Bills affecting opening meetings

and records submitted to 2004 Legislature

DEAD:

 

OIP opinion on meeting agendas

 

October 27, 2003

 

 

VIA FACSIMILE (808) 956-2109

Ruth I. Tsujimura, Esq.

Associate Vice President for Legal Affairs

and University Deputy General Counsel

Office of Vice President for Legal Affairs

and University General Counsel

University of Hawaii

2515 Dole Street, Law 203

Honolulu, Hawaii 96822

Re: Board of Regents’ Meeting Agendas

RFO (03-038)

Dear Ms. Tsujimura:

During our telephone conversation of October 13, 2003, we briefly discussed the request from the Honorable Les Ihara, Jr. that this office review (1) the public notice of a number of meetings of the Board of Regents, University of Hawaii ("Board") and its committees that took place on July 10, 2003, and (2) an agenda for the Board’s meeting on September 5, 2003. I understood that you would discuss my concerns about the notice and the agenda with the person or persons responsible for preparing the notices and agendas for the Board. I also understood that either you or somebody else would contact me to discuss the matter further. Because I have not heard from you or anybody else regarding this matter, I thought that it might be helpful to provide you with my comments in writing so that they may be considered before the Board’s next meeting.

A. Notice of Meetings

The Notice of Meetings lists meetings of the Board, the Board’s Committee on Personnel and Legal Affairs, and the Board’s Committee on Finance and Facilities. The notice indicates that all of the meetings are to be held in executive session. The notice does not announce any meeting open to the public. Senator Ihara questioned whether the notice should indicate, for instance, that the Committee on Personnel and Legal Affairs will conduct a meeting on July 10 at 10:00 a.m., open to the public, with the executive session noted on the agenda for that meeting.

Section 92-4, Hawaii Revised Statutes ("HRS"), sets forth the procedure for convening an executive meeting. Specifically, the statute provides:

A board may hold an executive meeting closed to the public upon an affirmative vote, taken at an open meeting, of two-thirds of the members present; provided the affirmative vote constitutes a majority of the members to which the board is entitled. A meeting closed to the public shall be limited to matters exempted by section 92-5. The reason for holding such a meeting shall be publicly announced and the vote of each member on the question of holding a meeting closed to the public shall be recorded, and entered into the minutes of the meeting.

Haw. Rev. Stat. § 92-4 (1993) (emphasis added).

Based upon the unambiguous language of the statute, it is our opinion that the Board and its committees are required to convene a public meeting prior to convening an executive meeting. In other words, even where the board intends to discuss only executive meeting topics, the notice of the Board’s meeting must indicate that the Board will convene a meeting to which the public is invited, with the agenda for the meeting indicating that the board will meet in an executive session. We note that the statute also requires that two-thirds of the members present vote at the public meeting to convene the executive meeting and that the reasons for convening an executive meeting be announced during the public meeting. The same advice and procedures should be followed by committees of the Board.

Senator Ihara also raised an issue about the description of the purpose of the executive meetings contained in the Notice of Meetings. We have advised boards that the statute requires the agenda for an executive meeting to state with reasonable specificity the subject to be discussed and the statutory basis for closing the meeting to the public. By reasonable specificity, we mean that the agenda should provide as much description of what the board intends to discuss in the executive meeting as reasonably possible without compromising the purpose of closing the meeting to the public. For instance, if a board is meeting in executive session to discuss with the board’s attorney a proposed settlement of a lawsuit, we have suggested that the agenda identify the caption and civil number of the lawsuit, assuming that such disclosure would not defeat the purpose of the executive meeting, and note that the executive meeting is to permit the board to consult with its attorney regarding its powers, duties, privileges, immunities and liabilities, citing section 92-5(a)(4), HRS.

In reviewing the Notice of Meetings, we do not have sufficient information to determine whether the Board and its committees could have provided a reasonable description of the subjects of the respective executive meetings without compromising the purpose of the executive meetings. We suggest that the Board and its committees consider our comments when preparing their respective agendas in the future.

B. Agenda For The Board’s September 5 Meeting

Senator Ihara questioned whether items III.A-6, III.B-1 and V. listed on the agenda for the Board’s September 5, 2003 meeting were appropriately described. In reviewing the agenda, we believe that Senator Ihara’s comments are applicable to agenda item IV. as well.

All boards subject to the Sunshine Law are required to file, with their notice, an agenda listing "all of the items to be considered at the forthcoming meeting[.]" Haw. Rev. Stat. § 92-7(a) (Supp. 2002). The purpose of listing the items to be considered by the board is to provide sufficient information to the public about the business that the board intends to conduct so that the public can determine whether to participate in the meeting. General descriptions such as "Gifts, Grants, and Contracts," "Appointments, Changes in Appointments …" and "Oral Report of Executive Officer," however, provide very little information from which the public can make that determination and, in our opinion, do not comply with the requirements of the statute.

Similarly, an agenda item meant to be a "catch-all" or to preserve the board’s ability to consider a matter, unknown at the time that the notice is filed, is improper. Given the purpose of the agenda, i.e., to provide the public with a reasonably specific description of what the board intends to consider, agenda items

included for such purposes are contrary to the intent and the spirit of the statute. If, less than six days prior to the meeting, the Board decides to consider a matter that it did not list on the agenda, the Board cannot do so unless the agenda is amended at the meeting in accordance with section 92-7(d), HRS.

With respect to the agenda provided to us by Senator Ihara, we believe that it should have specifically identified the gifts, the grants and the contracts that the Board intended to discuss. Similarly, the agenda item B-1 should have specified the appointments, the changes in appointments, the leave of absences, etc. We further do not believe that agenda items IV.a. and V. should have been included in the agenda. Both agenda items appear to be included for the purpose of considering matters that were either unknown or had not been specifically identified at the time that the notice was filed. If the board knew what it intended to consider relating to agenda items IV.a. or V., as with the other agenda items discussed above, the board was required to describe the matters with reasonable specificity.

We hope that the above is helpful to you and the Board. Should you or the Board have any questions regarding the above or other issues relating to the Sunshine Law, please do not hesitate to contact us. We also are willing to provide the Board and others at the University with training on the Sunshine Law and/or Uniform Information Practices Act (Modified), chapter 92F, HRS. Please contact us if you are interested in the training.

By copy of this letter to Senator Ihara, we are advising him that we consider his inquiry regarding this matter to be concluded and, therefore, are closing our file relating to this matter. If he has any additional concerns regarding this matter, he is welcome to address those issues with us.

Very truly yours,

 

 

Leslie H. Kondo

Director

LHK:cy

cc: The Honorable Les Ihara, Jr. (via facsimile)

Patricia Y. Lee, Chair (via facsimile)

Board of Regents, University of Hawaii

Open meeting opinions

When do two Honolulu City Councilmen showing up at a closed-door session held by another set of government officials constitute an official meeting subject to the state Sunshine Law?
It depends on whom you talk to.

The state Office of Information Practices said their attendance at the meeting wasn't covered by the Sunshine Law.

The state Attorney General's Office disagreed and said it was covered by the open meetings law.
The issue centered on two City Councilmen attending a transportation brainstorming session in March with the newly elected governor and other government officials.

There were complaints about whether the two councilmen could meet behind closed doors even though the meeting was not directly related to their duties.

Council Chairman Gary Okino stayed and Councilman Nestor Garcia, Council Transportation Committee chairman, decided to leave because of the objections.

Deputy Attorney General Charleen Aina based her opinion on the chance meeting that forbids board members from using social occasions to circumvent open meeting restrictions thqt deliberations toward decisions be done in public. Also, she said the law allows the Council to assign two or more Council members to investigate matters but the Council had not done so.

Office of Information Practices Director Leslie Kondo wrote the Council members telling them that one of them didn't have to leave. Kondo said the law permits two councilmen to discuss matters in private as long as no commitment to vote is made or sought. He said the law also permits the Council to assign less than a quorum to investigate matters.

"The issue has come up in the context of multiple members of a board attending the same seminar, legislative hearings, meetings of private organizations and meetings called by other county, state or federal government officials, agencies and boards," Aina said.

But Kondo said: "Unfortunately, there appears to be grave misunderstandings of the Sunshine Law, and more specifically, the circumstances in which council members can discuss matters privately or attend social functions."

4/15/03

This is from the Healthcare Association of Hawaii about federal medical privacy rules:

The only information that the hospital is allowed to share with a reporter
is a one-word condition report. To disclose even that information, HIPAA
requires that:

The reporter must know the patient's name
And the patient must have agreed to be included in the facility directory

For the hospital to release any information about a patient beyond a
one-word condition report, the patient must have a separate agreement with
the hospital.

If patients or families want to talk to the media directly, they are free to
do so. If the interview is to happen at the medical facility, the family and
reporter must first obtain clearance from the public relations
representative at the medical facility

 

U.S. SENATOR PATRICK LEAHY

CONTACT: Office of Senator Leahy, 202-224-4242

VERMONT

Senators Offer Fix For FOIA Exemption
In The Homeland Security Act

WASHINGTON (Wed., March 12) – Senators Patrick Leahy (D-Vt.), Carl Levin (D-Mich.), James Jeffords (I-Vt.), Joseph Lieberman (D-Conn.), and Robert Byrd (D-W.V.) Wednesday introduced the Restore Freedom of Information Act (Restore FOIA), four days before Freedom of Information Day.  The Restore FOIA bill would replace the broad FOIA exemption for “critical infrastructure information” included in the charter for the new Department of Homeland Security, enacted last November.  The Restore FOIA bill would protect Americans’ “right to know” while simultaneously contributing to the security of the nation’s critical infrastructure.

The FOIA exemption enacted in the Homeland Security Act applies to information about facilities — such as privately operated power plants, bridges, dams, ports or chemical plants — that might be targets of a terrorist attack.  The exemption shields from FOIA almost any voluntarily submitted document stamped by the facility owner as “critical infrastructure” and submitted to the Department of Homeland Security (DHS).  This is true no matter how tangential the content of that document may be to the actual security of a facility.  The law effectively allows companies to hide information about public health and safety from the public simply by voluntarily submitting it to DHS.  Firms’ disclosures to DHS neither obligate the firms to address the vulnerability nor require DHS to fix the problems.  The law also shields such information from use in civil litigation, criminalizes otherwise legitimate whistleblower activity by DHS employees, and preempts state or local disclosure laws.  Leahy, long a champion of FOIA and of the public’s right to know, has said the exemption adds up to the single most destructive blow to FOIA in its 36-year history.

The Leahy-Levin-Jeffords-Lieberman-Byrd bill embodies the compromise that Leahy, Levin and others reached with the White House during the Senate’s earlier work on the homeland security bill.  Last November, this bipartisan compromise was stripped out of the underlying bill and House language was enacted.  The new Restore FOIA bill would:

ˇ        Limit the FOIA exemption to relevant “records” submitted by private entities, so that only those records that actually pertain to critical infrastructure safety are protected.  “Records” is the standard category referred to in FOIA.  This corrects the free pass given to industry by the Homeland Security Act for any information labeled “critical infrastructure.”

ˇ        Not limit the use of such information by the government, except to prohibit disclosure where such information is appropriately exempted under FOIA.

ˇ        Protect the actions of legitimate whistleblowers, rather than criminalizing their acts.

ˇ        Not forbid use of such information in civil court cases to hold companies accountable for wrongdoing or to protect the public.

ˇ        Respect, rather than preempt, state and local FOIA laws.

Bills in 2003 Legislature

Open meetings exemption for City Council dies

A bill that would have exempted the City Council from the state Sunshine Laws is apparently dead this year.

The measure didn't make it out of the Senate Judiciary Committee after being passed by the Senate Transportation, Military and Government Operations Committee.

The bill, SB 314, originally exempted all county boards and commissions from the Sunshine Law, but was amended after opposition from the ACLU and the League of Women Voters.

Open Meetings

SB 314. Exempts county councils from the Sunshine Law.

SB 1233, HB 1528. Legislative sunshine law: Bans proxy voting; requires public notice of floor votes; requires public votes to suspend legislative rules; requires hearing for legislative rules; bans unequal weighted votes.

SB1232, HB 937: Requires public notice for informational meetings and briefings

SB1385, HB1101. New board members shall not met to discuss board business before they are sworn in.

SB1636. Public Agency Meetings: Provides that meetings of any advisory group be covered by Sunshine Law.

Government Records

SB427, HB443: Electronic copies of government records. Requires agencies to provide electronic copies of government records, allows agencies to chage a reasonable fee; allows agencies to provide remote access.

SB802, HB397: Limits copy fees to a maximum of 25 cents per page and removes the minimum five cents per page fee

SB1044, HB933: Requires governor's executive orders, proclamations, and messages to the Legislature to be made public within five days of issuance

SB1212: Creates a state information practices commission. Appropriates money for initial costs of establishing the commission. Makes OIP a permanent special purpose agency under lieutenant governorŐs office. Allows commission to appoint the director instead of the governor. Defines vexatious requester.

SB1229, HB931: Requires nonprofit groups with a majority of board members appointed by the state to abide by the state open records and sunshine laws, in addition to nonprofit corporation laws; gives auditor supoena powers

SB1242, HB1026: Neighbor Island access: establishes a statewide fair access commission in the governor's office & gives the joint legislative access committee responsibilities for reviewing, evaluating, and recommending improvements to access government information

SB1499, HB 1571: Office of Information Practices: creates independent five-member OIP appointment panel that appoints executive director to six-year term

SB 1600, HB1661: Vexatious requester. Authorizes the director of OIP to determine that a person is a vexatious requester and places restrictions on such a person.

SB1605, HB1514: Information practices compliance program: sets up compliance program and designates a compliance officer in each department; OIP certifies departmental compliance.

Welcome to the 22nd Legislature

On the opening day of the 22nd state Legislature on Jan. 15, something will happen that hasn’t occurred for at least 20-some years: The House leadership will bar news reporters from the floor of the House chambers.

Traditionally, reporters have been allowed on the floor before or after sessions to interview legislators.

Speaker Calvin Say says these new restrictions will be in place:

piano is now.

These restrictions come about because of a security report by Keith

Kaneshiro commissioned by the House speaker and Senate president after Sept.

11th and a new House sergeant of arms, Kevin Kuroda.

The news media met with Say and Kuroda on Jan. 13.

They heard our arguments about how this:

crucial deadline times.

The Senate isn't considering these rules.

They say a sergeant at arms will pass messages onto legislators for interview requets, but that didn't answer questions about persuading someone to do an interview who may be reluctant.

There will be no restrictions on the public gallery.

But Kuroda mentioned that this is a first step and if he had his way they'd be talking about metal dectection devices and having the media wear press badges at committee hearings.

Say said they are going into effect and to please work with them on it.

Hawaii SPJ