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Opinion Letter No. 02-08
September 6, 2002
'Olelo: The Corporation For Community Television and Ho'ike: Kauai
Community
Television, Inc.
The Community Television Producers Association asked
the OIP to determine whether 'Olelo: The
Corporation for Community Television ("'Olelo") is a state
agency or a quasi public body. In addition,
The League of Women Voters of Kauai asked the OIP to reconsider
its opinion that Ho'ike: Kauai
Community Television, Inc. ("Ho'ike") is not subject to
the requirements of the Uniform Information
Practices Act (Modified), chapter 92F, Hawaii Revised Statutes ("UIPA").
The OIP found that 'Olelo and Ho'ike are corporations owned, operated,
or managed by or on behalf
of this State as set forth under section 92F-3 of the Hawaii Revised
Statutes, and are, therefore,
required to follow the UIPA. To the extent that this opinion is
in conflict with OIP Op. Ltrs No.
93-18, No. 94-23, and No. 94-24, those opinions are rescinded by
this opinion.
The Director ("Director") of the Department of Commerce
and Consumer Affairs ("DCCA") has
required, as the local franchising authority, the cable franchisee
to set aside public, education, and
governmental access channels ("PEG access channels").
Both 'Olelo and Ho'ike were originally
created by the DCCA, notwithstanding their current corporate form,
and are funded almost entirely
through funds allocated pursuant to the Director's authority under
the Hawaii Cable Communications
Systems Law, chapter 440G, Hawaii Revised Statutes (1993) ("HCCCSL").
The OIP concluded that although the DCCA has not exercised close
control over the administration of
the PEG access channels, the DCCA does have significant and direct
control over ‘Olelo and Ho’ike
through its appointment and removal power of the majority of appointees
on the boards of those
corporations. The OIP concluded that the DCCA exercises indirect
control over the existence of
‘Olelo and Ho’ike through the contractual agreements
designating both as the Director’s designee and
terminating their corporate existence when that designee status
ends.
The HCCSL and the contractual provisions together set forth a clear
State policy to have the DCCA
administer, through the Director’s designees, cable channels
for use by the public and for educational
and governmental uses. The OIP concluded that the DCCA performs
a government function by
providing for PEG access channels, and that the administration of
such channels, but not editorial
control over the public portion of PEG access channels, is a government
function performed by ‘Olelo
and Ho’ike by or on behalf of the DCCA.
Finally, as the DCCA has used its power to require payments of money
by the Cable Operator to
support the PEG access channels, given the financing arrangements
between the DCCA, the Cable
Operators, and the Public Access Organizations, and the federal
case law treating similar funding
arrangements as public funding, the OIP found that these monies
paid to the Public Access
Organizations are public funding.
As a matter of public policy, the Legislature declared that the
formation and conduct of public policy
— the discussions, deliberations, decisions, and actions of
government agencies — be conducted as
openly as possible. Haw. Rev. Stat. § 92F-2 (1993). The OIP
is required to construe the UIPA to
promote the chapter’s purposes and policies, which include
enhancing governmental accountability
through access to government records.
Therefore, because ‘Olelo and Ho’ike are owned, operated,
or managed on behalf of this State, their
records are also subject to this policy as set forth in the UIPA.
When the records of ‘Olelo and
Ho’ike are accessible to the public, government can be held
accountable for its actions, even when
government’s actions are carried out by separate entities.
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