Saturday, December 22, 2007

Agency's Determination of an Agency Reviewed w/o Deference.

Olelo v. Office of Information Practices (HSC December 21, 2007)

Background. Three people requested from Olelo, a community television programmer on Oahu, a list of the names and contact information of everyone eligible to vote in Olelo’s election to its Board members. This request came after the Office of Info. Practices issued an opinion letter that concluded Olelo was an “agency” as defined by the Uniform Information Practices Act (HRS Ch. 92F) and was thus subject to its disclosure requirements. Olelo refused to divulge, and the OIP demanded disclosure. Olelo filed a complaint for declaratory relief requesting that the circuit court conclude it was not an “agency.” The circuit court reviewed the request de novo and granted Olelo’s summary judgment. OIP appealed.

An Agency is NOT an Appellate Court. If the legislature granted the agency the discretion to make the decision being appealed, then courts review for an abuse of that discretion. However, if no discretion is granted, then the courts review de novo. Paul’s Electrical Service, Inc. v. Befitel, 104 Hawai’i 412, 419-20, 91 P.3d 494, 501-02 (2004).

The HSC examined HRS Ch. 92F, which lays out the duties and purposes of the OIP, and summarized its powers to include (1) providing guidance to the public and agencies as to when records should be available; (2) monitor agency compliance w/ the UIPA; and (3) adopt rules for the disclosure of records. Thus, “a matter balancing the public’s interest in open gov’t records against an individual’s right to privacy under article I section 6 and section 7 of the Hawai’i Constitution is w/in OIP’s designated area of expertise.” The “threshold issues” like the definition of “agency” and “gov’t records” are not. These terms are defined by the Legislature. The OIP’s application of these terms are not w/in its designated area of expertise warranting de novo review.

The OIP is a peculiar agency. The Legislature empowered it to guide the public and the gov’t as to whether it is in compliance with it, but gave it no enforcement powers. Before today, one could imply that official OIP opinion letters applying the UIPA were pursuant to this power. Now, it seems that challengers of an agency decision can pick apart agency opinions to sort out the “threshold issues” from the functions w/in the agency’s expertise. The HSC appears to maintain that the Legislature did not empower the OIP to interpret the UIPA, but rather guide others on its compliance. The OIP, like any one else, does not have authoritative interpretations of the law. Only appellate courts can do that.

But what would happen if the Legislature did create some kind of agency or tribunal with the express power to interpret, but not enforce, the law? Would its interpretations be reviewed with deference by courts? It should. Look no further than the labor appeals board, the family court and the ICA as examples of the Legislature creating tribunals with the express power to review and interpret the law.

And Olelo is NOT an Agency. It is undisputed that Olelo has a contract with the Dept. of Commerce and Consumer Affairs (DCCA). Although the DCCA has a say in who is on the Board of Directors and provides certain services, Olelo is a non-profit organization and the DCCA does not interfere w/ its daily operations. HRS § 92F-3 defines an “agency” for UIPA purposes as a corporation owned, operated, or managed by or on behalf of the State. The HSC examined every word and phrase and concluded that Olelo plainly and unambiguously is not an agency. It is not owned, operated, or managed by or on behalf of (i.e. performs a State function akin to outsourcing) the State.

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