Hawaii Government's Slide Toward Secrecy 
Day 2

The gutting of the OIP
By Ian Lind and Gordon Y.K. Pang

In its first eight years, the state Office of Information Practices was an important and valuable advocate of openness.

That started to change when Gov. Ben Cayetano decided not to reappoint director Kathleen "Katie" Callaghan. Last October, the office quietly suspended work on its backlog of hundreds of requests for opinions on government openness issues. Three staff attorneys left and the fourth went on maternity leave. Only one of the vacancies has been filled.

Agencies withheld information until they got an opinion from the OIP, and the OIP wasn't issuing opinions. The OIP appeared to have collapsed.

But Attorney General Margery Bronster insists nothing is amiss, saying, "To suggest OIP has shut down is unfair. There has been absolutely no change in policy."

The office was conceived as an arbiter of disputes between government agencies and the public, and as an alternative to expensive court battles.

Agencies can ask the OIP for advice on how to respond to requests for information, and private citizens can appeal to the OIP when their requests are denied.

Hawaii is one of just three states to set up a separate state agency to administer open-records laws. Robert "Robbie" Alm, who spearheaded the 1987-88 push by the Waihee administration to reform the public-records law, said the OIP was the centerpiece of the new law.

"It needed a great Office of Information Practices to make it work," Alm said.

In its first six years, the OIP wonmuch praise. Written opinions, although generally slow in coming, were careful, well-reasoned and seemingly unaffected by politics. The opinions also generally favored public disclosure, narrowing the kinds of information that agecies can withhold from public view.

Callaghan was the recipient of a First Amendment Award given by the Society of Professional Journalists and the Honolulu Community Media Council.

Problems, though, were also apparent. Agencies began to rely on the OIP to make all decisions about public information, prompting the charge that agency requests for opinions were being used to delay the disclosure of information. The OIP sometimes became a dead end, with those requesting rulings forced to wait years for promised opinions that never were produced.

The OIP was also unable to reduce the backlog of requests for agency opinions, or to reduce the time needed to respond to requests. Between 1994 and 1995, the average time reported between a request and a completed written opinion almost tripled from 96 days to 257 days.

When the Honolulu Liquor Commission refused a Star-Bulletin request to review a liquor license application prior to a scheduled public hearing, a request for an OIP opinion was filed. The request, dated Aug. 18, 1994, was not acknowledged by the OIP. The opinion has yet to be issued.

OIP Director Moya Davenport Gray said her office has been busy making rules that make it easier for bureaucrats to understand how to handle public-record requests and charge fees.

She said her office will soon be back up to speed; the rules are nearly ready to be sent to Cayetano. One new staff attorney has been hired, and Gray said she hopes to quickly replace the others who left.

First Amendment attorney Jeff Portnoy praised former director Callaghan for her zeal in issuing opinions on access to government records, but stopped short of criticizing the current regime.

"I think it's clear that the failure to keep Katie Callaghan on was a symbol of a change in philosophy," he said. "She was stepping on a lot of feet."

The Washington newsletter Access Reports was more blunt.

"Callaghan's office ran afoul of the powerful police union when her office ruled that disciplinary records were disclosable," the newsletter said in its May 10, 1995, issue. "While the police union connection was never made explicit, Callaghan largely became persona non grata with politicians after the episode; although she reapplied for her position, she was never seriously considered ... "

"I just have the feeling that (Cayetano) is not putting any priority into open government whether it's money, personnel or what," said University of Hawaii journalism professor Beverly Keever.

Gray said she agrees that a cultural shift is needed in state and county governments when it comes to openness. The disagreement with critics, she said, is over priorities.

Cayetano declined a request for an interview, but Bronster denied that there has been any move to cut back the OIP. She also notes the state has filed its own legal brief supporting the OIP's position in the police union case, and she expects that the appellate division of the attorney general's office will appear before the Hawaii Supreme Court in a hearing scheduled for this month.

Bronster also stressed that the governor had not been aware of the OIP's backlog.

"He was not a happy puppy when he found out," she said. "It was not something he liked hearing. He was pretty appalled."

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