STAND. COM. REP. NO. 618

Honolulu, Hawaii

RE:    S.B. No. 478

       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. 478 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 allow a member of a board to provide other members of the board any government records for which disclosure is required by section 92F-12, Hawaii Revised Statutes, provided that no commitment relating to a vote on the matter is made or sought and no additional discussion other than a statement describing the record and the issue related to the government record is included in the transmittal.

     Your Committee received testimony in support of this measure from the County Council of the County of Maui.  Your Committee received testimony in opposition to this measure from the Office of Information Practices and League of Women Voters of Hawaii.  Your Committee received comments on this measure from The Civil Beat Law Center for the Public Interest and Common Cause Hawaii.

     Your Committee finds that the Hawaii Supreme Court held in Kanahele v. Maui County Council, 130 Haw. 228 (2013), that memoranda or transmittals circulated among members of a public board subject to the Sunshine Law were not permitted interactions under section 92-2.5, Hawaii Revised Statutes (HRS).  As a result, public board members are prevented from transmitting government records to each other related to board business.  This measure includes such transmittals as a permitted interaction between public board members as long as the transmittals do not include a commitment to vote on a matter to be considered by the board or request for a commitment and no additional discussion other than a statement describing the record and the issue related to the government record is included in the transmittal.

     Your Committee notes the concerns raised in written testimony submitted by the Office of Information Practices that the scope of government records that are allowed to be circulated may be too broad, and suggests limiting the scope of applicability to include government records under section 92F-12(a), HRS.  Your Committee further notes the written comments submitted by The Civil Beat Law Center for the Public Interest that the scope of the government records that are allowed to be circulated between board members should be expanded to include all government records that are open to public inspection, provided that appropriate protections are in place for public access to monitor board communications.

     Accordingly, your Committee has amended this measure by:

     (1)  Adopting language suggested by The Civil Beat Law Center for the Public Interest that:

          (A)  Clarifies that the government records that may be provided by a member of a board to other members of the board are government records that are open to public inspection, rather than subject to section 92F-12, Hawaii Revised Statutes;

          (B)  Requires that the board member not express a position relating to a matter of official board business in the government record or transmittal, except for a neutral statement in the transmittal;

          (C)  Upon providing the government record to other members of the board, requires the transmittal and government record to be filed in the board's office; and

          (D)  Clarifies that these requirements regarding the circulation of a government record from a board member to other members of the board apply only when the board's last notice identifies where the members of the public may obtain copies of the government record in person;

     (2)  Inserting an effective date of January 7, 2059, to encourage further discussion; 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. 478, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 478, 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,

________________________________

GILBERT S.C. KEITH-AGARAN, Chair