OIP SUNSHINE LAW LEGISLATIVE UPDATE
News Release from OIP, Jul 22, 2024
Governor Josh Green recently signed two bills amending the Sunshine Law into law, both of which became effective immediately.
Act 160 (HB 1597, HD1, SD1) aligns the court enforcement provisions of the Sunshine Law with those provided under Hawaii’s public records law – the Uniform Information Practices Act (Modified), chapter 92F, HRS. Specifically, Act 160 (1) clarifies that members of the public may sue a board or alleged board after receiving an adverse Office of Information Practices (OIP) decision, and that the decision will be reviewed by the court de novo; (2) establishes a two-year statute of limitations to bring actions and reaffirms a complainant’s right to seek review by OIP first; (3) requires that only a member of the public may recover attorney’s fees and costs if that person prevails in an open meetings lawsuit; (4) requires that persons suing for Sunshine Law violations notify OIP about the lawsuit so that it may decide whether to intervene; and (5) requires Sunshine Law lawsuits that seek to void a board’s final action to be prioritized by the courts.
Act 166 (HB 2482, HD1, SD2, CD1) replaces the requirement for the Lieutenant Governor or County Clerk to post meeting notices at a central location in a public building with a requirement to “ensure access” to those notices without specifying a method of doing so.
OIP is in the process of updating the Sunshine Law training materials on its website to reflect these new laws, as well as the new Sunshine Law provisions in Acts 011, 012, and 013 which OIP reported on in a What’s New posted on May 22, 2024.
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THREE SUNSHINE LAW BILLS SIGNED INTO LAW
News Release from OIP, May 22, 2024
Governor Josh Green recently signed three bills amending the Sunshine Law into law, with two effective immediately and one effective on January 1, 2025.
Act 011 (HB1598, HD1, SD2), which has already gone into effect, amended the Sunshine Law’s board packet provision. When a board distributes materials to the board members before a meeting for their use at the meeting, those materials (the board packet) must now be distributed and made available to the public at least two business days prior to the meeting. This two business day deadline replaces the 48 hour deadline that was formerly applicable to board packets. Act 011 also created an exception to this deadline for written public testimony, which can now be distributed to board members and the public at any time before a meeting without having to comply with the two business day deadline. Thus, written testimony can be sent out to members and made available to the public at any time before the meeting, but other materials cannot be distributed within the last two business days prior to the meeting.
Act 011 also created two new requirements for providing public access to the board packet: (1) when a board notifies the people on its mailing list that a board packet is available, that notification must now include a list of the documents in the board packet, and (2) the board packet must now be posted on the board’s website as soon as practicable.
Act 012 (HB1599, HD1, SD2), which takes effect on January 1, 2025, requires a board holding a remote meeting to always give testifiers the option of a Zoom link or similar option for remote testimony. Boards have previously had the option to use a call-in number or similar non-video method for accepting remote public testimony, but starting on January 1 boards will have to provide a remote testimony option that allows testifiers to be seen by the board (although testifiers can still choose to go camera-off). The law also adds a specific statement that nothing in the Sunshine Law’s remote meeting section “shall prohibit a board from removing or blocking any person who wilfully disrupts or compromises the conduct of a meeting.”
Act 013 (HB1600, HD1, SD2), which has already gone into effect, requires boards to wait at least six business days between the meeting at which a permitted interaction group (PIG) makes its report, and the meeting at which the full board can discuss and act on the issues investigated and reported on by the PIG. The Sunshine Law, at subsection 92-2.5(b)(1), HRS, allows a government board to set up a PIG to work together outside the context of a board meeting to investigate an issue. This process requires three separate board meetings: the first to assign the PIG members and set the scope of their investigation and authority; the second to hear the PIG’s report without board discussion or decision (at which point the PIG is effectively dissolved); and the third for the full board to discuss and perhaps take action on the issue the PIG investigated. OIP has long interpreted this provision to require a board to provide sufficient time between the second and third meetings for the public to digest the PIG’s report and then testify on it before the full board’s discussion and possible action on the issue at the third meeting, and Act 013 codifies that interpretation and sets six business days as the specific minimum period that must elapse between the second and third meetings.
Two more bills OIP has been closely watching are still waiting for the Governor’s approval: HB 1597, HD1, SD1, which would align the court enforcement provisions of the Sunshine Law with those provided under the UIPA (chapter 92F, HRS), and HB 2482, HD1, SD2, CD1, which would replace the requirement for the Lieutenant Governor or County Clerk to post meeting notices at a central location in a public building with a requirement to “ensure access” to those notices without specifying a method of doing so. OIP will report on the outcome of those bills in a future What’s New.