The following letter was sent to Maui County officials today by attorney Lance D Collins.

These are excerpts.  The entire letter may be read >>> HERE.

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Dear Mayor Victorino and Chair Lee,  April 6, 2020

I write you today regarding open government requirements during this COVID-19 emergency and County operations.

As you know the governor in his first Supplemental Proclamation, dated March 16, 2020, suspended the operation of certain open government laws Chapters 91, 92 and 92F, Haw. Rev. Stat., among others. He encouraged the use of technology to allow remote participation. The purpose of the suspension was “in order for state and county agencies to more effectively provide emergency relief and engage in emergency management functions, including, but not limited to, implementing social distancing measures.” The governor did not suspend any provision of the Charter or the constitution nor is he empowered to suspend the Charter or constitution by statute.

Recent statements by some members of the Council and department directors to the media make it seem as though the Council and county boards and commissions are now exempt from open government requirements. The proclamation did not suspend operation of the County Charter or the state or federal constitutions.

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Budget Public Hearing

Section 9-4 of the Charter requires the Council to conduct a public hearing on the proposed budget and capital program during the month of April. This obligation includes providing notice to the public and allowing for interactive communications access. This obligation is independent of Chapter 92, Haw. Rev. Stat. and must be satisfied in order to comply with the Charter's requirements of openness and transparency in the budget process.

Access to Government Records

Unlike some state agencies, there have been no reports that County agencies have denied reasonable access to government records during the emergency so far. The County must be commended for the proactive and frank manner in which all branches have communicated regarding government operations in this time of uncertainty.

There appears to be some misunderstanding of what Chapter 92F, Haw. Rev. Stat. does and does not do. Chapter 92F, Haw. Rev. Stat. provides a uniform procedure by which a member of the public may inspect and copy a government record as well as protect personal information. It does not establish the right of members of the public to inspect and copy such records and it does not independently establish a duty of an agency to provide access. Those rights and duties are established by several constitutional provisions, the Charter as well as the common law.

The obligation to allow inspection and copying of county records, for example, is a duty imposed by Section 13-9(1) of the Charter. Chapter 92F, Haw. Rev. Stat. merely created a uniform procedure to facilitate access to such information. Suspending Chapter 92F, Haw. Rev. Stat. merely suspends the uniform procedure by which to deal with record requests, it does not suspend the right of the public to seek information or the duty of the government to provide it.

It seems sensible that to the extent agencies can follow the procedures set out in Chapter 92F, Haw. Rev. Stat., the agencies should do so to minimize confusion regarding longstanding procedures for accessing government information. Requests by members of the media for matters of public interest should be resolved expeditiously. Agencies should commit that any requests that cannot be reasonably answered because of disruptions caused by the emergency will be answered after the emergency.

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Emergency rules cannot be used to defeat the host of laws designed to secure regular and appropriate review, related to environmental quality, of development projects, not related to relief or emergency management functions. For example, building a field hospital to treat patients during a public health emergency would be allowed without the otherwise necessary regular review required by law. Allowing building or development to occur that was proposed before the emergency to occur without review simply because the applicant seeks to move forward during the emergency would not be permissible.

As recently as several months ago, the governor was enjoined by the First Circuit Court from using his emergency powers under Chapter 127A, Haw. Rev. Stat. to infringe upon the constitutionally protected traditional and customary practices of Native Hawaiian practitioners at Mauna Kea. An emergency does not suspend the rule of law or common sense but is designed to ”protect the public health, safety, and welfare, and to preserve the lives and property of the people of the State[.]” HRS 127A-1

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I strongly encourage the County to consider adopting the interim procedures and standards relating to open meetings and government record requests proposed by Common Cause Hawai'i and the Civil Beat Law Center for the Public Interest as guidance for county agencies during the emergency.

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Very truly yours,

LAW OFFICE OF LANCE D. COLLINS

LANCE D. COLLINS

PDF: Full Letter (4pgs)

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