HB1392

SECTION 1. Chapter 92, Hawaii Revised Statutes, is amended by adding to part I a new section to be appropriately designated and to read as follows:

"§92- Alternative enforcement by the office of information practices. (a) Upon the filing of a complaint by any person or at the discretion of the director of the office of information practices, the office of information practices shall review or investigate any action of a board for the purpose of:

(1) Requiring compliance with this part;

(2) Preventing violations of this part; or

(3) Determining the applicability of this part to actions of the board.

(b) If the director determines that a board has violated or will cause a violation of this part, the office of information practices shall, in writing, notify the person who filed the complaint and the board of the decision, the reasons for the decision, and the actions that shall be taken to ensure compliance with or to correct the violation of this part. If the decision is that the board has not violated or will not cause a violation of this part, the office of information practices shall, in writing, notify the person who filed a complaint and the board of the decision, the reasons for the decision, and the person's right to bring a judicial action under section 92-12(c).

(c) The director may apply to the circuit court for an order to enforce the provisions of the decision made pursuant to this section. A proceeding to enforce the decision shall be commenced within ninety days of the action of the board.

(d) Submission of a complaint or initiation of an investigation under this section shall not prejudice a person's right to bring a judicial action under section 92-12."

SECTION 2. Chapter 92, Hawaii Revised Statutes, is amended by adding to part I a new section to be appropriately designated and to read as follows:

"§92- Notice to the office of information practices. Whenever a civil action is brought pursuant to this part, or is based upon, related to, or grounded upon any provision of this part, the plaintiff shall notify the office of information practices of the filing by delivering a file-stamped copy of the complaint to the office of information practices."

SECTION 3. Section 92-1.5, Hawaii Revised Statutes, is amended to read as follows:

"[[]§92-1.5[]] Administration of this part. The director of the office of information practices shall administer this part. The director [shall establish procedures for filing and responding to complaints filed by any person concerning the failure of any board to comply with this part. The director of the office of information practices shall submit an annual report of these complaints along with final resolution of complaints, and other statistical data to the legislature, no later than twenty days prior to the convening of each regular session.]:

(1) Shall, upon the filing of a complaint by any person alleging the failure of a board to comply with this part, review the allegations and determine whether the board has satisfied the requirements of this part; provided that any review shall not be a contested case under chapter 91 and shall not preclude the complainant or any other person from filing suit or initiating a civil action under this part;

(2) Upon request by a board, shall provide and make public advisory guidelines, opinions, or other information concerning that board's functions and responsibilities under this part;

(3) Upon request by any person, may provide advisory opinions or other information regarding that person's rights and the functions and responsibilities of boards under this part;

(4) May conduct inquiries regarding compliance by a board and investigate possible violations under this part;

(5) May examine the records and make inquiries of any board for the purpose of paragraph (4) and seek to enforce that power in the courts of this State;

(6) May recommend disciplinary action to the appointing authority of a board for violations of this part;

(7) Shall receive complaints from and actively solicit the comments of the public regarding the implementation of this part;

(8) May review the official acts, records, policies, and procedures of a board under this part;

(9) Shall assist boards in complying with the provisions of this part;

(10) Shall have standing to appear in civil actions relating to the application of this part;

(11) May commence a proceeding in circuit court to enforce a decision made pursuant to this part; and

(12) Shall report annually to the governor and the legislature on the activities and findings of the office of information practices."

SECTION 4. Section 92-12, Hawaii Revised Statutes, is amended to read as follows:

"§92-12 Enforcement. (a) The attorney general and the prosecuting attorney shall enforce [~~this part.~~] section 92-13.

(b) The circuit courts of the State shall have jurisdiction to enforce the provisions of this part by injunction or other appropriate remedy.

(c) Any person may commence a suit in the circuit court of the circuit in which a prohibited act occurs for the purpose of requiring compliance with or preventing violations of this part or to determine the applicability of this part to [~~discussions or decisions of the public body.~~] actions of the board. The court may order payment of reasonable attorney fees and costs to the prevailing party in a suit brought under this section.

(d) The proceedings for review shall not stay the enforcement of any [~~agency~~] board decisions; but the reviewing court may order a stay if the following criteria have been met:

(1) There is likelihood that the party bringing the action will prevail on the merits;

(2) Irreparable damage will result if a stay is not ordered;

(3) No irreparable damage to the public will result from the stay order; and

(4) Public interest will be served by the stay order."

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.

INTRODUCED BY:

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BY REQUEST

HOUSE OF REPRESENTATIVES	H.B. NO.	1392
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII