Tuesday, May 17, 2011
OIP had no teeth and now has no guts
by Larry Geller
The Star-Advertiser editorial today (OIP has public duty to issue opinion, 5/17/2011) is right on the money, and perhaps a bit restrained.
All the Office of Information Practices can do is issue an opinion. It has no power, under the statutes, to enforce. If a state department declines to release a document even given an OIP opinion or letter, the citizen has no recourse but to go to court. And that’s expensive.
So for OIP to duck out by suggesting that a matter is better handled by the courts renders the office useless.
The only strength an office such as OIP has rests in the quality of its opinions. Certainly, if an individual, news organization or anyone else has to go to court, the OIP opinion is a valuable exhibit. Well-reasoned opinions therefore gather a strength of their own. That’s what powers this office, since a wary legislature has chosen not to give it enforcement ability.
In fact, there is already an opinion that could have been reiterated in this case, as the Star-Advertiser noted:
The OIP issued an opinion in 2003 rejecting the argument that revealing nominees' names would reduce or weaken the pool of qualified judicial candidates. The state Supreme Court noted in a 1993 ruling that "in our view, no stigma should attach to any judicial nominee not eventually appointed to office," since the Judicial Selection Commission had found its nominees to be qualified.
The editors correctly recapped the controversy over the Governor’s appointment of the new OIP director, Cheryl Kakazu Park, because of its relationship to the issue of the judicial appointment list. Was there a deal done to can any further opinions on releasing the list?
In February, Cathy Takase, then acting director of OIP, told the Star-Advertiser that the governor "must release the names under the law" after his choice of Sabrina McKenna to the Supreme Court was confirmed by the state Senate. Takase's letter was not a formal opinion of OIP. In April, Abercrombie appointed Park to OIP's top spot after naming another attorney to an OIP staff job, essentially blocking Takase out of a job to which she otherwise would have returned.
The controversy over release of the list was bad enough, but the apparent squeeze on Takase adds a whole new scent to the matter.
Efforts to create enforcement powers for the OIP have never succeeded in the Legislature, but that’s now badly needed. Under the current circumstance there is less reason to take a matter to them for resolution than ever before. While that will have a side effect of reducing their workload, it’s arguably not in the public interest for this agency to sideline itself as it has just done.
And too bad the Governor's appointment has had the effect of weakening a valuable state resource.
Larry, you are looking at this from the wrong perspective. If you have "no guts" you don't need teeth. :)