March 30, 2020
By Timothy Sandefur
As governors nationwide issue emergency orders intending to protect the public from the spread of coronavirus, it’s more important than ever that Americans know what their public officials are doing. Yet Hawaii Governor David Ige has chosen to go the opposite way. In an order issued last week, Ige suspended enforcement of two state laws that require government officials to hold their meetings in public and provide the public with records of the things they do.
The order temporarily nullifies several state laws, but these two transparency measures in particular—the Uniform Information Practices Act (UIPA) and the Sunshine Law—raise special concerns. The UIPA is Hawaii’s version of the Freedom of Information Act, and it requires the government to turn over records relating to everything from environmental tests to government contracting to information about who’s participating in state loan programs. And the Sunshine Law requires meetings by “all boards” in the state to be “open to the public” and requires these officials to “afford all interested persons an opportunity to submit data, views, or arguments, in writing, on any agenda item.”
Both laws already contain exceptions for emergencies. The UIPA, for instance, does not require disclosure of records that “by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function” (which is a pretty broad exception, when you think about it) and the Sunshine Law lets officials close meetings that involve “sensitive matters related to public safety or security.” But instead of invoking these existing exceptions, Ige’s order entirely suspends these two critical protections for public oversight.
The order does ask government agencies to “consider” informing the public of their meetings, live-streaming meetings, and allowing written comments from citizens, but it doesn’t require that. As a result, it essentially nullifies crucial state laws that are supposed to ensure citizen oversight over government’s actions.
This is a startlingly wrongheaded move. Times of crisis are precisely when public oversight and other forms of checks and balances are most essential—to prevent elected officials or unelected bureaucrats from making decisions in secret, or without the information they need to preserve individual rights and the public’s safety.
Since the curtain of government secrecy went down, Hawaii government officials have been making decisions in the dark. As Honolulu Civil Beat notes, “On March 19, a panel of state senators held a meeting behind closed doors to hear how the state planned to quarantine visitors to the islands to contain the spread of the virus. While those meetings are now being broadcast by Olelo and online, no public comment is allowed.” The state has also removed testing data from its websites, and barred reporters from asking questions at press conferences.
None of this is necessary. The Civil Beat Law Center for the Public Interest explained in a letter they sent the Governor Thursday that while it makes sense to limit attendance at public gatherings, there are ways to do that while preserving the important values of public oversight. They urge Governor Ige to reinstate the open meeting laws, follow, where necessary, the exceptions those laws already contain, postpone matters that aren’t crucial right now, and allow people to submit written comments on government agenda items by email. Limiting public participation to some degree might be warranted—but keeping the public out entirely is likely to reduce the information government officials get at a time when they need more information, and to hinder the public’s ability to know what the government is doing to them and why.
These are extraordinary times, but ordinary principles still hold—particularly the democratic principles that the people deserve to know what their elected and unelected officials are doing—and to participate where appropriate, in helping provide government the information it needs, and to protect their own rights.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.