Report Title:
Public Information; Decisions; Compliance
Description:
Makes the powers and duties of the office of information practices in administering the sunshine law consistent with its powers and duties in administering the Hawaii uniform information practices Act. Gives OIP the ability to render decisions, makes compliance by boards mandatory, and allows OIP to obtain court enforcement of its decisions. (SD1)
|
THE SENATE |
S.B. NO. |
2366 |
|
TWENTY-THIRD LEGISLATURE, 2006 |
S.D. 1 |
|
|
STATE OF HAWAII |
||
|
|
A BILL FOR AN ACT
RELATING TO THE OFFICE OF INFORMATION PRACTICES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 92, Hawaii Revised Statutes, is amended by adding to two new sections to part I to be appropriately designated and to read as follows:
"§92- Alternative enforcement by the office of information practices; complaints. (a) Any person may file an administrative complaint regarding a board's action based upon a violation of this part. Upon the filing of a complaint by any person or at the discretion of the director of the office of information practices, the office of information practices shall review or investigate any action of a board for the purpose of:
(1) Requiring compliance with this part;
(2) Preventing violations of this part; or
(3) Determining the applicability of this part to actions of the board.
Submission of a complaint to the office of information practices concerning the action of a board shall not prejudice the person's right to bring a judicial action under section 92-12.
(b) If the office of information practices concludes after review or investigation pursuant to subsection (a) that an action of a board has violated or will cause a violation of this part or is subject to this part, the office of information practices shall notify in writing the person who filed the complaint and the board of the decision, the reasons for the decision, and the actions necessary to ensure compliance with or to correct the violation of this part. If the decision is that the action of the board has not violated or will not cause a violation of this part or is not subject to this part, the office of information practices shall notify in writing the person who filed a complaint and the board of the decision, the reasons for the decision, and the person's right to bring a judicial action under 92-12(c).
(c) The office of information practices may apply to the circuit court of the circuit in which a board is located for a judgment to enforce the provisions of the decision made pursuant to this section. A proceeding to enforce the decision shall be commenced within ninety days of the action of the board.
§92- Notice to the office of information practices.
When filing a civil action pursuant to section 92-12 that is under, related to, or is affected by this part, a person shall notify the office of information practices in writing at the time of the filing. The office of information practices may intervene in the action."
SECTION 2. Section 92-1.5, Hawaii Revised Statutes, is amended to read as follows:
"
[(1) Upon request or the filing of a complaint by any person concerning the failure of any board to comply with this part, shall review and rule on any issue regarding compliance of a board with the requirements under this part; provided that any review by the office of information practices shall not be a contested case under chapter 91 and shall be optional and without prejudice to rights of judicial enforcement available under this part;
(2) Upon request by a board, shall provide and make public advisory guidelines, opinions, or other information concerning that board's functions and responsibilities under this part;
(3) Upon request by any person, may provide advisory opinions or other information regarding that person's rights and the functions and responsibilities of boards under this part;
(4) May conduct inquiries regarding compliance by a board and investigate possible violations under this part, including by examining the records and making inquiries of any board, and may enforce its investigative power in the courts of this State;
(5) May recommend disciplinary action to the appointing authority of a board for violations of this part;
(6) May actively solicit the comments of the public regarding the implementation of this part;
(7) May review the official acts, records, policies, and procedures of a board under this part;
(8) Shall assist boards in complying with the provisions of this part;
(9) Shall have standing to appear in cases relating to the application of this part;
(10) May commence a proceeding in circuit court to enforce a decision made pursuant to section 92- ; and
(11) Shall report annually to the governor and the legislature on the activities and findings of the office of information practices."
SECTION 3. Section 92-12, Hawaii Revised Statutes, is amended to read as follows:
"§92-12 Enforcement. (a) The attorney general [and], the prosecuting attorney, and the office of information practices shall enforce this part.
(b) The circuit courts of the State shall have jurisdiction to enforce the provisions of this part by injunction or other appropriate remedy.
(c) Any person may commence a suit in the circuit court of the circuit in which a prohibited act occurs for the purpose of requiring compliance with or preventing violations of this part or to determine the applicability of this part to [discussions or decisions of the public body.] actions of the board. The court may order payment of reasonable attorney fees and costs to the prevailing party in a suit brought under this section.
(d) The proceedings for review shall not stay the enforcement of any [agency] board decisions; but the reviewing court may order a stay if the following criteria have been met:
(1) There is likelihood that the party bringing the action will prevail on the merits;
(2) Irreparable damage will result if a stay is not ordered;
(3) No irreparable damage to the public will result from the stay order; and
(4) Public interest will be served by the stay order."
SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.