NEIL ABERCROMBIE DAVID M . LOUIE GOVERNOR ATTORNEY GENERAL RUSSELL A. SUZUKI STATE OF HAWAII FIRST DEPUTY ATTORNEY GENERAL DEPARTMENT OF THE ATTORN EY GENERAL 425 QUEEN S TR EET HONOLULU. HAWAII96813 (808) 586-1 500 April 28, 2011 The Honorable Les Ihara, Jr. State Capitol, Room 220 Honolulu, Hawaii 96813 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 Commissions 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.4l6l20JDOC
The Honorable Les Ihara, Jr.April 28, 2011Page 2 1. The Sunshine Law requires that "every meeting of all boards shall be opento 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 ofthe State of Hawaii (the "State Constitution") and Haw. Rev. Stat. Chap. 25. It has supervisionand control over reapportionment of the States legislature and redistricting of the Statescongressional districts. See Haw. Rev. Stat. § 25 -2. It is required to conduct meetings and takeofficial action. Id. 2. Section 92-1, Haw. Rev. Stat. provides, and the Attorney Generalsopinions in the past have held, that the provisions ofthe Sunshine Law should be liberallyconstrued 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 orderto protect the peoples right to know) and that any exceptions to the open meeting requirementsof the Law shall be strictly construed against closed meetings. See Op. Atty. Gen. No. 86-5 and75-11. 3. The Reapportionment Commission is not specifically and clearly exceptedfrom the Sunshine Law. Even if the Reapportionment Commission is part of the legislativebranch, Haw. Rev. Stat. § 92- 10 expressly excepts only the state legislature and its membersfrom the open meeting requirements and provisions regarding enforcement, penalties andsanctions of the Sunshine Law. No member of the 2011 Reapportionment Commission is acurrent legislator. On the other hand, it could be argued that the Sunshine Law does not apply to theReapportionment Commission because: 1. The Reapportionment Commission is created under Art. IV ofthe StateConstitution. Article IV sets out the procedure tor selecting the Commissions members, thecreation of a proposed reapportionment plan, public notice of, and public hearings on, theproposed plan, for tIling of the final reapportionment plan and for mandamus and judicial reviewby the supreme court to compel performance of any duties of the Commission, to correct anyerrors in the reapportionment plan, or to compel such other actions in order to effectuate thepurposes of Art. IV. See Art. IV, Sec. 10 of the State Constitution. Despite its comprehensive416120JDOC
The Honorable Les Ihara, Jr.April 28, 2011Page 3and detailed provisions, the State Constitution does not expressly provide that the Commission issubject to the Sunshine Law. 2. Pursuant to Haw. Rev. Stat. § 92-11, any final action taken in violation ofHaw. 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 ofthe Reapportionment Commission to be voided under Haw. Rev. Stat. § 92-11 ofthe SunshineLaw 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 theReapportionment 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 ReapportionmentCommission 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 itsmembership 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 theSunshine Law. . In short, it is unclear whether the Reapportionment Commission is covered by theSunshine Law. In light of this uncertainty as well as, the Commissions express constitutionaland statutory authority to establish its own policies and procedures, at the April 21, 2011meeting, the 2011 Commission voted to adopt rules that generally follow the requirements of theSunshine Law with slight modifications (i.e., reducing the 6 day notice requirement to 3 days andrequiring the submission of written testimony 48 hours in advance of a meeting) which theCommission believes are necessitated by the time constraints and deadlines imposed by the StateConstitution. It also bears noting that 3 days notice is a minimum requirement and theCommission may post notice of its meetings earlier. Further, with respect to the submission ofwritten testimony in advance ofthe meeting, Rule 11 (g), Rules of the 2011 ReapportionmentCommission, provides that "[n]othing in this rule shall prevent the Commission from solicitingoral remarks from persons present at the meeting or from inviting persons to make presentationsto the Commission on any particular matter that relates to items on the Commissions agenda." The Uniform Information Practices Act, Haw. Rev. Stat. Chap. 92F You also asked about the applicability of the government records law, theUniform Information Practices Act, Haw. Rev. Stat. Chap. 92F. 2 Pursuant to Haw. Rev. Stat. § 92F-3, a "government record" is "informationmaintained by an agency in written, auditory, visual, electronic or other physical form." "All2 You may also wish to pose this question to the Office oflnformation Practices.416120J DO("
The Honorable Les Ihara, Jr.April 28, 2011Page 4government 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 physicalhard copy or electronic form, maintained by the Reapportionment Commission constitutegovernment records and are subject to public inspection unless disclosure is restricted or limitedby law. For example, under Haw. Rev. Stat. § 92F-12(1), an agencys rules of process orprocedure (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 CommonCause Hawaii dated July 31, 2001, preliminary or draft plans or proposals including, forexample, proposed alternative redistricting plans, are not subject to disclosure and remainconfidential pursuant to Haw. Rev. Stat. §§ 92F-13(3) (the deliberative process privilege) and92F-13(5) (confidential draft working papers oflegislative committees and work product). Acopy of the 2001 Reapportionment Commissions July 31,2001 letter is enclosed for yourinformation. 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 GeneralDavi eAttorney GeneralState of HawaiiEnclosuresc: 2011 Reapportionment Commissioners wi encs. Mr. Scott N ago, Secretary to 2011 Reapportionment Commission wi encs.416120JDOC