TWENTY-EIGHTH LEGISLATURE, 2015
STATE OF HAWAII
A BILL FOR AN ACT
relating to PUBLIC ACCESS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that access to information is critical to an informed engaged public and increases government transparency and accountability. However, access to public information is hindered by confusing request processes, high fees, and outdated practices.
The legislature also finds that several provisions of the laws relating to public agency meetings and records in chapter 92, Hawaii Revised Statutes, have not been amended for over forty years, and, as a result, have outdated technological references. Meanwhile, electronic posting of information has become common because it is easy, efficient, relatively inexpensive, and it increases public access to the information. Efforts are underway throughout state and county governments to reduce the use of hard-copy documents, improve public access to government records, and facilitate communication through technology.
The legislature further finds that board members must be held accountable for violations of chapter 92, Hawaii Revised Statutes, by making accountability measures available to the public including tolling the statute of limitations and awarding attorney's fees. A mandatory award of attorney's fees to a prevailing member of the public will ensure that the public will not be hindered by holding board members accountable.
The legislature finds that requesters frequently do not understand how an agency maintains its records and processes requests. Because of this, requesters are not able to tailor requests to minimize the burden on agencies and the expense to requesters. The agency is in the best position to identify the most efficient way to obtain information sought by a requester. The legislature also finds that fees were not intended to hinder public access or chill the exercise of First Amendment rights. However, fees have become an impediment to access public information that should be widely accessible.
The legislature further finds that these actions will provide more flexibility in how the public obtains information, enhance government transparency, accountability, and lead to a more engaged informed public.
The purpose of this Act is to:
(1) Update public meeting practices, including posting meeting notices and board minutes electronically, informing the public of notices electronically, and making public records that are available to the board also available to the public;
(2) Provide increased accountability measures to the public when holding board members accountable including mandatory award of attorney's fees and tolling the statute of limitations when a member of the public files a complaint to void a board action pursuant to section 92-1.5, Hawaii Revised Statutes;
(3) Require agency officials to assist public requests for information, when reasonable; and
(4) Waive fees for access to public records when in the public interest.
SECTION 2. Chapter 92, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§92- Board packet; filing. At the time that the agenda is filed and posted under section 92-7(b) or when the board packet is distributed to the board members, whichever occurs earlier, the board shall file the board packet in the board's office for public inspection and provide copies to persons requesting notification pursuant to section 92-7(e).
For purposes of this subsection, "board packet" means documents subject to disclosure under chapter 92F, or disclosable portions thereof, that are compiled by the board and distributed to the board members before a meeting for use at that meeting."
SECTION 3. Section 1-28.5, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) Notwithstanding any other statute, law, charter provision,
ordinance, or rule to the contrary, whenever a government agency is required to
give public notice or to publish notice, the notice shall be given [
(1) For statewide publication:
(A) In a daily or weekly publication of statewide circulation; or
(B) By publication in separate daily or weekly publications whose combined circulation is statewide; and
(C) By electronic or online publication on the designated central State of Hawaii website; and
(2) For county-wide publication[
by] By publication
in a daily or weekly publication in the affected county[ .]; and
(B) Electronic or online publication on the website of the affected county.
Additional supplemental notice may also be given through Hawaii FYI, the State's interactive computer system."
2. By amending subsection (c) to read:
"(c) Whenever a public
notice is published [
in a newspaper or other publication] as described
in subsection (a), proof of the publication shall be [ the affidavit of the]:
(1) The affidavit of the printer,
publisher, designated agent of the publishing group, principal clerk, or
business manager of the newspaper or other publication [
or of the designated
agent of the group that published the notice.]; or
(2) Provided by the designated representative of the government agency operating the designated central State of Hawaii website or the website of the affected county, as applicable; provided that if the notice is published on the designated central State of Hawaii website or the website of the affected county, the public notice shall include information or links to other locations of the electronic or online notice."
SECTION 4. Section 92-7, Hawaii Revised Statutes, is amended to read as follows:
Notice. (a) The board shall give written and electronic public
notice of any regular, special, or rescheduled meeting, or any executive
meeting when anticipated in advance. The notice shall include an agenda [
that lists all of the items to be considered at the forthcoming meeting,
the date, time, and place of the meeting, and in the case of an executive
meeting the purpose shall be stated. If an item to be considered is the
proposed adoption, amendment, or repeal of administrative rules, an agenda
meets the requirements for public notice pursuant to this section if it
contains a statement on the topic of the proposed rules or a general
description of the subjects involved, as described in section 91-3(a)(1)(A),
and a statement of when and where the proposed rules may be viewed in person
and on the Internet as provided in section 91-2.6. The means specified by this
section shall be the only means required for giving notice under this part
notwithstanding any law to the contrary.
The] At least six calendar days before the meeting, the board
file] File the notice in
the office of the lieutenant governor or the appropriate county clerk's office[ ,
(2) File the notice in the board's
office for public inspection[
, at least six calendar days before the
(3) Publicly post the notice on the board's website or, if the board does not have a website, on a designated central State of Hawaii website.
The notice shall also be posted at the site of the meeting whenever feasible.
If the written public notice is filed in the office of the lieutenant governor
or the appropriate county clerk's office or electronically posted on the
appropriate internet website less than six calendar days before the
meeting, the lieutenant governor or the appropriate county clerk shall
immediately notify the chairperson of the board, or the director of the
department within which the board is established or placed, of the [
late filing or posting of the meeting notice. [ The] If
a meeting notice is filed or posted late, the meeting shall be canceled as
a matter of law, and the chairperson or the director shall ensure that a
notice canceling the meeting is posted in the board's office, and whenever
feasible, at the [ place] location of the meeting, and no
meeting shall be held.
No board shall change the agenda, once filed[
,] and posted, by
adding items thereto without a two-thirds recorded vote of all members to which
the board is entitled; provided that no item shall be added to the agenda if it
is of reasonably major importance and action thereon by the board will affect a
significant number of persons. Items of reasonably major importance not
decided at a scheduled meeting shall be considered only at a meeting continued
to a reasonable day and time.
The board shall maintain a list of names and [
information of persons who request written or electronic notification
of meetings and shall provide [ such]
these persons at their last recorded mailing or electronic mailing
address [ no later than the time the agenda is filed under subsection (b).]
at least six calendar days before the meeting."
SECTION 5. Section 92-8, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:
"(a) If a board finds that an imminent peril to the public health, safety, or welfare requires a meeting in less time than is provided for in section 92-7, the board may hold an emergency meeting; provided that:
(1) The board states in writing the reasons for its findings;
(2) Two-thirds of all members to which the board is entitled agree that the findings are correct and an emergency exists;
(3) An emergency agenda and the findings are filed [
the office of the lieutenant governor or the appropriate county clerk's office,
and in the board's office;] and posted as provided in section 92-7(b);
(4) Persons requesting notification on a regular
basis are contacted [
by mail or telephone] as soon as practicable.
(b) If an unanticipated event requires a board to take action on a matter over which it has supervision, control, jurisdiction, or advisory power, within less time than is provided for in section 92-7 to notice and convene a meeting of the board, the board may hold an emergency meeting to deliberate and decide whether and how to act in response to the unanticipated event; provided that:
(1) The board states in writing the reasons for its finding that an unanticipated event has occurred and that an emergency meeting is necessary and the attorney general concurs that the conditions necessary for an emergency meeting under this subsection exist;
(2) Two-thirds of all members to which the board is entitled agree that the conditions necessary for an emergency meeting under this subsection exist;
(3) The finding that an unanticipated event has
occurred and that an emergency meeting is necessary and the agenda for the
emergency meeting under this subsection are filed [
with the office of the
lieutenant governor or the appropriate county clerk's office, and in the
board's office;] and posted as provided in section 92-7(b);
(4) Persons requesting notification on a regular
basis are contacted [
by mail or telephone] as soon as practicable; and
(5) The board limits its action to only that action which must be taken on or before the date that a meeting would have been held, had the board noticed the meeting pursuant to section 92-7."
SECTION 6. Section 92-9, Hawaii Revised Statutes, is amended by amending subsections (b) and (c) to read as follows:
The] Within thirty days after the meeting, the minutes, in
whatever form and regardless whether approved by the board, shall be public
records and shall be [ available within thirty days after the meeting] publicly
posted on the board's website or, if the board does not have a website, a
designated central State of Hawaii website, except where such disclosure
would be inconsistent with section 92-5; provided that minutes of executive
meetings may be withheld so long as their publication would defeat the lawful
purpose of the executive meeting, but no longer.
All or any part of a meeting of a board may be recorded by any person in
attendance by [
means of a tape recorder or] any [ other] means of [ sonic]
reproduction, except when a meeting is closed pursuant to section 92-4;
provided the recording does not actively interfere with the conduct of the
SECTION 7. Section 92-11, Hawaii Revised Statutes, is amended to read as follows:
"§92-11 Voidability. (a) Any final action taken in violation of sections 92-3 and 92-7 may be voidable upon proof of violation.
(b) A suit to void any final action shall be commenced within [
(1) Ninety days of the final action[
(2) Ten days after a final decision of the office of information practices, regarding a complaint filed pursuant to section 92-1.5.
(c) When the office of information practices receives a complaint that may void a final action of a board, it shall give precedence to the complaint and expedite the final decision regarding the complaint, to the extent practicable."
SECTION 8. Section 92-12, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:
Any person may commence a suit in the circuit court of the circuit in which a
prohibited act occurs for the purpose of requiring compliance with or
preventing violations of this part or to determine the applicability of this
part to discussions or decisions of the public body. [
The] If the
complainant prevails in an action brought under this section, the court [ may
order payment of] shall assess against the board reasonable attorney's fees and [ costs to the prevailing
party in a suit brought under this section.] all other expenses
reasonably incurred in the litigation."
SECTION 9. Section 92F-11, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) Except as provided in section 92F-13, each agency, upon request by any person, shall make government records available for inspection and copying during regular business hours. To assist a person making a request, the agency shall, when reasonable under the circumstances:
(1) Assist the person to identify records that are responsive to the request or the purpose of the request, if stated;
(2) Describe the medium in which the records are available and their physical location; and
(3) Provide suggestions for overcoming any practical basis for denying access to the records requested."
SECTION 10. Section 92F-42, Hawaii Revised Statutes, is amended to read as follows:
"§92F-42 Powers and duties of the office of information practices. The director of the office of information practices:
(1) Shall, upon request, review and rule on an agency denial of access to information or records, or an agency's granting of access; provided that any review by the office of information practices shall not be a contested case under chapter 91 and shall be optional and without prejudice to rights of judicial enforcement available under this chapter;
(2) Upon request by an agency, shall provide and make public advisory guidelines, opinions, or other information concerning that agency's functions and responsibilities;
(3) Upon request by any person, may provide advisory opinions or other information regarding that person's rights and the functions and responsibilities of agencies under this chapter;
(4) May conduct inquiries regarding compliance by an agency and investigate possible violations by any agency;
(5) May examine the records of any agency for the purpose of paragraph (4) and seek to enforce that power in the courts of this State;
(6) May recommend disciplinary action to appropriate officers of an agency;
(7) Shall report annually to the governor and the state legislature on the activities and findings of the office of information practices, including recommendations for legislative changes;
(8) Shall receive complaints from and actively solicit the comments of the public regarding the implementation of this chapter;
(9) Shall review the official acts, records, policies, and procedures of each agency;
(10) Shall assist agencies in complying with the provisions of this chapter;
(11) Shall inform the public of the following rights of an individual and the procedures for exercising them:
(A) The right of access to records pertaining to the individual;
(B) The right to obtain a copy of records pertaining to the individual;
(C) The right to know the purposes for which records pertaining to the individual are kept;
(D) The right to be informed of the uses and disclosures of records pertaining to the individual;
(E) The right to correct or amend records pertaining to the individual; and
(F) The individual's right to place a statement in a record pertaining to that individual;
(12) Shall adopt rules that set forth an administrative appeals structure which provides for:
(A) Agency procedures for processing records requests;
(B) A direct appeal from the division maintaining the record; and
(C) Time limits for action by agencies;
(13) Shall adopt rules that set forth the fees and
other charges that may be imposed for searching, reviewing, or segregating
, as well as to provide for a waiver of fees];
provided that fees shall be waived when the public interest would be
(14) Shall adopt rules [
which] that set
forth uniform standards for the records collection practices of agencies;
(15) Shall adopt rules that set forth uniform standards for disclosure of records for research purposes;
(16) Shall have standing to appear in cases where the provisions of this chapter are called into question;
(17) Shall adopt, amend, or repeal rules pursuant to chapter 91 necessary for the purposes of this chapter; and
(18) Shall take action to oversee compliance with part I of chapter 92 by all state and county boards including:
(A) Receiving and resolving complaints;
(B) Advising all government boards and the public about compliance with chapter 92; and
(C) Reporting each year to the legislature on all complaints received pursuant to section 92-1.5."
SECTION 10. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 11. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 12. This Act shall take effect upon its approval.
Public Access to Information; Public Records; Board Meetings; OIP
Requires notice to be posted on the appropriate internet website. Allows notice to be sent electronically to persons who request notification. Provides for award of attorney's fees if a complainant prevails in an action pursuant to section 92-12, HRS. Requires agency officials to assist persons making requests for records. Waives fees for access to public records, when in the public interest.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.