Abercrombie Lacks Openness, Critics Say
by Dave Smith
Gov. Neil Abercrombie was criticized twice today for what was described as efforts to keep the public in the dark.
The Big Island Press Club today announced that Abercrombie was the recipient of the club’s Lava Tube award. This is the 15th year that the club has issued the award that recognizes the year’s most notable offense regarding government openness.
The press club’s awards are announced each year on March 16, Freedom of Information Day, honoring the birthday of James Madison, author of the US Constitution.
Abercrombie was given the award for two reasons, the club’s board said. The first was the governor’s refusal last year to reveal the names of nominees to fill a vacancy on the Hawaii Supreme Court, as previous governors have.
His refusal prompted the Honolulu Star-Advertiser to file a lawsuit, saying his action violated the state’s Uniform Information Practices Act. The Supreme Court agreed.
The press club noted that Cathy Takase, director of the state Office of Information Practices at the time, also said Abercrombie should reveal the names. When her term expired shortly thereafter, the governor replaced her with his own appointee.
An Abercrombie spokeswoman said then it was common for new governors to name their own director and that the new appointment was not related to Takase’s opinion on the release of the names.
The second reason given by the press club was the governor’s emergency proclamation – which was signed in June 2011 but not made public until September – suspending for five years dozens of environmental regulations to allow the removal of military ordnance with no notice to the public.
The press club today also announced that its Torch of Light award was being given to the Star-Advertiser for its efforts to obtain release of the names of the judicial nominees.
“Freedom of Information Day is a great reminder that the public’s right to know is just that, a right,” said BIPC President Yisa Var. “It should not and will not be compromised.”
Abercrombie was also criticized today for a bill he has proposed that would change the way the Office of Information Practices operates.
Beverly Keever, a professor emerita of journalism at the University of Hawaii, said Abercrombie is on his way to becoming Hawaii’s most secretive governor since the state’s open-records law was created in 1987.
In an opinion piece published today in the Hawaii Reporter, Keever blasted the Abercrombie administration’s support for Senate Bill 2858, which she said “eviscerates” a key aspect of the law that created the Office of Information Practices.
For the past 25 years, the OIP has been the go-to place for the public to obtain government records. Keever noted that the Legislature established it as “a place where the public can get assistance on records questions at no cost and within a reasonable amount of time.”
The bill, which has already passed the Senate and was passed today by the House Judiciary Committee, would change Chapter 92 of state law to allow agencies that have been ordered by OIP to turn over documents to challenge that order in court.
Keever said the Legislature recognized in 1989 that the OIP’s mission to provide quick and uniform access to government records “would be frustrated by agencies suing each other.”
Numerous state agencies submitted testimony in support of the bill, including the OIP.
Its director, Cheryl Kakazu Park, who was appointed by Abercrombie last year, noted that the law establishing the agency allows those requesting a government record to sue OIP if their request is denied, but doesn’t allow agencies to go to court to challenge its rulings.
She further noted that a 2005 lawsuit brought against OIP by the County of Kauai was allowed to proceed under a different section of Chapter 92, the section known as the “Sunshine Law.”
Park said OIP proposed Senate Bill 2858 to seek “legislative clarification” of the rights of agencies to appeal her agency’s rulings.
“OIP proposes the creation of a uniform procedure applicable to both the UIPA and the Sunshine Law, which would strictly define and limit agencies’ right to appeal OIP opinions,” Park’s testimony said.
The testimony from numerous state agencies was unusual in that most contained similar phrasing and, in some cases, whole sentences that were identical.
While it is common to see form letters from the public in testimony on controversial legislative bills, it is uncommon to see them from a host of government agencies.
Larry Geller, whose Oahu blog “Disappeared News” has consistently argued on behalf of the public’s right to know, testified the bill has other flaws.
He said the bill’s provision that neither the Office of Information Practices nor the person requesting the release of information has to be in court, which means that neither could lose through default, appears to be “bogus” reasoning.
“If you want to win in court you need to be there, telling it to the judge,” Geller said in testimony submitted to the Senate.
The inevitable consequence of the bill, according to Geller, is that counter to OIP’s mission, citizens will have to go to court to force government agencies to provide information.
Abercrombie had a previous foray counter to public openness. While serving as a member of the Honolulu City Council from 1988-90, he attempted to secure for that body the same exemptions from the state Sunshine Law that the state Legislature had granted itself. His efforts were unsuccessful.
Abercrombie’s press secretary, Donalyn Dela Cruz, told Big Island Now that the governor would have no comment on either the Lava Tube award or Keever’s commentary.