Reapportionment AG opinion

NEIL ABERCROMBIE GOVERNOR

The Honorable Les Ihara, Jr. State Capitol, Room 220 Honolulu, Hawaii 96813

STATE OF HAWAII DEPARTMENT OF THE ATTORNEY GENERAL

425 QUEEN S TREET

HONOLULU. HAWAII 96813 (808) 586-1 500

April 28, 2011

DAVID M. LOUIE ATTORNEY GENERAL

RUSSELL A. SUZUKI FIRST DEPUTY ATTORNEY GENERAL

Re: Reapportionment Commission: Applicability of Sunshine Law and Government Records Law

Dear Senator Ihara:

This responds to your request for our advice as to ''whether the Reapportionment Commission is subject to the Sunshine Law and open records law." See your email dated April 25,2011, a copy of which is enclosed. More specifically, you have asked for our advice concerning the 2011 Reapportionment Commission's approval of its rules which include a 3-day notice requirement for its public meetings and a 48-hour requirement for the submission of written testimony for those who would like to testify on an agenda item. Id.

As you state in your email, the Attorney General advised the 2001 Reapportionment Commission about the Sunshine Law and concluded that it is unclear whether the Reapportionment Commission is subject to the Sunshine Law. To the best of our knowledge, the 2001 Commission did not seek our advice concerning the "open records law".l However, it is our view that written material maintained by the Reapportionment Commission is likely subject to public inspection under Haw. Rev. Stat. Chap. 92F unless disclosure is otherwise limited or restricted.

The Sunshine Law, Part I of Haw. Rev. Stat. Chap. 92

As stated above, it is unclear whether the Reapportionment Commission is subject to the Sunshine Law.

On one hand, it could be argued that the Sunshine Law applies to the Reapportionment Commission because:

I We understand the term "open records law" to refer to the Uniform Information Practices Act, Haw. Rev. Stat. Chap. 92F, pertaining to government records. See Haw. Rev. Stat. § 92F-ll.

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1. The Sunshine Law requires that "every meeting of all boards shall be open to the public and all persons shall be permitted to attend any meeting unless otherwise provided.

" See Haw. Rev. Stat. § 92-3. A "board" is:

any agency, board, commission, authority, or committee of the State or its political subdivisions which is created by constitution, statute, rule, or executive order, to have supervision, control, jurisdiction or advisory power over specific matters and which is required to conduct meetings and to take official actions.

See Haw. Rev. Stat. § 92-2(1).

The Reapportionment Commission is a commission created by the Constitution of the State of Hawaii (the "State Constitution") and Haw. Rev. Stat. Chap. 25. It has supervision and control over reapportionment of the State's legislature and redistricting of the State's congressional districts. See Haw. Rev. Stat. § 25-2. It is required to conduct meetings and take official action. Id.

2. Section 92-1, Haw. Rev. Stat. provides, and the Attorney General's opinions in the past have held, that the provisions ofthe Sunshine Law should be liberally construed to implement the policy behind that Law (i.e., that the discussions, deliberations, decisions and actions of government agencies shall be conducted as openly as possible in order to protect the people's right to know) and that any exceptions to the open meeting requirements of the Law shall be strictly construed against closed meetings. See Op. Atty. Gen. No. 86-5 and 75-11.

3. The Reapportionment Commission is not specifically and clearly excepted from the Sunshine Law. Even if the Reapportionment Commission is part of the legislative branch, Haw. Rev. Stat. § 92-10 expressly excepts only the state legislature and its members from the open meeting requirements and provisions regarding enforcement, penalties and sanctions of the Sunshine Law. No member of the 2011 Reapportionment Commission is a current legislator.

On the other hand, it could be argued that the Sunshine Law does not apply to the Reapportionment Commission because:

1. The Reapportionment Commission is created under Art. IV ofthe State Constitution. Article IV sets out the procedure tor selecting the Commission's members, the creation of a proposed reapportionment plan, public notice of, and public hearings on, the proposed plan, for tIling of the final reapportionment plan and for mandamus and judicial review by the supreme court to compel performance of any duties of the Commission, to correct any errors in the reapportionment plan, or to compel such other actions in order to effectuate the purposes of Art. IV. See Art. IV, Sec. 10 of the State Constitution. Despite its comprehensive

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and detailed provisions, the State Constitution does not expressly provide that the Commission is subject to the Sunshine Law.

2. Pursuant to Haw. Rev. Stat. § 92-11, any final action taken in violation of Haw. Rev. Stat. § 92-3 (requiring open meetings) and 92-7 (requiring notice of all meetings) shall be voidable upon proof of a willful violation ofthose sections. Allowing final actions of the Reapportionment Commission to be voided under Haw. Rev. Stat. § 92-11 ofthe Sunshine Law would appear to be inconsistent with the constitutional scheme set out for the Commission ­particularly the judicial review provided for in Art. IV, Sec. 10 of the State Constitution.

3. Reapportionment is generally considered a legislative function and the Reapportionment Commission appears to fall under the legislative branch. Under Art. III, section 12 ofthe State Constitution, the legislature is to make rules for its own proceedings. Under Haw. Rev. Stat. § 25-3, the legislature has provided that the Reapportionment Commission is to make, and be governed by, its own rules of practice and procedure. See Art. IV, Section 2 of the State Constitution ("The Commission shall act by majority vote of its membership and shall establish its own procedures, except as may be provided by law."). Further, in Haw. Rev. Stat. § 92-10, the legislature excepted itself and its members from the Sunshine Law.

. In short, it is unclear whether the Reapportionment Commission is covered by the Sunshine Law. In light of this uncertainty as well as, the Commission's express constitutional and statutory authority to establish its own policies and procedures, at the April 21, 2011 meeting, the 2011 Commission voted to adopt rules that generally follow the requirements of the Sunshine Law with slight modifications (i.e., reducing the 6 day notice requirement to 3 days and requiring the submission of written testimony 48 hours in advance of a meeting) which the Commission believes are necessitated by the time constraints and deadlines imposed by the State Constitution. It also bears noting that 3 days notice is a minimum requirement and the Commission may post notice of its meetings earlier. Further, with respect to the submission of written testimony in advance ofthe meeting, Rule 11 (g), Rules of the 2011 Reapportionment Commission, provides that "[n]othing in this rule shall prevent the Commission from soliciting oral remarks from persons present at the meeting or from inviting persons to make presentations to the Commission on any particular matter that relates to items on the Commission's agenda."

The Uniform Information Practices Act, Haw. Rev. Stat. Chap. 92F

You also asked about the applicability of the government records law, the Uniform Information Practices Act, Haw. Rev. Stat. Chap. 92F. 2

Pursuant to Haw. Rev. Stat. § 92F-3, a "government record" is "information maintained by an agency in written, auditory, visual, electronic or other physical form." "All

2 You may also wish to pose this question to the Office oflnformation Practices.

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government records are open to public inspection unless access is restricted or closed by law." Haw. Rev. Stat. § 92F-ll (a) .

Thus, documents, files, reports, correspondence and the like, whether in physical hard copy or electronic form, maintained by the Reapportionment Commission constitute government records and are subject to public inspection unless disclosure is restricted or limited by law. For example, under Haw. Rev. Stat. § 92F-12(1), an agency's rules of process or procedure (in their final form, as adopted) are subject to public inspection and Haw. Rev. Stat. chapter 92F does not otherwise limit or restrict their disclosure.

However, as the 2001 Reapportionment Commission stated in a letter to Common Cause Hawaii dated July 31, 2001, preliminary or draft plans or proposals including, for example, proposed alternative redistricting plans, are not subject to disclosure and remain confidential pursuant to Haw. Rev. Stat. §§ 92F-13(3) (the deliberative process privilege) and 92F-13(5) (confidential draft working papers oflegislative committees and work product). A copy of the 2001 Reapportionment Commission's July 31,2001 letter is enclosed for your information. Without waiving its right to withhold the proposed alternative redistricting plan, the 2001 Commission nevertheless voted to release a copy to Common Cause.

If you have other questions concerning the 2011 Reapportionment Commission, please contact me.

Very truly yours,

e~ Deputy Attorney General

Davi e Attorney General State of Hawaii

Enclosures

c: 2011 Reapportionment Commissioners wi encs. Mr. Scott N ago, Secretary to

2011 Reapportionment Commission wi encs.

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