March 26, 2020 Letter to Governor Ige (PDF)

RE:      Suspension of Open Meetings and Public Records Law

Dear Governor Ige:

On March 16, you reversed decades of government transparency by suspending Hawaii’s open meetings and public records laws.  These laws serve a fundamental role even in emergencies.  Keeping the Hawai`i electorate in the dark about government decisions for two months or longer is unconscionable.  In crisis, we must reaffirm, not abandon our most basic democratic principles.  When government boldly declares that it will hide information and conceal decision-making, rumor, innuendo, and special interests thrive, while democracy withers.  

No other state has thoroughly gutted public access laws as Hawai`i has done.  Our response to COVID-19 must be proportionate to the threat.  Suspending the laws entirely was recklessly overbroad.  Government leaders must be willing to stand up to informed public scrutiny because when citizens know through public access laws that government is accountable, it reduces public anxiety about government decisions.  Thus, while limits tailored to this emergency are appropriate, blanket disregard for public rights of access only adds to the chaos.

On March 20, over 130 organizations signed an open statement asking that state leaders continue to respect the values of open meetings and public records.  “We encourage the custodians of information at all levels of government to take this opportunity to leverage technology to make governance more inclusive and more credible, not to suspend compliance with core accountability imperatives in the name of expediency.”  Every indication is that other jurisdictions have respected that call to action.  

Below are suggestions consistent with actions taken by other jurisdictions that are maintaining government transparency in a time of quarantine.  For the open meetings law, the three key components impacted by social distancing are notice, public observation, and public participation.  Please consider the following proposals:

  • Reinstate the open meetings law immediately
  • Discourage boards from meeting unless necessary to comply with a law or in furtherance of emergency activities; boards should not add to the communal stress on resources by holding unnecessary meetings
  • Any suspension of notice requirements should be limited to COVID-19 emergency response agenda items and provided to the extent practicable consistent with HRS § 92-8[1]
  • Suspend the in-person requirements of the law to permit boards to meet by any real-time form of telecommunication that permits public observation
  • Suspend the oral testimony requirements of the law to permit boards to accept testimony only in writing if real-time participation is not technologically feasible[2]

The public records law should be reinstated immediately.  The rules that govern record requests already provide flexibility for agencies to address other priorities.[3]  The two week deadline for an initial response may be extended two more weeks for an agency “to avoid an unreasonable interference with its other statutory duties and functions” or for a “natural disaster or other situation beyond the agency’s control.”  HAR §§ 2‑71‑13(c), ‑15(a).  And if response would be burdensome within the extended period, disclosure may occur in monthly batches to accommodate other priorities.  Id. § 2‑71‑15(b).

If you consider the existing rules inadequate for this emergency, please limit any suspension of the law to a reasonable extension of deadlines for responding to requests, rather than suspending the entire law.[4]

As a community, we all must work harder to preserve our way of life in a time of crisis and uncertainty.  We can and must be better to adapt to these changes.  No one can assume that COVID-19 will be a short-term emergency.  Hawai`i is not unique in dealing with the strain of this illness on society.

I welcome the opportunity to discuss these matters with you or your representative.  We are one community.  With everything else going on last week, suspension of the laws has had limited effect.  But if kept in place, the suspension will have lasting and irreparable impact.  We must find a path forward together; that is a core principle of our form of government and the heart of the public access laws.  Your administration is not alone in this crisis.  The Law Center is willing to devote resources to assist the State in exploring all available options to return a measure of normalcy here.

It is important to act quickly to reinstate the public access laws.


R. Brian Black

[1] HRS § 92‑8 addresses how to handle meetings when there is “imminent peril to the public health, safety, or welfare,” including modified public notice requirements.

[2] Most telecommunication resources permit the meeting host to control participants’ involvement in a conferenced meeting.  Thus, boards that choose to hold meetings during this period have the resources to ensure that real-time public participation is orderly and not disruptive to the overall meeting.

[3] Hawai`i agencies do not consistently respond in compliance with the administrative deadlines in any event.  For example, a recent national audit of various states found that only a third of agencies contacted in Hawai`i responded within the administrative deadlines.  A. Jay Wagner (Marquette University), Probing the People’s Right to Know:  A 10-State Audit of Freedom of Information Laws (Mar. 2020).

[4] Suspending the entire law also opens the door for government employees to intentionally leak confidential records without any criminal consequence.  See HRS § 92F‑17.  Obviously, a more careful assessment would be appropriate.