June 25, 2021  |  Articles

Advocating for Freedom of Information for Hawai‘i’s Education

Desks And Chairs In Classrom

When the Hawai‘i State Department of Education (DOE) refused to share its public financial records with an education reform group, two Cades Schutte attorneys championed the group’s successful effort to obtain the information and protect the public’s legal right to a transparent government. The case concluded with the court holding the DOE liable for violating state open-records laws and, as a sanction for that misconduct, requiring the DOE to pay all of our client’s attorney’s fees.

Cades Schutte partners Jeffrey S. Portnoy and John P. Duchemin have a history of teaming up to guard the public’s right to access government information.  Mr. Portnoy, one of the state’s preeminent advocates for open government, and Mr. Duchemin, a former business and government reporter for the Honolulu Advertiser and Pacific Business News, previously have obtained landmark Hawai‘i Supreme Court rulings affirming and expanding the public’s constitutional right to open court proceedings and records.  They frequently represent individuals and entities seeking to obtain government records under the state’s open-records law, the Uniform Information Practices Act (or UIPA).

So when non-profit educational reform organization the Education Institute of Hawaii (EIH) asked Messrs. Portnoy and Duchemin for help in obtaining financial records from a reluctant DOE, the attorneys were happy to accept.  Messrs. Portnoy and Duchemin, working pro bono, without charge, brought a civil suit in state court seeking to compel the DOE to produce the records.  Their efforts to date have been successful: as the lawsuit proceeded, the DOE finally dropped its objections, and agreed to produce the records more than two years after EIH’s initial request.

EIH is a Hawai‘i nonprofit organization whose mission is to improve the quality of public education in Hawai‘i. In March 2018, EIH submitted a formal UIPA request to the DOE for detailed budgetary line-item information from the 2016-17 school year.  The goal of EIH’s request was to obtain data allowing for itself and other organizations to perform timely, independent financial analyses of recent public education expenditures.

From the outset, the DOE resisted EIH’s request for information.  In response to EIH’s request, the DOE stalled for several months, then refused to produce nearly all of the requested budgetary information.  The DOE claimed that the records were “not readily retrievable.”  After EIH in early 2019 mounted a public information campaign to push for greater fiscal transparency at the DOE, DOE Superintendent Christina Kishimoto sent a letter to EIH warning the organization not to pursue its information request further and claiming that it was “not productive” for EIH to mount a public campaign for more information.

Facing apparent stonewalling by the DOE (and Kishimoto’s warning), EIH retained Cades Schutte to file suit on EIH’s behalf against the DOE, also naming Kishimoto in her capacity as DOE superintendent.  The lawsuit, filed in Hawai‘i State Circuit Court in late 2019 and prosecuted by Messrs. Portnoy and Duchemin through much of 2020, alleged that the DOE violated UIPA by failing and refusing to timely produce the requested documents, and sought to have the Court compel production of the documents.

Under the pressure of litigation, the DOE finally produced the requested records in the fall of 2020.  The DOE also produced evidence that effectively conceded that the requested records could have been timely produced with little staff effort.  (For instance, DOE records indicate the department deliberately pared back its retrieval efforts in 2018, and also that the ultimate production in the fall of 2020 took less than 30 minutes to retrieve).

Cades Schutte then filed a motion on EIH’s behalf seeking partial summary judgment, seeking to conclusively establish the DOE’s liability for violating UIPA due to the delayed production.  On March 25, 2021, the Court sided with EIH, granted EIH’s motion, and issued an order requiring the DOE to pay EIH its reasonable attorney’s fees and costs as a sanction for the DOE’s misconduct.  The Court said the fee order is intended to deter the DOE from similar delays in the future when EIH, or other members of the public, seek financial information on Hawai‘i’s public school system.

The case concluded as a total victory fo EIH when the Court ruled on June 14, 2021 that the DOE must pay to EIH nearly almost all of its attorney’s fees and thousands of dollars in related costs, totaling nearly $100,000.

The budgetary records that EIH requested are especially pertinent at this time, as the Hawai‘i educational system faces budget cuts resulting from the COVID-19 pandemic. As other organizations make similar requests for information from the government to battle the consequences faced by COVID-19, financial or otherwise, they must be able to gather this information promptly. We are proud to have assisted EIH in successfully retrieving the sought information, and hope that the outcome of our efforts sends a message to other government agencies in Hawai‘i and deters them from refusing to provide complete responses and violating UIPA.

This article was published as part of the Spring/Summer 2021 issue of ke kumu, Cades Schutte’s client newsletter. Read the full publication of ke kumu, which explores some of the laws unique to Hawai‘i.