Ka Wai Ola - Office of Hawaiian Affairs, Volume 5, Number 5, 1 May 1988 — Policy on Access to Hecords Called 'Unfair' [ARTICLE+ILLUSTRATION]

Policy on Access to Hecords Called 'Unfair'

Panel Tackles Native lssue on 'Closed Door'

By Deborcih Lee Ward, Assistant Editor

Ka Wai Ola O OHA

The rights of native Hawaiians to gain access to government records that may affect their lives and property are being unfairly obstructed or delayed by "closed door" government, say Hawaiian rights proponents. Government spokesmen say a complex system is trying to be impartial and fair to all parties seeking information, while being cautious about potential lawsuits. Both sides were looking at a bill in the 1988 Legislature that could have clarified and improved the balance between individual privacy and public access to official records. This issue was covered in a sometimes touchy Mar. 17 noontime panel discussion sponsored by the University of Hawaii Department of Joumalism as part of a series organized in conjunction with Freedom of Information day. Panelists in the session on "How Closed-Door Government Affects Native Hawaiians" included Mahealani Ing, executive director of the Native Hawaiian Legal Corporation; Dr. Richard Kekuni Blaisdell, acting interim director of the University of Hawaii Center for Hawaiian Studies; Matthew Chung, staff attorney for the Governor's Committee on Public Health Records and Privacy; and Earl (Buddy) Neller, archaeologist, and cultural specialist for the Office of Hawaiian Affairs. The panel discussion at the Manoa Campus Center was moderated by UH journalism student Hency Yuen, president of the campus chapter of the Society for Professional Journalists/Sigma Delta Chi-UH Manoa. About 20 persons, mostly students and faculty, were in attendance. Yuen began the session by pointing out that the laws, rules and regu!ations that mold decisions by govemment agencies on whether records are open or closed are affected by four sometimes eonflicting principles — the democratic concept of open govemment; the watchdog role of the public (including the media); personal privacy as protected by the state and federal constitutions; and the need for govemment to do its job without interference.

The legal staff of the non-profit NHLC represents Hawaiians in cases involvingnativeHawaiian rights to kuleana lands, ahupua'a tenant rights, cases conceming implementation of the Hawaiian Homes Act and ceded lands trust, and reparations. Ing said NHLC has experienced problems in cases when state and county offices disagreed with NHLC over what constituted "public records," and withheld them, causing NHLC to seek release of records from the Attomey General's office. Ing says that given the statutory definition of public records, time delays in obtaining release of documents that should be under open access, are a disservice to the public and unwarranted. Prompt access to records is crucial in certain court actions, she said. NHLC has met with delays from a few days to get records released with assistance of the AG's office to up to a month to obtain information from county offices through formal legal procedures. She said it ean and has made the crucial difference between upholding native Hawaiian interests and their frustration. Chung, staff attorney for the Governor's Committee on Public Health Records and Privacy, said that the government is required by law to be impartial and that "the problem faced by native Hawaiians trying to get records under the existing

statutes is faced by anyone who seeks a record not specifically spelled out for disclosure in the existing law." "It seems to be when you espouse a policy that govemment is by the people and for the people everything it does should be open . . . The problem is that even though the existing law makes very broad statements about access to govemment records, in actual applieahon it allows agreat deal of discretion to the administration.

"In this day of lawsuits for libel and slander, invasion of privacy and other damages, the administration is naturally gun-shy of unnecessary disc!osures or release of information, especially when someone asks for that recordand totally outside of the request there is litigation going on. It goes to show that access to records is not always simple." In the Legislature this spring, the House and Senate wrestled with how to maximize public access to documents yet protect individual privacy and the record-holder (agency or officer) from potential Iitigation. A lengthy rewrite of existing statutes on public records in the introduced House Bill 2002 spelled out various types of records for public disclosure, along with access timetables, denial redress procedures, and other details. The bill was drastically shortened by the Senate govemment operations committee, and as of this writing, was sent back to conference committee to

iron out disagreements between the two houses. Panelists had no clear solutions to resolve eonflicts over access to records, but they did see hope for improving the current situation through proposed legislation. Chung: "What is really important is that the issue is now being actively debated by both houses in the legislature. Sothere is a very real possibility that by the end of this session a lot of the problems with access to govemment records will be dealt with."

Ing: "With respect to public access to records . . . if this bill makes the language more precise it will help everybody so the lawyers aren't arguing about whose interpretation is correct." Blaisdell:"Closed government" is more than a question of access to documents, and it is equally important to consider the intent of laws that provide or restrict access. He added, "My eoneem is the attitude shown by government agencies toward native Hawaiians. We have to correct this mentality, that 'You native Hawaiians are just like everybody else.' . . . We are not Iike everybody else. In Hawaii we are the native peopie anel the govemment has recognized this, but refuses to really act upon it. All we ask is the respect that should be given to indigenous people, for our culture, language, religions, health and survival in our native land. No more and no less."

Panelists discussing "How Closed Door Government Affects Native Hawaiians" at University of Hawai'i, Freedom of lnformation day program Mar. 17 from left to right are Matthew Chung, Mahealani lng, Earl (Buddy) Neller, Dr. Richard Kekuni Blaisdell.