Wednesday, July 20, 2011
Would you pay $531.95 for copies of executive session minutes of meetings that should have been open to the public? Me neither.
by Larry Geller
I received a letter from the Office of Information Practices on July 8, 2011 based on a request to them made back in July, 2010. Hey, I got a response, useless though it now turns out to be.
Useless—because there is no way I am going to pay the asked $531.95 for redacted records of minutes of executive committee meetings that were hot back then but ice cold now, and that I feel should have been provided at no charge.
Cast your mind back to early 2010, before the debt ceiling or News Corp controversies, to the quieter times when all we had to lose were our jobs and homes. A relatively minor skirmish took place in Hawaii as the Ethics Commission sought to fire its 26-year veteran public servant Executive Director, Dan Mollway. It appeared at the time that the criteria under which the Commission was acting were not available to the public because they were discussed entirely behind the closed doors of executive session.
Of course, Mr. Mollway was entitled to the protection of his privacy that the Sunshine Law provides. But Commission actions were questioned, and little information was available to the public. Later, the Commission selected a new ED. I feel they made a great choice, but again, the public knows little about, and could not provide input to, the decision making process.
So I spoke at a meeting and said that I would be requesting the information that should have been available to the public via a request to OIP (Office of Information Practices).
So fast-forward to July 8 and this letter that pops into my email. It seems the Commission has already redacted and organized the material, and the bill is $531.95, but because they did it before I agreed to pay, I am not obligated to pay for their work. Of course, I also don’t get to receive the papers.
In my view, the fact that a portion of the minutes were prepared for release validates my claim that at least part of the discussion should have been open to the public right then, not a year later. OIP did not consider that, but simply did the math on the preparation time.
At today’s meeting of the Ethics Commission I explained my reasoning, and let them know that I would not be paying for the records. The issue is totally cold now, as we worry instead whether we’ll have any Social Security to retire on.
I also don’t know what would be in the material they’re asking such a fortune for.
So there was no ruling on whether part of the secret meetings should have been open, only that I have to pay to get something.
Is there something wrong with all this, or what?
The process issue is still very much with us at present, though.
Back in real 2011 life, the Hawaii Reapportionment Committee is holding these long, lazy (and of course secret) executive sessions. They don’t say what they plan to talk about as required by the Sunshine Law. So the issue of secret meetings is still with us.
A real service would be for the Legislature to define what OIP is required to do. Right now, it’s hard to say they are doing us much good if we need their assistance to get hold of public records. Reasons for that might be found in yesterday’s Civil Beat article 'The Raw Truth' — OIP Responds to Civil Beat (7/19/2010). Check out the article. I have my own take on it.
First, OIP’s reasoning seems generally sound, except that their chosen course, which is not to provide opinions, means they will not fulfill part of the reason they were created in the first place. Suppose a police department decided to stop issuing jaywalking tickets? Suppose the Department of Health decided to stop checking for rats (sorry, bad example)? Suppose issuing marriage licenses became too much of a burden? Can a state agency simply quit part of its job?
So while conceding that they do have a problem, so do we, the people.
We also have an Attorney General’s office that will defend an agency’s wrongdoing. Read the OIP response. They are afraid of agency-suing-agency. What would happen if the AG gave advice to an errant agency and told them that they would not be defended if they choose to break the law? At most secret executive session meetings, a deputy AG is sitting right there, but lets the board or commission break the law anyway. Suppose that stopped? Suppose the AG sitting in with the Reapportionment Commission informed them of their responsibilities under the Sunshine Law?
At the moment, the laws that govern open meetings and open records must be enforced by individuals or organizations going to court. One by one by one, finding an attorney, paying court costs. Due to the expense, of course, that will seldom happen.
So any state agency reading OIP’s response to Civil Beat could safely conclude that nothing will happen to them should they ignore the law. They won’t even be whipped by the wet noodle that an OIP opinion represents anyway.
Perhaps that’s what’s going on right now at the Reapportionment Commission. Why even learn about a law that will not be enforced against you? I’m glad to know that many state agencies do care, but my concern is for those who don’t.
A board or commission has less chance of being held to compliance with our open meetings law than a citizen has of getting a ticket for talking on a cellphone.
Oh, add to that the chance that even if you are right, you might have to pay $531.95 just to be right.