Regents violated open-records law by concealing documents

THE ISSUE The University of Hawaii Board of Regents concealed budget documents while commenting on them in an open meeting.

UNIVERSITY of Hawaii regents turned an informational briefing last week into a riddle, alluding to documents that the public could not see. A UH attorney cited a "frustration exception" to the state open-records law, but the concealment left the public in the dark for no good reason. The policy should be discarded.

UH President David McClain told the regents to "look at tab E" to see "the current campus priorities." The public, including faculty, was provided no "tab E" in addition to other documents given to the regents.

When asked about the secrecy, UH attorney Darolyn Lendio cited a part of the open-records law designed "to avoid frustration of a legitimate function." The exception allows a state agency to withhold from the public "recommendations, draft documents, proposals, suggestions and other opinion matters that comprise part of the process by which the agency formulates its decisions and policies.

"It protects the quality of agency decisions by encouraging the uninhibited exchange of ideas, recommendations and opinions within an agency," the law states.

The frustration exception includes such sensitive material as law-enforcement records, some government purchasing procurements, identification of land under consideration for public acquisition, proprietary information and confidential business data such as trade secrets. A category called "deliberative process privilege" can be easily abused.

At a budget meeting of the UH regents last year, administrators assembled a PowerPoint presentation, projecting information onto a screen to be viewed by the public. At a similar session last week, no such public presentation was made. Even budget documents available online were concealed at the meeting.

Lorna Aritani, a staff attorney for the Office of Information Practices, said the exception to the open-records law does not allow for a blanket withholding of all documents. Factual information that does not include opinion must be disclosed, she said. The office ruled in 1991 that a state agency waives confidentiality of documents by "substantially discussing their contents at a meeting open to the public." Clearly, the regents violated that ruling.

The new UH policy also requires people wanting to see budget documents to fill out a written form and wait 10 days before gaining access. That requirement has no purpose except to discourage people from asking to look at documents that should be public to anyone who wants to see them.

Regents said they will re-examine the new policy next month. They should adopt a procedure designed to encourage public involvement by removing any impediments except those that have legitimate purposes of confidentiality. The current practice's only effect is to frustrate the public, not the workings of government.