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HomeMy WebLinkAboutCommunication No. 2026-13 Deputy Corporation Counsel Guidance on Meeting Procedures1 COMMUNICATION REGARDING PUBLIC TESTIMONY AND MEETING PROCEDURES FOR COMMUNITY DEVELOPMENT PLAN ACTION COMMITTEES The following guidance was provided by Deputy Corporation Counsel regarding meeting procedures and the acceptance of public testimony by Community Development Plan Action Committees (“ACs”). Meeting Procedures AC meetings are conducted using a modified version of Robert’s Rules of Order, consistent with the practice of most other County boards and commissions and the County Council. Each body determines the level of formality and efficiency that is applicable to its own purpose and operation, with some following Robert’s Rules more strictly than others. Public Testimony Requirements Hawaiʻi Revised Statutes (“HRS”) Section 92-3 requires boards to afford all interested persons an opportunity to present oral testimony on agenda items. The statute provides, in relevant part: “The boards shall also afford all interested persons an opportunity to present oral testimony on any agenda item; provided that the oral testimonies of interested persons shall not be limited to the beginning of a board’s agenda or meeting. The boards may provide for reasonable administration of oral testimony by rule.” The State Office of Information Practices (“OIP”) has advised that this section of Chapter 92 prohibits a public body from requiring that a public testifier identify themselves. A board may request a testifier’s name and place of residence, as is done by the Planning Commissions; however, a person who declines to provide that information must be permitted to testify anyway. The ACs have not adopted rules regarding the acceptance of public testimony. Timing of Public Testimony Regarding when testimony should be received, OIP has advised that public testimony be accepted, at a minimum, at the start of the meeting and at the initiation of the agenda matter that testimony concerns. Communication No. 2026-13 2 To what extent can a board decide when to take oral testimony during its meeting? Within certain limits, a board can choose when to hear oral testimony on agenda items. However, a board cannot hear all the oral testimony only at the beginning of the meeting, and it must hear the testimony on a given agenda item prior to its consideration of that agenda item. Beyond those restrictions, a board can choose when to hear testimony. For instance, a board could allow a limited testimony period at the beginning of the meeting to accommodate members of the public who prefer not to wait and then continue to hear testimony immediately before each agenda item from those who have not testified earlier on that item. A board could also choose to hear testimony on several agenda items together (in which case it should still allow people testifying on multiple items a full opportunity to testify on each of those items). This guidance establishes minimum requirements rather than a restriction on a board’s ability to receive additional public testimony. An AC therefore has discretion to provide opportunities for testimony beyond the statutory minimum. As one example, the State Land Use Commission provides opportunities for testimony at three different times during its proceedings: 1) at the start of the meeting; 2) when an agenda item is called; and 3) after the parties to that agenda item have presented and responded to questions by the commission but before commission deliberation. The Land Use Commission also allows the same testifier to provide testimony more than once. Additional guidance is available in the OIP Open Meetings Guide (August 2025) and related Sunshine Law training materials at: https://ags.hawaii.gov/oip/sunshine-law-training/ Balancing Public Participation and Orderly Meetings The duties and responsibilities of the CDP Action Committees are set forth in Hawaiʻi County Code Chapter 16-6. In carrying out those responsibilities, the AC must balance its role as a conduit of information between the community and the County, which requires free flowing information, including careful listening to the community, and the running of an efficient and effective meeting, which requires sticking to the matters on the agenda and running a relatively orderly meeting. HRS Section 92-3 does allow that disruptive people can be removed from meetings (“the removal of any person or persons who willfully disrupts a meeting to prevent and compromise the conduct of the meeting shall not be prohibited”). Thankfully, we rarely 3 experience truly disruptive behavior requiring removal of anyone. The AC, through its chair, should find the balance between enough organization to effectuate an efficient meeting and enough openness to allow full public input. Chapter 92, commonly referred to as the Sunshine Law, was recently amended to allow groups like the ACs to have more flexibility to receive public input and third-party reports from any government official in recognition of their role in facilitating communication with their communities. See HRS Section 92-81. Accordingly, the AC, acting through its Chair, should accept public testimony in a manner that supports both orderly and efficient meetings and the AC’s broader responsibility to receive and consider community input. Attachment: OIP Opinion Letter 04-09 Anonymous Testimony and Liability for Disclosure of Records Containing Defamatory Statements Op. Ltr. 04-09 Anonymous Testimony and Liability for Disclosure of Records Containing Defamatory Statements This opinion was partially overruled by OIP Opinion Letter Number 06-04. OIP Op. Ltr. No. 04-09 May 3, 2004 The Honorable Brian T. Moto Corporation Counsel, County of Maui Department of the Corporation Counsel 200 South High Street Wailuku, Hawaii 96793 Re: Anonymous Testimony and Liability for Disclosure of Records Containing Defamatory Statements Dear Mr. Moto: This is in response to then Deputy Corporation Counsel Richard K. Minatoya’s request to the Office of Information Practices (“OIP”) for an opinion on certain issues regarding anonymous testimony before the Maui County Council (“Council”) and on whether an agency or agency employee is immune from liability under the Uniform Information Practices Act (Modified), chapter 92F, Hawaii Revised Statutes (“HRS”) (“UIPA”), for disclosing records containing defamatory statements. ISSUES PRESENTED I. Whether the Council and its committees may require that individuals identify themselves in written and oral testimony, and may refuse to accept anonymous testimony. OIP Op. Ltr. No. 04-09 II. Whether the good faith defense to liability in section 92F-16, HRS, applies to disclosure of anonymous testimony that may be defamatory. BRIEF ANSWER I. No. The “Sunshine Law” at part I of chapter 92, HRS, requires that “all interested persons” be given the opportunity to provide written and oral testimony on agenda items. Haw. Rev. Stat. § 92-3 (1993). Because “all interested persons” are allowed to submit testimony under the Sunshine Law, in keeping with the Sunshine Law’s policy of liberally construing its provisions in favor of openness, it is not appropriate to condition submission of testimony on whether a potential testifier identifies himself or herself. Because boards “shall” allow interested persons the opportunity to submit testimony, they do not have authority to refuse anonymous testimony. II. Yes. The UIPA requires that government records be public, unless access is closed by law. Haw. Rev. Stat. § 92F-11(a) (1993). Written testimony received by a board at a public meeting is public, and copies of such testimony should be made available upon request. Because we are of the opinion that the UIPA requires agencies to disclose public testimony upon request, we believe that section 92F-16, HRS, provides agency employees with immunity from criminal or civil liability for such disclosures. We note, however, that section 92F-16, HRS, has never been tested in court. DISCUSSION I. PERSONS NEED NOT IDENTIFY THEMSELVES WHEN TESTIFYING, AND BOARDS AND THEIR COMMITTEES MAY NOT REFUSE TO ACCEPT TESTIMONY FROM PERSONS WHO DO NOT IDENTIFY THEMSELVES The Sunshine Law requires that boards allow oral and written testimony on all agenda items: 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 all interested persons an opportunity to present oral testimony on any agenda item. OIP Op. Ltr. No. 04-09 Haw. Rev. Stat. § 92-3 (1993) (emphasis added). The Sunshine Law does not, however, provide more detailed instruction regarding testimony, other than allowing boards to “provide for reasonable administration of oral testimony by rule.” Id. The legislature has declared that the provisions of the Sunshine Law requiring open meetings shall be liberally construed. Haw. Rev. Stat. § 92-1(2) (1993). Based on this legislative intent, we liberally construe section 92-3, HRS, and decline to read into the statute a requirement that a person identify himself or herself before being allowed to testify. Moreover, a contrary interpretation may deter some interested persons from testifying at all. Because section 92-3, HRS, clearly requires that all interested persons be given the opportunity to testify, to prohibit persons who do not identify themselves from testifying goes against both the legislature’s declaration and the intent of the Sunshine Law. We therefore opine that boards may not require potential testifiers to identify themselves prior to submitting oral or written testimony and cannot refuse to accept written or oral testimony from a member of the public who chooses not to identify himself or herself. II. IMMUNITY FROM LIABILITY You also raise the question whether the good faith provision in section 92F-16, HRS, protects the Council, the County, and County employees from liability for defamation arising from the disclosure of testimony submitted to the Council by a member of the public. To answer your question, the OIP must first consider whether the defamatory statements contained in written testimony received by the Council are subject to disclosure under the UIPA. The UIPA governs public access to State and county government agency1 records2. The UIPA operates on the presumption that records maintained by a State or county agency are public. Haw. Rev. Stat. § 92F-11(a) (1993). The statute contains five exceptions to disclosure, two of which may be applicable to the present issue. For board meetings that are open to the public3, anyone in attendance at the meeting will be able to hear oral testimony. Accordingly, the OIP finds no basis for boards to withhold public access to written testimony that was read at a public meeting on the basis that disclosure would be a clearly unwarranted invasion of personal 1 “Agency” is defined to include County Councils. Haw. Rev. Stat. § 92F-3 (1993). 2 “Government record” means “information maintained by an agency in written, auditory, visual, electronic, or other physical form.” Haw. Rev. Stat. § 92F-3 (1993). 3 Most meetings of boards are required to be open to the public. If certain conditions are met, boards may hold meetings closed to the public. See Haw. Rev. Stat. §§ 92-3.1, 92-4, 92-5 (Supp. 2003, and 1993). OIP Op. Ltr. No. 04-09 privacy, because the testimony has been put into the public domain by the testifier. The testifier thus has no reasonable expectation of privacy. Haw. Rev. Stat. § 92F-13(1) (1993). There may be instances when a board receives written testimony that is not read aloud by the testifier at a public meeting. We find that individuals submitting testimony to a board for an open meeting agenda item do not have a cognizable privacy interest in their testimony because it is not reasonable to assume that their testimony will not be considered in a meeting open to the public. We therefore find that, in ordinary circumstances, written testimony submitted to a board on an agenda item of an open meeting does not implicate the testifier’s privacy interest and is not protected from disclosure under section 92F-13(1), HRS.4 Section 92F-13(3), HRS, allows agencies to withhold records if disclosure would cause the frustration of a government function. Because boards conduct business in open meetings, the OIP finds that testimony on public meeting agenda items must, under normal circumstances, be considered at an open meeting. Because individuals submitting testimony cannot reasonably expect otherwise, their access to and participation in open meetings are not “chilled” by disclosure. Boards, therefore, cannot invoke the frustration exception for testimony submitted on a public agenda item. The UIPA states that “anyone participating in good faith in the disclosure or nondisclosure of a government record shall be immune from any liability, civil or criminal, that might otherwise be incurred, imposed or result from such acts or omissions.” Haw. Rev. Stat. § 92F-16 (1993). Because we are of the opinion that the UIPA requires generally that written testimony received by the Council is public, we believe that agencies must disclose such testimony upon request. We therefore believe that section 92F-16, HRS, provides the Council, the County, and the County employees with immunity from liability for such disclosures. Further, because the OIP is charged with administering the UIPA, we are of the opinion that it is an act of good faith under section 92F-16, HRS, to consult with the OIP when an agency is uncertain whether disclosure of a government record is appropriate. 4 It may be appropriate to segregate home addresses, home telephone numbers, and personal email addresses from written testimony that is not read aloud at an open meeting. OIP Op. Ltr. No. 04-09 CONCLUSION The Sunshine Law requires that “all interested persons” be given the opportunity to provide written and oral testimony on agenda items. Haw. Rev. Stat. § 92-3 (1993). The Council and its committees, therefore, may not require that individuals identify themselves in written and oral testimony, nor may they refuse to accept anonymous written or oral testimony. Written testimony received by a board at a public meeting is public, and copies of such testimony should be made available upon request. Because the UIPA requires generally that written testimony received pursuant to public meetings is public, agencies must disclose such testimony upon request. The good faith defense to liability in section 92F-16, HRS, applies to disclosure of anonymous testimony that may be defamatory. We note, however, that section 92F-16, HRS, has never been tested in court. Very truly yours, Carlotta Dias Staff Attorney APPROVED: Leslie H. Kondo Director CMD:ankd cc: Ken R. Fukuoka Director of Council Services, County of Maui