Highlights of HRS 92 - The Sunshine Law
--Provided by Hawai`i's Thousand Friends' PROTECT Project and OHELO Students
PUBLIC AGENCY MEETINGS AND RECORDS, HAWAII REVISED STATUTES, §92-1 to §92-71, (MICHIE 2001).
THE SUNSHINE LAW!
In a democracy, the people are vested with the ultimate decision making power. Governmental agencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental processes to the public scrutiny and participation is the only viable and reasonable method of protecting the public’s interest. Therefore the legislature declares that it is the policy of this state that the formation and conduct of public policy-the discussions, deliberations, decisions, and action of governmental agencies –shall be conducted as openly as possible.
-HAWAII STATE LEGISLATURE
1. Issue: whether the Honolulu City Council’s practice of allowing oral testimony at public meetings if persons wishing to testify sign up by a certain time is allowed under chapter 92: ( OIP Opinion # 02-02PDF )
o No. The Sunshine Law requires that boards shall afford all interested persons an opportunity to present oral testimony on any agenda item; and that boards may provide for reasonable administration of oral testimony by rule (chp 92-3 1993) (OIP language)
o OIP does not believe it is “reasonable” under section 92-3 to require persons wishing to testify to sight up by a certain time. Such a requirement would preclude all latecomers from testifying orally. (OIP language)
o Oral testimony must be allowed even if person wishing to testify did not sign up (OIP language)
2. Issue: Is the council’s practice of placing time limits on oral testimony allowed under the Sunshine Law?
o YES. The sunshine Law allows boards subject to it to provide for reasonable administration of oral testimony by rule (§92-3). So long as the Council’s time restrictions on testimony meet the requirements of the Sunshine Law and the Freedom of Speech and Equal Protection Clauses of the US Constitution, the Council may put reasonable time limits on oral testimony pursuant to rules adopted under §92-3. (OIP language)
· The term “board” means any agency, board, commission, authority, or committee of the State or its political subdivisions, which is created by constitution, statute, rule, or executive order. (OIP language)
· OIP was unable to find any Hawai‘i Supreme Court cases dealing with the issue of whether boards may require persons wishing to testify to register in advance.
Honolulu City Council Rule 20 requiring registration prior to a meeting by persons wishing to testify does further the orderly transaction of business, it also can preclude persons from testifying orally if they fail to register by the prescribed time. In light of the Sunshine Law’s policy that the “provisions requiring open meetings shall be liberally construed,” and the clear requirement that boards “afford all interested persons an opportunity to present oral testimony on any agenda item,” the OIP is of the opinion that to disallow testimony from anyone who has not signed up by a specific time would be contrary to a basic policy of the Sunshine Law. (§92-1(2), 92-3) The fact that written testimony is always allowed, and that council members make themselves available to the public outside of meetings does not lessen the statutory requirement that all interested persons be allowed to testify orally on any agenda item. (OIP language)
* Chp 92 sets forth how minutes for both public and executive portions of board meetings must be prepared & maintained. Stating that neither a full transcript nor a recording of the meeting is required but written minutes shall give a true reflection of matters discussed & views of the participants.
* Executive Meeting Minutes - the Sunshine Law requires that boards keep written minutes of all meetings and include substance of all matters proposed, discussed, or decided & a record by individual member of any votes taken & any other information that any member of the board requests be included or reflected in the minutes.
* Minutes are public records and shall be available within 30 days after the meeting. Loopholes - except where such disclosure would be inconsistent with sec 92-5, provided that minutes of executive meetings may be withheld so long as their publication would defeat the lawful purpose of the executive meeting, but no longer.
* If board wishes to hold an executive meeting it must first vote to do so. A meeting closed to the public shall be limited to matters exempted by section 92-5. The reason for hold such a meeting shall be publicly announced & the vote of each member shall be recorded & entered into the minutes of the meeting.
Sec. 92-4 Executive meetings. A board may hold an executive meeting closed to the public upon an affirmative vote, taken at an open meeting, of two-thirds of the members present; provided the affirmative vote constitutes a majority of the members to which the board is entitled. (exact language) A meeting closed to the public shall be limited to matters exempted by section 92-5.
·EVERY MEETING OF ALL BOARDS SHALL BE OPEN TO THE PUBLIC and all persons shall be permitted to attend any meeting unless otherwise provided in the constitution or as closed pursuant to sections 92-4 and 92-5. The boards shall afford all interested persons an opportunity to submit data, views, or arguments, in writing, on any agenda item. The boards shall also afford interested persons an opportunity to present oral testimony on any agenda item. (paraphrase) Meetings that decide issues of a personal nature, such as hirings, firings or disciplinary proceedings of individuals, or other sensitive matters may be closed to the public.(paraphrase)
NOTICE MUST BE GIVEN to the public of any regular, special or rescheduled meeting. The notice must be filed with the lieutenant governor’s office and posted at the meeting at least six days before the meeting’s scheduled date. (paraphrase)