The Civil Beat Law Center submitted testimony to the Hawaii State Ethics Commission supporting the release of financial disclosure statements filed before July 8, 2014 by members of state boards and commissions. The testimony argues that: 1) Releasing pre-July 8 records is not a retroactive application of law, as public disclosure laws apply prospectively even to previously created records. 2) Any privacy concerns from releasing the records must be balanced with the public interest in effective government ethics. 3) It is not the Commission's role to override the legislature's policy decision to make these disclosures public under Act 230. The Commission should adhere to its independent, impartial role and release the 2014 statements as required by law.

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Hawai‘i State Ethics Commission
Honorable Edward L. Broglio, Chair
Honorable David O’Neal, Vice Chair
Testimony in Support of Releasing Board and Commission
Financial Disclosure Statements Filed Before July 8, 2014
Meeting: September 24, 2014 at 10:00 a.m.
Dear Chair and Members of the Commission:
My name is Brian Black. I am the Executive Director of the Civil Beat Law Center for
the Public Interest, a nonprofit organization whose primary mission concerns solutions
that promote government transparency. Thank you for the opportunity to submit
testimony concerning the Commission’s decision to restrict access to financial
disclosure statements filed by members of the State’s most powerful boards and
commissions.1 The Law Center strongly urges the Commission to reconsider and
release the disclosures as required by Act 230.
From the limited public discussion of this issue to date, I am aware of two concerns:
retroactivity and privacy.
Releasing Pre-July 8 Records Is Not Retroactive Application of Law. The Hawai‘i Supreme
Court has held that public disclosure laws have prospective application, even if the
laws would require disclosure of records created before the law’s effective date. Any
other interpretation leads to a horrible mishmash where access to public records would
depend on the law as it existed when a document was created. In such a world, the
Legislature could never improve public access and government accountability because
records once marked confidential would remain forever outside public view. The
Hawai‘i Supreme Court has rejected such an impractical view of the law.
Any Privacy Concerns Must Be Balanced With the Public Interest. It is troublingly
inconsistent for the Commission to apparently claim that certain financial disclosures
1 The Law Center represents the online publication Civil Beat in connection with its July 14 request for the
2014 financial disclosure statements filed by current members of the University of Hawai‘i Board of
Regents, State Land Use Commission, and the Board of Directors of the Agribusiness Development
Corporation. My remarks, however, are not confined to that single request and are not offered in any
representative capacity on behalf of Civil Beat.

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September 24, 2014
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are so highly intimate and personal as to raise constitutional privacy concerns, while
simultaneously releasing the same information for other board members, simply
because of a filing date. Hawaii’s constitutional right of privacy is not absolute. The
right must yield when necessary to the weight of public interest. For that reason, the
Hawai‘i Supreme Court has expressly held that the right of privacy does not override
the constitutional ethics mandate concerning financial disclosures. The public has a
constitutionally-recognized interest in effective government ethics. Here, that interest
turns on whether individuals continue to serve as members of the State’s influential
boards and commissions, not whether they filed before or after July 8.2
Ultimately, it is not the Commission’s role to resolve the balance of privacy and public
interests in what financial disclosure statements should be made public. The Hawai‘i
Constitution tasks the Legislature with deciding which disclosures should be public
and which remain confidential. By Act 230, the Legislature made public the financial
disclosures for members of 15 boards and commissions. There is no legal basis for the
Commission to second-guess the Legislature’s policy decision.
The Commission Should Be Independent. The Hawai‘i Constitution enshrines the status of
the Commission as a politically independent and impartial body. Thus, it is
disconcerting that the Commission has taken a position more closely aligned with
political interests. The Legislature agreed with the Commission that the public was in
the best position to identify potential conflicts of interest on the State’s powerful boards
and commissions. Governor Abercrombie, however, subsequently raised questions
about the fairness of public disclosure, but he cited no legal concerns and let Act 230
become law without his signature. Now, disregarding advice from its own Executive
Director and General Counsel, as well as Hawai‘i Supreme Court precedent, the
Commission has opted to continue a less effective code of ethics until at least 2016. I
strongly urge that the Commission preserve its constitutional independence and
mission by adhering to the highest standards of ethical conduct and releasing any 2014
financial disclosures filed before July 8.
The Hawai‘i Constitution recognizes that it is a privilege to serve as a public official and
that public officials need to make sacrifices not required of private citizens. Only
2 Also, it is questionable whether the board members affected by Act 230 could articulate a real privacy
concern that should be balanced against public interest. More than a month before the filing deadline for
financial disclosures, both chambers of the Legislature—after several widely-publicized debates—
unanimously passed S.B. 2682 . Board members further were told that the financial disclosures would be
made public if they did not resign before the effective date and were provided an opportunity to amend
filings before the effective date. Board members who continued to serve as public officials had no
reasonable expectation that the financial disclosures would remain confidential after July 8.

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through such sacrifices does the State maintain public confidence in the integrity of our
government and policymakers.
Thank you again for the opportunity to testify.