’i: Sounds like a great ConAm [chuckles]. Joe, any more questions.

Joe: The last question here that pertains to this is basically, someone is just voicing concerns. She says, “A lot of groups believe that when the capital, under the guise of protecting each other from the spreading coronavirus, most were accepting, and now we’re realizing we’ve lost our voices and rights.” It does seem that there’s a lot of people who are saying things like that. Mark Coleman asks, “Brian, you said something about an emergency statute. Can that be amended to restrict the capriciousness of future emergency proclamations? Is that a constitutional amendment as you just mentioned?”

Brian: Yes. Like I said, either one of those would have to go through the legislature, whether it’s a ConAm or a statutory amendment. I’m not even sure that a statutory amendment, so that emergency powers law, would necessarily limit the governor’s constitution ability to control public order. It would at least provide guidance if it were statutory, but a ConAm would definitely be the way to ensure that this didn’t happen in the future.

Keli’i: Very good. Joe, thank you for moderating the Q&A period. That’s Joe Kent, executive vice president of Grassroot Institute. Any parting thought or farewell from you, Brian, and then from Sandy?

Brian: No, I didn’t have anything further to add. Thank you, Keli’i.

Keli’i: Well, Brian, thank you very much. Thanks for your ongoing work at The Civil Beat Law Center. Sandy?

Sandy: No. Thank you. Thank you for having us and thank you for holding this session.

Keli’i: Thanks for coordinating the coalition of those who have responded to the governor, Sandy, with Common Cause. We appreciate it.

Well, everyone, we appreciate you joining us today at the Grassroot Institute webinar. We’ll see you next week on the 20th. Just go to our website to sign up. Until then, aloha, and thank you for being here today.