STAND. COM. REP. NO. 145

Honolulu, Hawaii

RE:    S.B. No. 245

       S.D. 1

Honorable Ronald D. Kouchi

President of the Senate

Twenty-Ninth State Legislature

Regular Session of 2017

State of Hawaii

Sir:

     Your Committee on Judiciary and Labor, to which was referred S.B. No. 245 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:

     (1)  Require government 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;

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

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

     Your Committee received testimony in support of this measure from the Office of Information Practices, Hawaii Association for Justice, ‘Āina Haina Community Association, and one individual.  Your Committee received testimony in opposition to this measure from the Office of the Mayor, County of Maui; Department of the Corporation Counsel, City and County of Honolulu; and Department of the Corporation Counsel, County of Maui.  Your Committee received comments on this measure from the Department of Business, Economic Development, and Tourism.

     Your Committee finds that in Molfino v. Yuen, 134 Hawaii 181 (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 responds to the holding of Molfino by establishing a statutory requirement that government agencies exercise reasonable care in the maintenance of all government records under their control that are available for public inspection.

     Your Committee notes the concerns expressed in testimony regarding the adequacy of the $2,000 cap that the court may award for damages for breaching the duty of reasonable care and believes this issue merits further discussion.  Your Committee also notes that this measure would benefit from discussion as to the most appropriate chapter placement of the requirement within the Hawaii Revised Statutes.

     Your Committee has amended this measure by:

     (1)  Inserting an effective date of January 7, 2059, to encourage further discussion; and

     (2)  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. 245, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 245, 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