STAND. COM. REP. NO. 2255

Honolulu, Hawaii

RE:    S.B. No. 2294

       S.D. 1

Honorable Ronald D. Kouchi

President of the Senate

Twenty-Eighth State Legislature

Regular Session of 2016

State of Hawaii

Sir:

     Your Committee on Judiciary and Labor, to which was referred S.B. No. 2294 entitled:

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

begs leave to report as follows:

     The purpose and intent of this measure is to require agencies to exercise reasonable care in the maintenance of all government records under their control that are required to be made available for public inspection.

     Your Committee received testimony in support of this measure from the ‘Āina Haina Community Association.  Your Committee received testimony in opposition to this measure from the Office of Information Practices.

     Your Committee finds that in Molfino v. Yuen, Civ. No. 07-1-0378, 2014 (Haw. Sup. Ct. Nov. 13, 2014), the Supreme Court upheld a Circuit Court ruling that, absent a statutory requirement, a government agency does not have a duty of reasonable care with respect to maintaining government records for the purpose of public inspection.  This measure amends section 92F-18, Hawaii Revised Statutes (HRS), to create a statutory requirement that government agencies exercise reasonable care in maintaining those government records open to public inspection.

     Your Committee notes the concerns raised by the Office of Information Practices regarding the broad definition of a government record, liability issues when a government record is temporarily removed from its file, the standards in maintaining records, and the enforcement of this duty.

     Accordingly, your Committee has amended this measure by:

     (1)  Deleting section 2 and inserting the language suggested by the Office of Information Practices that proposed amendments to S.B. No. 140, H.D. 2 (Regular Session of 2015) to amend part V of chapter 92, HRS, to:

          (A)  Require each unit of government in the State and its political subdivisions to exercise reasonable care in the maintenance of all government records under its control that are required to be available for public inspection pursuant to chapter 92F, HRS;

          (B)  Create a rebuttable presumption that a unit of government in the State and its political subdivisions exercised reasonable care in its maintenance of its government records by adhering to a duly adopted records retention and destruction policy; and

          (C)  Establish damages for breaching a duty of exercising reasonable care in the maintenance of government records;

     (2)  Changing the effective date from July 1, 2016, to upon approval; and

     (3)  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. 2294, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 2294, S.D. 1, and be referred to your Committee on Ways and Means.

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

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GILBERT S.C. KEITH-AGARAN, Chair