Government in the Darkness

by Tom Yamachika, President, Tax Foundation Hawaii

Previously in this space, we spoke of various laws that were suspended by the Governor’s emergency proclamations. In a press release on March 17, 2020, entitled “Democracy Still Matters in Time of Pandemic,” the watchdog group Common Cause Hawaii pointed out that a Supplemental Emergency Proclamation, issued by Governor Ige on March 16, 2020, suspended many laws pertaining to transparency and accountability, including chapters 92 and 92F of the Hawaii Revised Statutes, relating to open meetings of government decision-making bodies and public access to government records.

The Office of Information Practices, which enforces both of those laws, issued advice to agencies and boards on March 23, and, among other things, told agencies that boards and other public bodies holding meetings were encouraged to give notice and public visibility to meetings but it was okay to meet behind closed doors with no public notice. Public records requests made after the Supplemental Emergency Proclamation took effect could just be ignored. It told agencies that if they wanted to respond, they could say:

As this is a global pandemic and a serious threat to the safety and welfare of our state’s population, 92F was suspended to give government the maximum flexibility to focus its attention and personnel resources on directly addressing the immediate situation at hand. When the situation is stabilized and there is proper leeway to re-direct those resources, the suspension of 92F will be lifted.

Basically, the Administration’s attitude was something like treating concerned citizens like pond scum, and saying, “We’ll get back to you later. Maybe.”

In the Seventh Supplemental Proclamation on May 6, the Administration backed off a bit. With regard to public meetings, boards were now ordered to post meeting notices and accept written testimony from the public. Regarding records requests, agencies now needed to acknowledge them, respond to them as resources permit, and aren’t supposed to destroy either the requests or the requested records.

That modest progress happened because of the Civil Beat Law Center negotiating over several weeks with the Department of Attorney General on behalf of a coalition of nonprofit public watchdog groups including the Tax Foundation of Hawaii.

To me, however, justification for suspending these laws in the first place is and was sketchy.

Under the emergency powers statutes, the Governor can suspend any law that creates hardships and inequities; obstructs public health, safety, or welfare; or impedes or tends to impede emergency functions. Could someone explain to me how allowing public board meetings to be conducted in public creates hardships and inequities? Could someone explain to me how the public records laws impede emergency functions? Could someone please explain to me how or why the snuffing out of governmental accountability relieves hardships and inequities, or obstructs public health, safety or welfare?

The official explanation, that compliance with the laws will take away agency time and resources and otherwise would be inconvenient, could be applied to any law in any way restricting the power of government. At least the federal laws and state constitution can’t be suspended in this way.

The Common Cause Hawaii press release said it well:

Any reduction in public participation in government proceedings must not be exploited by any political party or interest group for personal, partisan, or other political gain. The same rules of access must apply to everyday Americans and well-connected lobbyists. This is a time for our country to be united to protect each other as we face COVID-19, and that includes respecting and protecting public participation in and oversight of government.