In this week’s article, we spotlight yet another attempt by a government agency to shroud its operations in the shadows.
During any legislative session, our Department of Taxation furnishes a very important service to our legislators. It provides revenue estimates on various bills going through the legislative process. Sometimes it includes in its public testimony the end result—the bill will result in the State gaining $x million per year, for example—but it doesn’t disclose how it got to that number.
A local tax attorney asked for the Department’s revenue estimates on a particular bill, including the underlying assumptions, source data and documents, and computations it uses to create those estimates. After the Department refused to turn them over, he went to the state’s Office of Information Practices, or OIP. In May, OIP issued Formal Opinion F19-05, ruling against the Department and ordering the revenue estimate materials turned over.
In early July, the Department appealed OIP’s decision to First Circuit Court. It won’t turn over the revenue estimates while the appeal works its way through the court system…which could take years.
Under the law, an agency may withhold information if disclosing it would frustrate an important government function. The Department argues that one of its tasks is to produce objective, independent revenue estimates; that task, it argues, is frustrated when it needs to bare its soul to the public.
Also, the law permits withholding of “inchoate and draft working papers of legislative committees.” The Department urges that its revenue estimates are provided for the benefit and use of legislative committees and that no other staff or agency is able to perform this function.
So, I have a few questions here:
Since when is the Department “objective” or “independent”? It takes positions supporting or opposing several bills each session. It’s part of the Executive Branch of government. If the Executive Branch likes or doesn’t like a particular bill, wouldn’t it be natural for the Department’s testimony on the bill, including any revenue estimate, to be colored accordingly?
If a revenue estimate is “objective and independent,” what’s the harm in disclosing it to the public? According to a 2015 study published by the Center on Budget and Policy Priorities, a Washington, D.C.-based think tank, thirty-eight states routinely prepare publicly available “fiscal notes” to accompany legislation that would have a significant fiscal impact. Why are we so different from them?
Revenue estimation isn’t an exact science. It depends heavily on the underlying assumptions. So, why shouldn’t those assumptions be debated and analyzed like any other opinion from any other legislative testifier?
Finally, how could revenue estimates be considered the work product or work papers of a legislative committee? The Department is an Executive Branch agency. If its testimony finds its way into a legislative committee’s work papers, fine, the work papers are entitled to protection, but the source of the information, namely the revenue estimate and Department work papers, isn’t.
Folks, taxpayer money paid for these revenue estimates. Shouldn’t we taxpayers at least be able to see what we paid for?
This veil of secrecy needs to be lifted. We should be able to make better laws if it is.
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Tom Yamachika is the President of the Tax Foundation of Hawaii, a private, nonprofit educational organization dedicated to informing the taxpaying public about the finances of our state and local governments in Hawaii. Tom is also a tax attorney in solo practice and has been since early 2013. Prior to 2013, he was with the accounting firm Accuity LLP, which was formed in 2006 from the Honolulu office of Coopers & Lybrand (which later became PricewaterhouseCoopers). Before that, he served as an Administrative Rules Specialist in the State of Hawaii Department of Taxation from 1994 to 1996, where he drafted rules, interpretive releases, and legislation on several different state taxes. Prior to that, he practiced litigation and tax law with Cades Schutte Fleming & Wright in Honolulu.