May 08, 2007

Well, Sunshine week is over. In case you’re not in the know, “sunshine week” is a yearly project of the mainstream media to convince you that newspapers and TV across the county are doing their job in demanding open meetings and records.

They tell us they’re cracking the case of illegal government secrecy despite gaping budget fissures in newsrooms across the country. The few investigative journalists left appear to be stitched together remnants of the recent corporate takeovers. Now they go to jail to hide the confidential identities of assorted, slimy, DC, political hacks, liars and thieves rather than protecting the usual whistleblowers and activists.

The AP and others report that Hawaii has one of the best open meeting and records laws in the country but is one of the worst in enforcement.

AP has always had a good grasp of the obvious.

But it’s no wonder everyone in Hawai‘i government – both political and civil servants – gets away with flouting their non-adherence. Paternalism is, was, and will always be the chief ingredient in Hawaii’s political poke.

Despite the dozens of “official” Sunshine Law violations over the years, none have ever been enforced.
Until recently.... well, sort of..

Les Kondo, the latest boss at OIP (Office of Information Practices) – just might have been the first director to ever read the actual Sunshine Law (HRS 92 /92F). So he pissed off a lot of people.

He tried to enforce the sunshine laws the way they were written. Bad move in Hawai‘i where plantation mentality still bullies and intimidates those who upset the papaya cart.

OIP was set up by the legislature to provide an independent office to settle all disagreements about the Sunshine Laws by adjudicating cases when citizens can’t get documents or access to meetings.

And they’ve got an office full of lawyers to do the research and issue rulings. Kondo came in and cleared up a 10-year backlog of complaints and then started responding to complaints in a timely manner ordering meetings to be open before they take place, not months or years later.

But if the meeting happens in secret anyway – then what? 40 paces at high noon? Where’s the sheriff? Who enforces the OIP decisions? The very first thing the law says... is:
“92-12 ENFORCEMENT a) The attorney general and the prosecuting attorney shall enforce this part.”
Can’t get much clearer than that- The AG is the sheriff. Then the law gets better. If both the OIP and AG denies you your documents or meeting access you can go to circuit court which “shall have jurisdiction to enforce the provisions of this part by injunction or other appropriate remedy” adding that. “any person may commence a suit in the circuit court.”

But Hawai‘i AGs through the ages refused to enforce it.

When pinned down, current AG Bennet and many of his predecessors run a misdirection play, in a bizarre world look at the law.

Bennet says the AG can’t do anything unless and until someone first files a lawsuit and then gets a judge to rule on the matter, the OIP be damned. No investigations and certainly no calling in his deputy sheriffs to confiscate documents and stop illegal meetings before they happen. And even when officials refuse to follow the law on purpose the very concept of an arrest is laughable.

In recent Kauai history, no executive session had ever been made public before a public document request by a Honolulu Star Bulletin Kauai Bureau Chief. In a move that cost him his job, the bureau chief was the first to promulgate a “give ‘em up” letter from Kondo’s OIP and the Council’s Clerk Peter Nakamura. He got the “go-to-hell, er, court” treatment from the AG and then sued the council – on his personal dime – to actually get the documents.... which were, by the time he got them years later, uselessly ancient.

His final article filed – a fairly scathing indictment of the Council and their lack of adherence to the sunshine law in this and other cases- was scheduled for publication the day of his dismissal but was never published.

He eventually won his case as well as a handsome wrongful termination settlement from the Star Bulletin and, after selling his Princeville condo for many times what it cost at the height of the real estate bubble, took a pile of money back to an Arizona retirement after playing electric violin on Desolation Row.

It’s not up to citizens to pay tens of thousands of dollars, as has been demanded in some cases, to do the work that the County Clerk or other governmental unit is supposed to do routinely.

As it stands, anyone, anywhere, in state government can do anything they please when the OIP says “give ‘em up” until Hawai`i Supreme Court rules. The OIP is back to being the toothless tiger it’s always been, now with the proverbial “Nowhere Man” Les Kondo at the helm of the Yellow submarine – making all his nowhere decrees, for nobody.

Andy Parx