 Hi. I'm an assistant professor in the UH School of Communications, and he joins us again to talk about interesting issues affecting the press and journalism in Hawaii. Welcome again to the show, Brad. Well, thank you for having me again. So I noticed that an article in Civil Beat was it today? That came out today. Today, yeah. And it was entitled, When Public Officials Hide Information from the Public. Right. And that's a carefully written title to the article, Public Public. Right. You know, they work for us, but they forgot that a long time ago. They forgot that a long time ago. When I was telling you, when I practiced law, one assumed that public officials would never turn anything over, and that they would say, if you really wanted, you'll sue us. So you had to go sue them. That's not the way the law is intended, right? Right. It's remarkable to think about when we came together as civilizations and we started to pay taxes. We started to think, like, what do we really need? We need, you know, some fire brigade. We need police officers. Let's pool our money and support these things. And it's grown into this enormous bureaucracy where people feel like they're entitled to those positions and that they work for some power source within the bureaucracy and they try to perpetuate and protect their own position in the bureaucracy instead of doing what they were originally intended to do, which was serve us. Yes, serve us. That's the operative thing. Serve us the public who pays this salary. We pay for everything. We pay for the buildings. We pay for the phones. We pay for the paper. We pay for the copy machines. We pay for all of it. That's what galls me so much about it. Do you think it would help if you reminded them of that? I'm trying. I write about it often. Well, give us a preview of the article. Well, basically, there's been a couple cases that have come up recently where clearly public information is involved and public employees won't give it over. This started for me over a year ago when I watched a story by Keoki Kerr about the sheriff's division having a bunch of high-level deputies, like it's almost up to the sheriff level, who had very poor training, according to the report, and were bungling cases because of their poor training for decades. So Kerr reported this and I wrote a column saying, well, next step, who are these people? We'd like to know who they are, so we can check on these cases, see who was wronged in these cases. Can you imagine, if you were one of the people who had your criminal case bungled, you would want some recourse? So I thought it would be pretty simple because the law states that we have a right to know who we employ as a public official and what their title is, what they get paid, all that, because we're paying the bills again. These are our employees. So I asked the sheriff division and we went round and round for a long time. Then came of it, so finally I had to file an appeal and I've been waiting 424 days. But who's counting? But who's counting? Tomorrow will be 425. Yeah. And there's no end in sight. Well, what does the law require them to do? You must have looked at that. Well, the law requires public entities to tell you who works for them and how much your taxes are paying those people and what their job requirements are. So you imagine, like I use the example of going back to, you imagine the first civilizations coming together and people said, let's pool our money and get some firefighters. You would want to know who those firefighters are that you're employing, right? And you want to know how much you're paying them just to hold them accountable to your expectations. And that seems to me like the most simplest part of any kind of public information law. Sure. Yeah. Would you want to know who you're employing? We have grown up and I don't know how it was before statehood. I just, I wasn't really thinking of that at that time. But certainly after statehood we have grown up in a culture where the government resists you whenever you rely on that statute and ask for information. You have to make a request and they have to respond within what, 30 days or something? 10 days, right? 10 days. 10 days. 10 days. If you have your response of what they're going to do and then there's, I think there's a 30-day window. I don't know. I'll have to look specifically at it. But there are stages where they have to respond and typically the response is, we're not going to give you this information and this is something in Hawaii I haven't seen elsewhere because it will cause a frustration of government activities. The term is frustration. So nobody can define to me what that means. I mean lots of things are frustrating but giving public information shouldn't be frustrating. Yeah, I think it's another way of saying it's too much work. Too much work or it'll get in the way of some efficient plan. This relates to one of the things I brought up in the column was the mayor of Honolulu, Kirk Caldwell, is, through the city's council, is not releasing planning documents for his spending plan for 2016 and basically Civil Beat said, okay, you gave us your spending plan. Can we see all the reports that you looked at to make the spending plan? He said no and the argument was, and this is literally what they said, this would not be efficient and effective if the people knew what we told the mayor because then they might know what's going on. They said that basically we don't want to inform citizenry. We want people to just trust in the leader and the leader makes the choices and if the general public knew this information they might question what is being done. Oh my goodness. Yeah, wouldn't that be frustrating? For them. Yeah, it would be really frustrating for them. This is a serious problem because I think we have inculcated this whole thing into our process and most people accept it. When they write these letters back and say we're not going to give it to you, most people abide by that, they go away and it takes somebody strong over Civil Beat or you to do this and make a point of it and then it takes a lawyer to go to court and actually demand in court an order, which you don't always get, huh? You always get the order in court. Well, this is under the guidance of the Office of Information Practices who used to have a 12-year response time to a complaint. Used to be within 12 years they would respond. Now it's down to two years. I'm not impressed. So they're making great progress and... Fraction-wise. And their reports are non-binding, their guidance. So what's the report say? The government should give it or should they give it? Should or shouldn't. Yeah, they make some progress. So you have to go there before you go to court? You don't have to but it's advisable and apparently, and this is all kind of secondhand, I've heard if you have the Office of Information Practices report saying that you should get the information and you do go to court, then you probably have better. Yeah, you'll fare better. Yeah. But it's just a monumental obstacle for anybody in the general public to get a piece of information. I know you're talking about journalists or... Sorry about it. Anybody. I mean, this is not just journalist information, it's everybody's information. Well, I rather than ask for documents like that when I was practicing, it would be as a lawyer representing a client, but I'm a member of the public. Why can't I have that information? If it's discoverable, if it's a public record, and it's just extraordinary how they would stonewall you every time, every time, as if the law didn't say what the law said. Yeah, it's fairly clearly, very clearly written. You just look at the law, it says, you know, the title of the person's position is public record, the amount they make, blah, blah, blah. It's all just in there in plain language. I like this is some obscure piece of legalese. Well, the OIP, Office of Information Practices, sounds like more of an advisory group. Right. And you mentioned in the article that it costs the taxpayers half a million dollars a year, and they've got a bunch of lawyers that they pay salaries to. That's our only one advisory authority, and it's not a authority at all. It really can't help you. Well, in the end, yeah, I mean, like imagine you're working on a timely news story and you have to wait two years to find out about it. It basically sucks the air out of the story. So it's a good way for people to stall on anything they don't want in the newspaper or online or whatever. The problem is to hire a lawyer, and I think the newspaper has, the newspaper is over time. You know, I've always had this problem. They would hire a lawyer and go and sue for the information, but that's expensive. And if they had to sue every time they were rebuffed on a request for information, they'd be spending a lot of money. And I don't think that's recoverable against the government. Right. So that you, it's out of pocket every single time and the government can delay you and obfuscate the issues and make you go through hoops even in court. So the same attitude that led them to say no in the first place is going to lead them and their lawyers to put you off and to delay the proceedings for years before you actually see the information, and you get to spend money chasing your own tail with that. This is not a very... And it ruins your news. You know, like the news is timely at the moment you want it. Right. Two years later or 12 years later, it's just not timely anymore. Nobody cares about it. Yeah. And so many things can change. Yeah. It's no longer relevant. Nobody cares. And you missed the point. And the public has been uninformed about something that was important at one time. And it comes out later. It's old. Old news. No value. Absolutely. So how do we fix this? It sounds like, you know, when I went to law school, there was a professor that said, look, the legislature doesn't understand how to do these things. But at the end of every bill, they have to say that they mean it. So there ought to be a standard clause where the government says, right around the effective date part, it says, yes, we mean this bill. We want you to actually do this bill. And if they feel really strongly about it, and I'm quoting him, well, you say, we really, really mean it. I like that line, though. But, you know, the reality is that the law already exists. What can the legislature do to make it what I'm going to say? Can we mean it? Well, they could give more money to Office of Information Practices so they can respond quicker and add some additional language that makes their decisions binding. That would be a start. I think what it really comes down to, though, is the public servant needs to be aware of what their role is in the society. And maybe even penalties for public servants who don't do this. Culture change. Yeah. So if you're a public servant and you stonewall somebody for a public information request, minimum you get a letter in your file of, you know, a negative letter, that this was a bad service that you did, or, you know, even more kinds of penalties. Yeah. I think that would be going to do that, though. OIP isn't going to do it. No. Yeah. I mean, it would be ideal if it came from OIP. Like, here is a letter saying that you did this wrong, and this goes in your personnel file. And then you got to live with it. Speaking of personnel files, you wrote about one particular personnel file that you wanted to get or that somebody wanted to get from, I guess, the Prosecutor's Office on Catherine K. Aloha, the wife of the Chief of Police. Right. What's happening with that? Well, more stonewalling. So Ms. K. Aloha didn't want her personnel file to be seen, so she filed an injunction against the Prosecutor's Office, not Civil Beat, saying you could not release that file. This is a personal property. Yeah. Well, they said it would—I mean, the kind of the hilarious excuse was that somebody could look at this personnel file, look at how much sickly she had, and reverse engineer and figure out exactly what kind of medical ailment she might have. So it was covered by— This is pretty obscure. I mean, there's some good doctors out there that can diagnose things, but to imagine that you could look at the number of sick days and diagnose an ailment, it was really a stretch. That's the kindest way I can put it. Is this a political thing? In other words, if you go to a judge who's trying to enforce this, he's going to run into a political thing about how the judge is not going to go outside the culture. I hope not. I hope not, too. I don't know. That's a good question. I think, for example, there may be a violation of federal law here if it can be shown that as a consistent practice, the state of Hawaii and for that matter, the city and county of Honolulu or other counties do not respond pursuant to the statute. They're affecting the freedom of information. They're affecting First Amendment. Right. They're affecting due process, I don't know what, but some kind of argument in the federal court, the federal court should get involved, and maybe there's a better shot there. The problem is that's not the one case, that's a whole practice you'd have to go in there. You'd have to have a really concerted effort to try to put together that case. But I think it would be a strong case, because having been here long enough now to see how this practice plays out, it is a culture of stonewalling and a culture of hiding information, hiding connections that is— For no defensible reason. For no defensible reason, zero. I mean, if you say, I have a public agency here, I'm not going to tell you who the sheriff is. I literally, when I was first working on this story, they wouldn't tell me who the deputy sheriff was, who anybody in the whole organization was. That's true. I mean, if you're left to your own devices and you want to ask a question about what happens in government, you write a letter, okay? Maybe you get nobody's—not a Freedom of Information Act letter, just I'd like to know a letter, an email. And nobody answers you. Right. Go to the black hole. Maybe you get the telephone number of the person involved and you call them, and he doesn't respond to your call. And you're left with nothing. And you're the press. You're the guardian of our democracy, and you can't get anywhere. That's why they have Freedom of Information Act statutes. That's why, because the natural process is so often that they won't talk to you. And what are your options? You don't have options. You don't have options. You don't even go down there with a baseball bat. They're not going to tell you. When I first started working on the Sheriff Division column, I tried to figure out who the sheriff was. I went to the website. I literally could not find it on the website. I'm searching who's the sheriff, hierarchy, sheriff, nothing. You know, that's worth mentioning, too, websites, government websites. Oh, my gosh. It's unbelievable how you can go to a government website and never find out who the people are in that office in that agency. You can't find their email addresses, and you can't find their telephone numbers. Nothing. You can't get anything. You get all that blah, blah, blah. But you don't get any information that teaches you anything or by which you can get information about that agency. And they do it purposely. They do it to shine you on. Yeah. You get this general phone number. You call it up, and this has happened to me many, many times. I call up a government agency, get the main line. It's a message service that says mailbox is full. You can't leave a message. It costs a little more, but thank you to get that from the phone company. But, you know, let's talk about the journalistic side of this, because, you know, journalism is under attack in Washington and in this administration. Some people say it's a war on journalism. And how do you respond to that, except by saying, we're going to do a very careful, diligent job. We're not going to make statements that we can be attacked for, not legitimately. We're going to make statements that are backed up by evidence, backed up by good journalism. And that means getting the goods. Right. But if you can't get information from the government, how then can you get the goods? It's baffling to me. Just like the sheriff division, like if I wanted to do any story about the sheriff division doing anything, I would have spent hours and hours just trying to find out who the sheriff is. I mean, this is just mind-boggling to me. So I don't—I do think it's part of—I mean, you know, you could argue incompetence or whatever, but I think there is—part of the plan is, well, if we give people more information, then they'll just want more. And I've ran into this in various government agencies over the years, and I literally had one person in a park site that I will not name, but I was asking him about the attendance and why it wasn't—more people didn't come to the park. And he said to me that, if more people come to our park, it'll wear out the floor boards and they'll use more toilet paper. There you go. What a great reason not to have people come to your park. I said, why don't you just lock the gates and then you'll have all the toilet paper you want? The bureaucratic mentality. Yeah. But let me ask you one thing that occurs to me. Now, there are some people in the press who will pervert what they learn, okay, not only from the government, but from anybody. They'll misquote. And maybe it's training, maybe it's their way of looking at things, maybe it's bad journalism, maybe it's worse than that, you know, maybe it's intentional and willfully. And so, public officials—and I've heard them say this many times—make a little book about who those guys are. And when they call, when they write, when they try to get information, nothing, because they are treated as pariah, how do we deal with that? Well, I mean, my philosophy on free speech is always you can't constrain it or make it smaller. You have to just have more speech. So if a public official feels like a reporter does something wrong or makes a mistake, then it's on them to, you know, bring the mistake into light and formally request a correction. And if their correction isn't made, then next time they get a chance, talk about it to the media or whatever. I mean, I don't like the idea at all of blocking people out, even the worst or the worst of the journalists, like the heavy partisans that are trying to find salacious material in public documents. I just don't think there's a good path to separate them. So if this continues, Brett, and, you know, unless somebody really makes a very affirmative action in court—some judge, maybe a federal judge—it will continue. What happens? What is the worst case analysis in terms of the process of government, the relationship of the public and government in Hawaii? Well, if you start to lose trust in government, then you start to— You don't need to do that. Yeah, you start—well, same with journalism or whatever. When you lose trust in it, then you stop supporting it. You stop supporting it. It gets more dysfunctional. And it's just a death spiral. And pretty soon—and this is what I think is happening on the federal level, with like the EPA or some other national park service and national downward for the humanities. The idea is to erode support for it, which erodes funding, and then pretty soon it's dysfunctional and collapses under the weight of its own expectations. So I think it's more of a strategy to get rid of things people don't like. And same with the Office of Information Practices. They used to have a budget that was—I can't remember exactly—but at least double or more of what they have now. And it just has been knocked down, knocked down to the point where they're just completely ineffective. It's a statement, too. It's a statement of policy. We don't care about this. We're going to marginalize it in every way we can. Well, they don't kill it off because they want to have the appearance. And that's the problem I have with it, is it gives the appearance that, oh, we're in open state. We have this open law. We have this office. We have five attorneys. We have all this support for it. In reality, it's way too small for the job. And all it does is just make everybody frustrated. What about leaking? What about deep throat kind of, you know, obtaining evidence through leaks and deep throats and what have you? I mean, that's happening right now. And Donald Trump is making a big thing of it. But the reality is, to me, just a thorough thought at you is that if you don't allow, if you don't respond to the public request for information, then you will encourage people, you'll force people to do leaking and deep throat, because the press wants it and the public wants it. And if it can't come out in the natural way or in the proper way through a request and a response, then it will come out by leaks, because that's got to happen, you know? It does. And the more people feel like the leadership is doing something wrong, the more likely it is to happen. And I think in the more pressure there is to control information. It's really, like I said earlier, it's kind of uncontrollable. So the more you try to control it, the worse off it is for everybody. If you let it out free and you're just open, people, number one, they trust you more. So when you tell them something and they aren't thinking, oh, what's he hiding? They're thinking, oh, this person is above the board, release the whole document. Everybody can look at it. It's all there. I don't need to guess or think about what might be missing, as opposed to something heavily redacted or the stone walling or whatever. All it does is make you think they're trying to hide something. And they probably are. And so the way to get these nefarious people out of these positions is to open up the information flow and find out who's doing what and get the wrong people out and get the right people in. Yeah. I mean, I think it's become part of the political process that the guys in office want to stay in office. They don't want to tell them to press anything that might hurt them. And so this is a PR campaign. Their whole time in office is a PR campaign, complete with PR people who help them fashion these strategies. But I wonder, do you think that it could be fixed? I'm looking for fixed. Do you think it'd be fixed by somebody who runs for office on the platform of, I'm going to open it up, I'm going to make information available, I'm going to change our way, our government way, in my government, the way they respond to requests from the press and the public? And then does it actually— Well, that's a problem. Lots of people—everybody says it. Governor Ege said it. Barack Obama said it. Lots of people say that. But then when the time comes to open it up, a lot of times they see all the mess that's inside the system, and they feel like, well, we'll just keep this part secret, and we'll keep this part secret, instead of just, hey, let's expose all the gross stuff in here and we'll suffer for a few months of people being aghast that they can't believe this is happening, and then we'll have a clean system and start over. I think that's the big fear. And there's also a lot of people inside, too, that want to protect their problems that they've made. I mean, the sheriff division is a good example. If you have a dozen high-level sheriff division people making lots of money, having lots of power, and they've been screwing things up around here for a long time, they don't want their name out. They've got a lot to hide. They've got a lot to hide. And if they don't have something to hide, just list what's their names. I mean, how hard can it be? Tell us your name, and then, instead, by them hiding the names, everybody in the sheriff division gets, you know, ran through the mud, because you start to think, like, all I can say is, sheriff division. I can't say so-and-so in the sheriff division. I can just say sheriff division, and all of them get tainted, which is bad for the good ones. Yeah, it's not really accurate, and it doesn't create public confidence. And it's not the kind of journalism you want to do. You want to get in there and do your due diligence. You know, all this makes me think that Julian Assange is not yet dead. WikiLeaks is not yet dead, and there's a place for it in a landscape where the government is always refusing to tell you things. There's a place for it, but WikiLeaks and some of the other sites like that, I think, have been corrupted. And Assange, as far as I can tell, is not plain fair. He's not giving equal information to equal, horrible people, you know, about equal, horrible people. He's selectively picking out the people he doesn't like. And that's where I really have a problem with it. The Hillary emails, for example, you know, you look at, okay, what were in the emails? There were some, you know, mildly embarrassing things, but we saw nothing of the counterparts, which apparently they had as well, but they didn't release them. So that, to me, is just unfair. And I would not like to give him any credit for that. I think his credit is the idea of let's have these leaking sites good, but when you use them for political purposes, I think you're right back at the same place you were before he started. Information is power and power corrupts. Definitely. So, you know, at the school of communications at the journalism program, do you teach your students about these things? We do. We have a media literacy class. It's the very first class in their program. And it is designed to teach people about journalistic culture, but also about how the media shapes and contorts and distorts reality. We live in interesting times. Yeah. I think it should be a required class for everybody every year. I'd like to come down and order your class one day. You should. Everybody out there should. Thank you, Brad. Okay. I appreciate it. Appreciate it. Good discussion, as always. Keep on fighting. My pleasure.