Pandemic no excuse for government hostility to sunshine laws

by Larry Geller

“Information allows people to scrutinise the actions of a government and is the basis for proper, informed debate of those actions.” (The Public’s Right to Know: Principles on Freedom of Information Legislation,London, 1999, p. 1.)

The founding fathers recognized the connection between democratic government and an informed populace. George Washington, who suffered more than his share of criticism from the prq^, believed in the importance of the free exchange of ideas in a democracy. He once wrote that the process was necessary so Citizens at large may be well informed, and decide, with respect to public measures, upon a thorough knowledge of the facts. Concealment is a species of misinformation." (James E. Pollard, The Presidents and the Press, 1947, pp. 29-30)

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Given the chance, many government boards, commissions and even the Hawaii State Legislature will take the opportunity to operate out of the public view. The current COVID-19 crisis coupled with Governor David Ige’s emergency proclamations have made it easier for government bodies to overstep their discretion in locking the public out of the public’s business.

This morning attorney Lance Collins submitted a written demand that the Maui Planning Commission's contested case proceedings related to the Grand Wailea Resorts proposed expansion be reopened to the public. Disappeared News  and The Hawai'i Independent are media organizations making this demand.

The issue before the Maui Planning Commission is the request by the Grand Wailea Resort to remodel and expand its operations within the Special Management Area.

Three Native Hawaiian community groups, Malama Kakanilua, Hooponopono o Makena and Pele Defense Fund were granted intervention in the proceedings and the Commission appointed Maui attorney Linden Joesting as the hearings officer.

On May 7, the hearings officer issued an order denying that the proceedings were required to be open to the public, reaffirming an earlier decision that the proceedings move forward regardless of the COVID-19 emergency or the stay at home orders on the basis of needing to "get the administrative law work of the County done."

Relying upon First Amendment caselaw protecting the press' right to access adjudicative proceedings, the media groups have also noted Hawaii's long tradition and experience of open access to contested case proceedings especially related to land use.

The letter includes these points:

“In summary, the Media demand that the proceedings for the above-mentioned contested case be re-opened to the public without qualification or delay. Article I, Section 4 of the Hawaii State Constitution and the First Amendment to the United States Constitution, as well as the requirements of the Charter of the County of Maui, impose upon the Maui Planning Commission and its hearings officers, an obligation to conduct contested case proceedings including prehearing conferences in a manner accessible the public and the press.”

Disappeared News feels that it is important to clarify that actions of government be completely transparent—and that the coronavirus crisis not be used as an “excuse” to deny the public its rights. There’s no question that government does have the ability and in the context of public health or national security and public order, or the rights of others like privacy, to impose some rules and limitations. But to place limits on the public’s right to see or participate in the actions of its government, the restrictions need to meet tests of necessity. The denial by the hearings officer does not meet standards of necessity.

Additionally, there is a long tradition and experience of open access to contested case proceedings especially related to land use.

"There has been a total disregard for the rights of the public and the press to access and observe this important case. We sincerely hope the Commission reconsiders this decision immediately," said journalist Victor Gregor Limon.

"This time of emergency does not justify government secrecy. The Resort is certainly not entitled to have their permits fast-tracked behind closed doors while public gatherings are banned and also excluding the press,"

Download 200519 Media Letter to Maui Planning Commission from Disappeared News