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Friday, November 18, 2011
Court Ruling on Judicial Secrecy an Embarrassment to Abercrombie’s Neutered OIP
By Selected News Articles @ 10:49 PM :: 5219 Views :: Energy, Environment

On March 4, Cathy Takase, the Acting Director of OIP was let go by the Abercrombie Administration. Takase had authored a February, 2011 opinion mandating release of the names of Judicial nominees. Takase was then blocked from returning to her previous civil service position by Abercrombie’s choice to appoint a replacement to fill that position--a move which many observers described as “retaliation.”

Here is a look at the subsequent role played by the OIP in the current dispute over the release of the names of Judicial Nominees:

Courthouse News: OIP Defended Abercrombie Decision

The Office of Information Practices defended Abercrombie's decision, finding that materials were exempt because of "the potential for injection of undue influence in or politicizing of a selection process carefully established by the Constitution. [...] The frustration upon which that opinion is based would end once a nominee is confirmed by the Senate. Until that point, the same basis for frustration would exist because, if the Senate chose not to confirm a nominee appointed by the Governor, another nominee would then be selected from the list."

Citing a "backlog and other priorities" and "limited resources," an OIP official told the Star-Advertiser's managing editor in June that it could not render more than an opinion letter on the matter.

read … Courthouse News

CB: OIP Should Spare us the Sound of its Back-Patting

But perhaps in the interest of transparency the office might want to have acknowledged that its previous director was fired over this very issue, after she issued an opinion the governor didn't like.

Instead it makes it seem the world is working just as it should, with the new director wisely avoiding taking a stand against the governor by refusing to take a position on the issue.

The problem here: The OIP has a mission. (Just ask the people who were involved in its founding.) It needed to stand up to the governor.

To say the courts are the best way to resolve such disputes is to negate the very role of the OIP. Instead, the director seemed to be making an excuse for its silence, using the typical rhetoric of the beleaguered bureaucrat that staff is consumed with equally pressing matters.

But what could be as important as standing up on principle to the most powerful elected official in the state?

If the OIP isn't going to stand up and be counted, it might at least spare us the sound of its own back-patting.

read … OIP

Circuit Court Says Governor Must Release Judicial Nominee Names

Statement from Office of Information Practices November 17, 2011

Circuit Court Judge Karl Sakamoto orally ruled on November 14, 2011, that the Uniform Information Practices Act (“UIPA”) requires Governor Neil Abercrombie to disclose the names of the judicial nominees who were not selected for appointment to the Hawaii Supreme Court. Until Judge Sakamoto’s written decision is filed, the Attorney General has not decided whether it will appeal the ruling.
Although Judge Sakamoto’s rationale is not yet available, it appears that his reported conclusion is consistent with OIP’s conclusion in
Opinion No. 03-03. In that 2003 opinion, OIP had concluded that the UIPA did not require the Governor to disclose the list of nominees prior to Senate confirmation because the judicial appointment process could be frustrated by political maneuvering and manipulation, but stated in footnote 9 “that the ‘frustration’ exception no longer applies to a List of Nominees maintained by the appointing authority after Senate confirmation” (emphasis added) because “there is no conceivable scenario in which disclosure [at that time] would frustrate the appointing authority’s ability to make an appointment.”

Because this issue was addressed in an existing opinion, OIP declined media requests to divert its small staff resources to render another advisory opinion on the same issue that would ultimately be appealed and subjected to de novo judicial review. Instead, as OIP recommended, the Honolulu Star-Advertiser exercised its right to obtain expedited judicial review of the denial of its request for the judicial nominee list.

Rather than being tied up in one case that should be decided by the courts, OIP has been efficiently using its limited resources to address matters of equal importance to other members of the public and government agencies and has been creating new, proactive materials, such as continuing legal education courses, on-line video training, and agenda guidelines and workshops.




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