| 43 | | - | WHEREAS, the 1988 Legislature recognized, when enacting the Uniform Information Practices Act (Modified), chapter 92F, Hawaii Revised Statutes (UIPA), that there would be gray areas and unanticipated cases arising in the implementation of the UIPA that should be left to the Office of Information Practices (OIP) and courts to balance competing interests to determine whether disclosure would be required, and the UIPA's exceptions were crafted to allow for the development of such a common law; and WHEREAS, federal courts created the deliberative process privilege (DPP) in the 1950s to encourage and allow for frank and candid agency deliberations as a means to promote more effective government decision-making; and WHEREAS, based on the federal Freedom of Information Act (FOIA), relevant state and federal caselaw, and the UIPA's own legislative history, for nearly 30 years, the OIP recognized the DPP as a form of the UIPA's exception to disclosure for records whose disclosure would frustrate a legitimate government function, section 92F-13(3), Hawaii Revised Statutes; and WHEREAS, the federal DPP has been the subject of significant criticism for abuse by agencies and consequent efforts by Congress to identify "language that will ensure that the executive agencies administering FOIA will strike the appropriate balance between privacy that is absolutely necessary for candid conversations in the development of effective public policy and transparency that is necessary and expected in a government by the people and for the people"; and WHEREAS, other jurisdictions across the country utilize a wide spectrum of approaches to transparency for agency deliberations; and WHEREAS, this body believes that in order to reach sound decisions on the various questions that come before them, agencies in some instances need their employees and officers to fully and frankly discuss proposed policies or tentative decisions at an internal level, outside the glare of publicity, and with the freedom to express views or editorial changes that may not be incorporated into the final decision; and WHEREAS, interested stakeholders should consider the appropriate balance between transparency and deliberative process for effective agency decision-making in Hawaii, and recommend a new statutory standard that balances the various agency and public interests; now, therefore, BE IT RESOLVED by the Senate of the Thirty-first Legislature of the State of Hawaii, Regular Session of 2022, the House of Representatives concurring, that the Office of Information Practices is requested to convene a working group to develop recommendations for a new UIPA statutory exception and other recommendations for deliberative and pre-decisional agency records to reasonably balance the public's interest in disclosure and the agency's ability to fully consider and make sound and informed decisions; and BE IT FURTHER RESOLVED that the working group is requested to gather and consider information from interested and affected parties as well as examine the law and practices in Hawaii and other jurisdictions, with the goal of developing recommendations to address government's need for and the public's concern about deliberative and pre-decisional agency processes and records in decision-making; and BE IT FURTHER RESOLVED that the working group is requested to include seven members consisting of three individuals representing public interest groups; three individuals representing government agencies subject to the UIPA; and the Director of the Office of Information Practices or the Director's designee, who shall appoint the members and serve as the working group convener; and BE IT FURTHER RESOLVED that the Director of the Office of Information Practices is requested to report the findings and recommendations of the working group to the Legislature no later than twenty days prior to the convening of the Regular Session of 2023; and BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Governor, Director of the Office of Information Practices, Executive Director of the Civil Beat Law Center for the Public Interest, President of the League of Women Voters of Hawaii, and Executive Director of Common Cause Hawaii. Report Title: Agency Records; Study Group; Office of Information Practices |
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| 43 | + | WHEREAS, the 1988 Legislature recognized, when enacting the Uniform Information Practices Act (Modified), chapter 92F, Hawaii Revised Statutes (UIPA), that there would be gray areas and unanticipated cases arising in the implementation of the UIPA that should be left to the Office of Information Practices (OIP) and courts to balance competing interests to determine whether disclosure would be required, and the UIPA's exceptions were crafted to allow for the development of such a common law; and WHEREAS, federal courts created the deliberative process privilege (DPP) in the 1950s to encourage and allow for frank and candid agency deliberations as a means to promote more effective government decision-making; and WHEREAS, based on the federal Freedom of Information Act (FOIA), relevant state and federal caselaw, and the UIPA's own legislative history, for nearly 30 years, the OIP recognized the DPP as a form of the UIPA's exception to disclosure for records whose disclosure would frustrate a legitimate government function, section 92F-13(3), Hawaii Revised Statutes; and WHEREAS, the federal DPP has been the subject of significant criticism for abuse by agencies and consequent efforts by Congress to identify "language that will ensure that the executive agencies administering FOIA will strike the appropriate balance between privacy that is absolutely necessary for candid conversations in the development of effective public policy and transparency that is necessary and expected in a government by the people and for the people"; and WHEREAS, other jurisdictions across the country utilize a wide spectrum of approaches to transparency for agency deliberations; and WHEREAS, this body believes that in order to reach sound decisions on the various questions that come before them, agencies in some instances need their employees and officers to fully and frankly discuss proposed policies or tentative decisions at an internal level, outside the glare of publicity, and with the freedom to express views or editorial changes that may not be incorporated into the final decision; and WHEREAS, this body would like interested stakeholders to consider whether there is consensus on the appropriate balance between transparency and deliberative process for effective agency decision-making in Hawaii, and to recommend a new statutory standard that balances the various agency and public interests; now, therefore, BE IT RESOLVED by the Senate of the Thirty-first Legislature of the State of Hawaii, Regular Session of 2022, the House of Representatives concurring, that the Office of Information Practices is requested to convene a working group to develop a consensus on language for a new UIPA exception for agency records that are deliberative and pre-decisional which reasonably balances the public's interest in disclosure against the potential harm to the agency's ability to fully consider and make sound and informed decisions; and BE IT FURTHER RESOLVED that the working group is requested to gather and consider information from interested and affected parties as well as examine the law and practices in Hawaii and in the application of similar exceptions in other jurisdictions, with the goal of developing a consensus on language for the new UIPA exception; and BE IT FURTHER RESOLVED that the working group is requested to include seven members consisting of three individuals representing public interest groups; three individuals representing government agencies subject to the UIPA; and the Director of the Office of Information Practices or the Director's designee, who shall appoint the members and serve as the working group convener; and BE IT FURTHER RESOLVED that the Director of the Office of Information Practices is requested to report the findings and any recommendations of the working group to the Legislature no later than twenty days prior to the convening of the Regular Session of 2023; and BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Governor, Director of the Office of Information Practices, Executive Director for the Civil Beat Law Center for the Public Interest, President of the League of Women Voters of Hawaii, and the Executive Director of Common Cause Hawaii. OFFERED BY: _____________________________ Report Title: Agency Records; Study Group; Office of Information Practices |
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