THE SENATE

S.B. NO.

719

THIRTY-SECOND LEGISLATURE, 2023

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to the office of information practices.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. The legislature finds that the office of information practices has been given more responsibilities over the years and needs additional personnel to meet its increasing workload. The legislature further finds that the office of information practices would be able to more efficiently and effectively resolve disputes concerning the Uniform Information Practices Act (UIPA), chapter 92F, Hawaii Revised Statutes, and the sunshine law, part I of chapter 92, Hawaii Revised Statutes, if it had the discretion to provide written guidance in lieu of opinions in appropriate cases. While a formal opinion is sometimes necessary to obtain an agency's or board's compliance, or to hold it to the "palpably erroneous" standard of review upon appeal to a court, there are other times when the office need not undergo the time-consuming process for an opinion and can instead provide more timely written guidance to explain its reasons why it is inclined to conclude that an agency's or a board's actions did not violate the UIPA or sunshine law.

The purpose of this Act is to provide the office of information practices with the statutory discretion to decide whether to provide an opinion or written guidance to resolve a dispute under the UIPA or sunshine law, and funding for two new permanent positions.

SECTION 2. Section 92F-3, Hawaii Revised Statutes, is amended by adding three new definitions to be appropriately inserted and to read as follows:

""Guidance" means a written discussion of the major legal and factual issues raised by an inquiry, including the most likely resolution of a complaint made in the inquiry, if applicable, but does not rise to the level of an opinion.

"Opinion" means a written discussion of legal and factual issues raised by an inquiry, including the findings and conclusions reached by the director of the office of information practices regarding those issues, regardless of whether the inquiry alleges violations of this chapter or part I of chapter 92, or otherwise raises disputed issues of law or fact, or the inquiry seeks an advisory legal interpretation of this chapter or part I of chapter 92.

"Ruling" means a written opinion providing firm and final legal determination of all disputed issues raised by an inquiry alleging violations of this chapter or part I of chapter 92."

SECTION 3. 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] issue a ruling 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; provided further that if the office of information practices issues written guidance to a complainant concluding that an agency denial of access most likely will be upheld, including reasons for that decision, and informing the complainant of the right to bring a judicial action under section 92F-15(a), then no further action is required by the office of information practices;

(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 paragraphs (4) and (18) 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 disclosable records, as well as to provide for a waiver of fees when the public interest would be served;

(14) Shall adopt rules which 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 or part I of chapter 92 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[;] by issuing a ruling on whether a violation occurred; provided that if the office of information practices issues written guidance to a complainant concluding that a board most likely did not violate part I of chapter 92, and including reasons for that decision, and informing the complainant of the right to bring a judicial action under section 92-12(c), then no further action is required by the office of information practices;

(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 4. There is appropriated out of the general revenues of the State of Hawaii the sum of $185,000 or so much thereof as may be necessary for fiscal year 2023-2024 and the same sum or so much thereof as may be necessary for fiscal year 2024-2025 for two full-time equivalent (2.0 FTE) permanent positions, including one attorney and one legal assistant, to be placed within the office of information practices.

The sums appropriated shall be expended by the office of information practices for the purposes of this Act.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect on July 1, 2023.

 

INTRODUCED BY:

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Report Title:

Office of Information Practices; Guidance; Opinion; Ruling; Appropriation

 

Description:

Gives the Office of Information Practices the discretion to resolve disputes about open records or open meetings either through an opinion or, when the opinion would likely be in favor of the agency, through informal written guidance. Appropriates funding for the Office of Information Practices to hire two new full-time positions for a Legal Assistant and Attorney.

 

 

 

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