STAND. COM. REP. NO. 2457

Honolulu, Hawaii

RE:    S.B. No. 2858

       S.D. 1

Honorable Shan S. Tsutsui

President of the Senate

Twenty-Sixth State Legislature

Regular Session of 2012

State of Hawaii

Sir:

     Your Committee on Judiciary and Labor, to which was referred S.B. No. 2858 entitled:

"A BILL FOR AN ACT RELATING TO OPEN GOVERNMENT,"

begs leave to report as follows:

     The purpose and intent of this measure is to:

     (1)  Establish a process for a state agency to seek judicial review by a circuit court of a decision rendered by the Office of Information Practices that directs the agency to disclose a requested record under the Uniform Information Practices Act or prohibits disclosure under the Sunshine Law;

     (2)  Require a circuit court to consider the opinions and rulings of the Office of Information Practices as precedent unless found to be palpably erroneous; and

     (3)  Specify that the opinion or ruling upholding the agency's denial of access to the requestor shall be reviewed de novo.

     Your Committee received testimony in support of this measure from the Office of the Governor; the Department of Public Safety; the Department of Human Resources Development; the Department of Commerce and Consumer Affairs; the Department of Taxation; the Department of Land and Natural Resources; the Office of Information Practices; the Board of Education; the Executive Office on Aging; the Hawaii Public Housing Authority; the Office of Language Access; the Hawaii Community Development Authority; the League of Women Voters of Hawaii; the Hawaii Employers' Mutual Insurance Company, Inc.; and one private individual.  Testimony in opposition to this measure was submitted by three Council Members of the County Council of Maui and one private individual.

     Your Committee finds that the Uniform Information Practices Act allows members of the public whose record requests are denied by a government agency to have the Office of Information Practices review the agency's denial.  If the Office upholds the agency's decision to deny the record request, the requestor may bring an action in circuit court for a de novo review of that decision.  However, the Uniform Information Practices Act does not provide a similar process for a government agency to file an action in circuit court to appeal an adverse decision rendered by the Office of Information Practices.  As such, this measure establishes a uniform process for a state agency to seek judicial review of a decision rendered by the Office of Information Practices that directs the agency to disclose a requested record.

     Your Committee recognizes the concerns that this measure lacks a reasonable time limit for an agency to file a complaint in circuit court to appeal an adverse decision.  The Office of Information Practices suggested a time limit of thirty days based on the time period permitted for appeals of administrative and judicial decisions.

     As such, your Committee has amended this measure by:

     (1)  Requiring that an agency has thirty days from the date of the adverse decision to file a complaint in circuit court to initiate a special proceeding for judicial review;

     (2)  Inserting a savings clause;

     (3)  Inserting an effective date of July 1, 2050, to ensure further discussion; and

     (4)  Making technical, nonsubstantive amendments for the purposes of clarity and consistency.

     As affirmed by the record of votes of the members of your Committee on Judiciary and Labor that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 2858, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 2858, S.D. 1, and be placed on the calendar for Third Reading.

Respectfully submitted on behalf of the members of the Committee on Judiciary and Labor,

____________________________

CLAYTON HEE, Chair