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Friday, November 13, 2020
OIP: Under Emergency Order, UIPA Still has Some Teeth
By Andrew Walden @ 9:03 PM :: 2848 Views :: Ethics, OHA

by Andrew Walden

Akamai readers may remember that the “Suspension Of Hawaii’s Open Government Laws is More Extreme Than Other States.” 

On May 5, 2020, Governor Ige reinstated some, but not all, open records rights under his “Seventh Supplementary Proclamation” -- which the Office of Information Practices followed up with: “OIP Policy Under Ige's Latest Emergency Order.”

How does this work out in practice?

On October 2, 2020 Hawai’i Free Press submitted an open records request to the Office of Hawaiian Affairs.  It is one we do annually for OHA’s check register.   

But this year, OHA ignored our request. 

Six weeks and one election later, we resubmitted our request to OHA and also submitted a request for assistance to OIP.

OIP responded November 12, 2020, by sending OHA the letter below.  Two hours later, OHA emailed us the check register, which we are currently processing and expect to post soon.  (UPDATE: Link to check register.)

Here is the main text of OIP’s letter.  It is a clear statement of where UIPA rights currently stand under Governor Ige’s Emergency Orders:

  *   *   *   *   *

… The Office of Information Practices (OIP) received an email from Mr. Andrew Walden, which included Mr. Walden's record request (copy enclosed) to the Office of Hawaiian Affairs (OHA) dated October 2. 2020 , for a copy of "[c]omplete check register for OHA for FY ending June 30. 2020." More than ten business days have passed since Mr. Walden made his record request and OIP is informed that he did not receive a response.

During the COVID-19 pandemic, Hawai’i’s Governor issued his Supplementary Proclamation on March 16,2020, which suspended the UIPA in its entirety. That suspension was modified on May 5, 2020, by the Governor's Seventh Supplementary Proclamation (SP7), which provided that the UIPA and chapters 71 and 72, Title 2, HAR, "are suspended to the extent they contain any deadlines for agencies, including deadlines for OIP, relating to requests for government records and/or complaints to OIP.'' SP7, Exhibit G. The partial suspension continued in subsequent proclamations including the one currently in effect, the Governor's Fourteenth Supplementary Proclamation, 1 (SP 14) as set out in its Exhibit F.

SP 14 Exhibit F states that, "[a]s resources permit, agencies are encouraged to respond to requests for government records (UIPA Requests).'' SPI4 Exhibit F requires that requests for government records not answered during the emergency relief period must be answered in a reasonable period of time when the suspension of laws is lifted. OHA has at most, ten business days from the date SP 14 expires, after November 30, 2020, to respond to the request. This means OHA should respond to the record request no later than December 14, 2020, unless SP 14 is extended or terminated by a separate proclamation.2

SP 14 Exhibit F also requires that agencies comply with several other mandates during the suspension of UIPA time limits. Of particular relevance here, SP14 Exhibit F states that agencies ··must acknowledge receipt of UIPA Requests. If a request is not acknowledged, the requester may ask OIP to verify that the agency received the UIPA Request.'' As such, please treat this letter as a request that you acknowledge Mr. Walden's record request of October 2, 2020, by communicating within five business days of the date of this letter directly with him in writing using the contact information provided by him.

Also of relevance here, SP 14 Exhibit F requires that agencies shall (1) retain UIPA requests and may not destroy requested records while a request is pending; and (2) as resources permit, in good faith, respond to UIPA requests for information that do not require redaction or substantial review of records without substantial delay.

In conclusion, OIP asks that OHA immediately send Mr. Walden an acknowledgment as required by SP14 Exhibit F within five business days of the date of this letter. OHA should also remember it is not absolved from responding to record requests received during the emergency relief period, and it should respond as its resources permit, but in any case, no later than December 14, 2020, unless SP14 is extended or terminated by a separate proclamation….

Footnotes:

1 The supplementary proclamations may be viewed on Governor lge's website at: https://Governor.Hawaii.gov/emergency-proclamations/.

2 Due to the suspension of UIPA deadlines, an agency is not in violation of section 92F-23, HRS, or chapter 2-71 HAR, if it fails to respond to record requests within ten business days.  However, it should keep in mind that its deadline to respond to all record requests received during the emergency proclamations will be at latest ten business days after suspension is lifted. OIP reminds agencies that SP10 Exhibit G requires agencies to respond to requests as they come in, as resources permit. Should an agency choose not to respond at all to record. requests received during the partial suspension, it may find itself in a difficult situation when the suspension is lifted and it has ten business days to respond to all the UIPA requests that have come in during the suspension period. It is unlikely that an agency could legitimately extend its time to respond to requests received during the suspension on the basis that the number of such requests would prevent it from fulfilling its regular duties if the agency had already had a month or longer to process those requests and the number of pending requests at the time the suspension was lifted was the result of the agency's own decision not to process UIPA requests it received during the suspension.

PDF: Full Letter

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