State Representative Bob McDermott (40th District—Ewa Beach) filed a lawsuit against the University of Hawaii for denying him access to a Pono Choices survey instrument. The survey questions contained therein potentially ask 11 year-old students questions about their sexuality and sexual behaviors.
McDermott has taken this action after numerous attempts to obtain this information on behalf of Hawaii parents and taxpayers. After learning that Pono Choices was a research project, Rep. McDermott sought to obtain a copy of the survey instrument. The University of Hawaii denied him his request, claiming that “release of the instrument is being withheld in order to prevent disruption of the study”.
Chapter 92F of the Hawaii Revised Statutes, however, states that “All government records are open to public inspection unless access is restricted or closed by law.” If an agency wishes to deny access to a record, the agency bears the burden of proof of explaining why denial is proper. Rep. McDermott, however, does not believe the University has adequately met its burden.
“This is a government record”, said McDermott. “Students have already been given access to the instrument’s contents. The information has therefore already been released to members of the public. So it is time for the rest of the public—especially parents—to have access to that same document. It is nonsensical to allow middle schools access to a government document, but deny it to grown adults.” Rep. McDermott’s legal counsel is former State Senator John Carroll.
“This is very reminiscent of my earlier attempts to get copies of the original Pono Choices curriculum material,” said McDermott. “The DOE and University just don’t seem to understand that parents and taxpayers own these institutions, and are entitled to see what their money is buying — especially when it comes to materials of a very sensitive nature put in front of their children for secretive research activities.”
Rep. McDermott holds the position that the public should have access to what is being taught in public schools. The University of Hawaii authored Pono Choices, which is a sexual education curriculum designed for 11 to 13 year-old students. The curriculum is also a human research project. The Department of Education is utilizing a survey instrument (authored by the University) to ask students intrusive personal questions—presumably some are sexual in nature. However, we do not know what the exact questions are—since the University of Hawaii is refusing to release the survey instrument.
PLAINTIFF AND DEFENDANT The Plaintiff is Rep. Bob McDermott. The lawsuit regarding access to the Pono Choices records is based on Chapter 92F of the Hawaii Revised Statutes. Under that law, the Defendant would be the “University of Hawaii”, not the State of Hawaii. HRS §92F-15(a) states: “A person aggrieved by a denial of access to a government record may bring an action against the agency at any time within two years after the agency denial to compel disclosure” (emphasis added). The term “Agency” under HRS §92F-3 means: any unit of government in this State, any county, or any combination of counties; department; institution; board; commission; district; council; bureau; office; governing authority; other instrumentality of state or county government; or corporation or other establishment owned, operated, or managed by or on behalf of this State or any county, but does not include the nonadministrative functions of the courts of this State.
While the University of Hawaii is likely to put up a defense, Rep. McDermott will argue:
• Government records are presumed to be subject to disclosure requirements. • The agency that refuses to disclose information bears the burden of proof of showing why the refusal is proper. • The University of Hawaii has already “let the cat out of the bag” by allowing the DOE to ask these survey questions of members of the public. • Given that the survey has already been released to some individuals, other persons have access under the law.
The real question: what is the University of Hawaii afraid of?