SB1113.DOC

SECTION 1. The purpose of this Act is to enhance various provisions of Hawaii's laws relating to public agency meetings and records, and information practices by:

(1) Clarifying that the office of information practices has the authority to enforce the open meetings law, and allowing the office to waive any fee to access a record under specified conditions;

(2) Requiring executive meetings of boards to be properly noticed and subject matter and discussion in an executive meeting to be announced in public upon reconvening;

(3) Clarifying the scope of discussions that a government entity may have with its attorney during a closed executive session by limiting discussions to matters that may have the potential for litigation; and clarifying that government entities have no statutory right to request judicial review of decisions of the office of information practices;

(4) Requiring notice of state board meetings to be posted on the state central website and eliminating the requirement that these notices be filed with the office of the lieutenant governor;

(5) Allowing for the notification of meetings and the transmittal of meeting minutes by electronic mail and requiring concurrence from the office of information practices rather than the attorney general for boards to hold emergency meeting for unanticipated events; and

(6) Clarifies that audio or video recordings are permitted at public board meetings.

SECTION 2. Section 92-1.5, Hawaii Revised Statutes, is amended to read as follows:

"[[]§92-1.5[]] Administration and enforcement of this part. The director of the office of information practices shall administer and enforce 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."

SECTION 3. Section 92-4, Hawaii Revised Statutes, is amended to read as follows:

"§92-4 Executive meetings. (a) A board may hold an executive meeting, subject to subsection (b), closed to the public upon an affirmative vote[,] taken at an open meeting[,] of two-thirds of the members present; provided that the affirmative vote constitutes a majority of the members to which the board is entitled. A meeting closed to the public shall be limited to matters exempted by section 92-5. The reason for holding such a meeting shall be publicly announced and the vote of each member on the question of holding a meeting closed to the public shall be recorded[,] and entered into the minutes of the meeting.

(b) No executive meeting shall be held unless properly noticed on the agenda in advance of a duly noticed open meeting, that includes:

(1) A statement of justification for the executive meeting;

(2) The subjects to be discussed in the executive meeting; and

(3) The time and place of the resumption of the open meeting.

Upon resumption of the open meeting, the board shall disclose in that open meeting the subjects discussed and the actions taken in the executive meeting."

SECTION 4. Section 92-5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) A board may hold a meeting closed to the public pursuant to section 92-4 for one or more of the following purposes:

(1) To consider and evaluate personal information relating to individuals applying for professional or vocational licenses cited in section 26-9 or both;

(2) To consider the hire, evaluation, dismissal, or discipline of an officer or employee or of charges brought against the officer or employee, where consideration of matters affecting privacy will be involved; provided that if the individual concerned requests an open meeting, an open meeting shall be held;

(3) To deliberate concerning the authority of persons designated by the board to conduct labor negotiations or to negotiate the acquisition of public property, or during the conduct of [~~such~~] the negotiations;

(4) To consult with the board's attorney on questions and issues pertaining to the board's legal responsibilities and matters relating to potential or actual lawsuits involving the board or the board's powers, duties, privileges, immunities, and liabilities;

(5) To investigate proceedings regarding criminal misconduct;

(6) To consider sensitive matters related to public safety or security;

(7) To consider matters relating to the solicitation and acceptance of private donations; and

(8) To deliberate or make a decision upon a matter that requires the consideration of information that must be kept confidential pursuant to a state or federal law, or a court order."

SECTION 5. Section 92-7, Hawaii Revised Statutes, is amended as follows:

1. By amending subsections (a), (b), and (c) to read:

"(a) The board shall give written public notice of any regular, special, emergency, or rescheduled meeting, or any executive meeting when anticipated in advance. The notice shall include an agenda [~~which~~] that lists all of the items to be considered at the forthcoming meeting[,] and the date, time, and place of the meeting[~~, and~~]; provided that in the case of an executive meeting the purpose shall be stated.

(b) [~~The~~] At least six calendar days before the meeting, the board shall file the notice in the [~~office of the lieutenant governor or the appropriate county clerk's office, and in the~~] board's office for public inspection[~~, at least six calendar days before the meeting. The notice shall also be posted~~] and shall also post the notice at the site of the meeting whenever feasible. At least six calendar days before the meeting, a state board shall also file the notice by electronic posting on the state calendar maintained on the designated central State of Hawaii internet website, and a county board shall file the notice in the appropriate county clerk's office. In the event that a state board is unable to file the notice on the state calendar because of an interruption in service that prevents access to the state calendar, the board shall file the notice in the office of information practices. The office of information practices shall then post the notice on the state calendar as soon as service is restored.

(c) If the [~~written public~~] notice is filed [~~in the office of the lieutenant governor or~~] on the state calendar or in the appropriate county clerk's office less than six calendar days before the meeting, the [~~lieutenant governor~~] state boards' notice shall be rejected or the appropriate county clerk shall immediately notify the chairperson of the board, or the director of the department within which the board is established or placed, of the tardy filing of the meeting notice. The meeting shall be canceled as a matter of law, and the chairperson of the board or the department director shall ensure that a notice canceling the meeting is posted in the board's office and at the place of the meeting, and no meeting shall be held."

2. By amending subsection (e) to read:

"(e) The board shall maintain a list of names and electronic and postal mailing addresses of persons who request notification of meetings and shall [~~mail~~] transmit a copy of the notice to [~~such~~] the persons at their last recorded electronic mail address no later than the time the agenda is filed under subsection (b). If no electronic mail address is listed, then the copy of the notice shall be mailed to the persons at their last recorded postal mailing address no later than the time the agenda is filed under subsection (b)."

SECTION 6. Section 92-8, Hawaii Revised Statutes, is amended to read as follows:

"§92-8 Emergency meetings. (a) If a board finds that an imminent peril to the public health, safety, or welfare requires a meeting in less time than is provided for in section 92-7, the board may hold an emergency meeting provided that:

(1) The board states in writing the reasons for its findings;

(2) Two-thirds of all members to which the board is entitled agree that the findings are correct and an emergency exists;

(3) An emergency agenda and the findings are filed [~~with the office of the lieutenant governor or the appropriate county clerk's office, and in the board's office; and~~] at the locations specified for notices in section 92-7; and

(4) Persons requesting notification on a regular basis are contacted by [~~mail or~~] telephone or their requested method of notification as soon as practicable.

(b) If an unanticipated event requires a board to take action on a matter over which it has supervision, control, jurisdiction, or advisory power, within less time than is provided for in section 92-7 to notice and convene a meeting of the board, the board may hold an emergency meeting to deliberate and decide whether and how to act in response to the unanticipated event; provided that:

(1) The board states in writing the reasons for its finding that an unanticipated event has occurred and that an emergency meeting is necessary and the [~~attorney general~~] director of the office of information practices concurs that the conditions necessary for an emergency meeting under this subsection exist;

(2) Two-thirds of all members to which the board is entitled agree that the conditions necessary for an emergency meeting under this subsection exist;

(3) [The finding that an unanticipated event has occurred and that an emergency meeting is necessary and the agenda for the emergency meeting under this subsection are filed with the office of the lieutenant governor or the appropriate county clerk's office, and in the board's office;] An emergency agenda and the findings are filed at the locations specified for notices in section 92-7;

(4) Persons requesting notification on a regular basis are contacted by [~~mail or~~] telephone or their requested method of notification as soon as practicable; and

(5) The board limits its action to only that action which must be taken on or before the date that a meeting would have been held, had the board noticed the meeting pursuant to section 92-7.

(1) An event which members of the board did not have sufficient advance knowledge of or reasonably could not have known about from information published by the media or information generally available in the community;

(2) A deadline established by a legislative body[,]; a court[,]; or a federal, state, or county agency beyond the control of a board; or

(3) A consequence of an event for which reasonably informed and knowledgeable board members could not have taken all necessary action."

SECTION 7. Section 92-9, Hawaii Revised Statutes, is amended by amending subsections (b) and (c) to read as follows:

"(b) The minutes shall be public records and shall be available within thirty days after the meeting except where [~~such~~] the disclosure would be inconsistent with section 92-5; provided that minutes of executive meetings may be withheld so long as their publication would defeat the lawful purpose of the executive meeting, but no longer. Upon request, minutes that have become public record may be electronically mailed to the requester, or if the requester does not have an electronic mail address, then the minutes may be mailed to the requestor at the requestor's last recorded postal mailing address.

(c) All or any part of a meeting of a board may be recorded by any person in attendance by means of [~~a tape~~] an audio or video recorder [~~or any other means of sonic reproduction~~], except when a meeting is closed pursuant to section 92-4; provided the recording does not actively interfere with the conduct of the meeting."

SECTION 8. Section 92-21, Hawaii Revised Statutes, is amended to read as follows:

"§92-21 Copies of records; other costs and fees. (a) Except as otherwise provided by law, a copy of any government record, including any map, plan, diagram, photograph, photostat, or geographic information system digital data file, which is open to the inspection of the public, shall be furnished to any person applying for the same by the public officer having charge or control thereof upon the payment of the reasonable cost of reproducing [~~such~~] the copy.

(b) Except as provided in section 91-2.5, the cost of reproducing any government record, except geographic information system digital data, shall not be less than 5 cents per page, sheet, or fraction thereof.

(c) The cost of reproducing geographic information system digital data shall be in accordance with rules adopted by the agency having charge or control of that data. [~~Such~~] The reproduction cost shall include but shall not be limited to labor cost for search and actual time for reproducing, material cost, including electricity cost, equipment cost, [~~including~~] rental cost, cost for certification, and other related costs.

(d) All fees shall be paid [in] by the public officer receiving or collecting the same to the state director of finance, the county director of finance, or to the agency or department by which the officer is employed, as government realizations; provided that fees collected by the public utilities commission pursuant to this section shall be deposited in the public utilities commission special fund established under section 269-33.

(e) Notwithstanding any law to the contrary, the office of information practices may waive any fee to access a record if it determines that the public's interest is served by the waiver; provided that any cost borne by an agency for the waiver shall not unduly disrupt operations of that agency."

SECTION 9. Section 92F-15.5, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) [~~If the~~] Notwithstanding any other law to the contrary, if the office of information practices' decision is to disclose, the decision shall not be subject to appeal or any other judicial action to the circuit court by the agency. The office of information practices shall notify the person and the agency, and the agency shall make the record available. If the denial of access is upheld, in whole or in part, the office of information practices shall, in writing, notify the person of the decision, the reasons for the decision, and the right to bring a judicial action under section 92F-15(a)."

SECTION 10. Section 302A-1106, Hawaii Revised Statutes, is amended to read as follows:

"§302A-1106 Organization; quorum; meetings. [~~(a)~~] The board shall elect from its own membership a chairperson and a vice-chairperson. A majority of all members to which the board is entitled shall constitute a quorum to do business and the concurrence of a majority of all members to which the board is entitled shall be necessary to make any action of the board valid; provided that due notice shall have been given to all members of the board or a bona fide attempt shall have been made to give due notice to all members of the board to whom it was reasonably practicable to give due notice. Meetings shall be called and held, at the call of the chairperson or by a quorum, as often as may be necessary for the transaction of the department's business.

[~~(b) Chapter 92 notwithstanding,~~ from the convening of the legislature in regular session to adjournment sine die of each regular session, and during each special session of the legislature, the board may file any notice that specifies only legislation or legislation-related agenda items, no fewer than two calendar days before the meeting.]"

SECTION 11. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 12. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 13. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	1113
TWENTY-SIXTH LEGISLATURE, 2011
STATE OF HAWAII