STAND. COM. REP. 1008

Honolulu, Hawaii

, 2003

RE: S.B. No. 474

S.D. 2

 

 

 

Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-Second State Legislature

Regular Session of 2003

State of Hawaii

Sir:

Your Committee on Legislative Management, to which was referred S.B. No. 474, S.D. 2, entitled:

"A BILL FOR AN ACT RELATING TO THE AUDITOR,"

begs leave to report as follows:

The purpose of this measure is to allow the Auditor access to confidential records in the Department of Education and Department of Health.

Your Committee finds that the Auditor requires unfettered access to certain confidential records in the Department of Education and Department of Health in order to continue its investigation of the State's compliance with the United States District Court enforced Felix consent decree, and in connection with any other audit or evaluation of any federal or state supported educational program.

This measure grants the Auditor the access it needs by designating the Auditor an authorized representative of the Department of Education and Department of Health, a state educational authority, or a state educational official.

Your Committee is in support of the efforts of the Auditor and in agreement with the objectives of this measure; however, the Attorney General has submitted testimony in strong opposition to this measure citing a violation of federal law which makes any educational records or personally identifiable information confidential without the written consent of the student or parent, unless the Auditor is deemed to be a "contractor" of the Department of Education or the Department of Health. The Attorney General believes that this measure's attempt to characterize the Auditor as a contractor falls short because such a contractor would be accountable to the department it contracts with, while the Auditor would be accountable to neither department.

The Attorney General further notes that this measure would violate the separation of powers doctrine if the Auditor is made an authorized representative of an executive department while performing official audit duties for the Legislature. It could also place the Auditor in a conflict of interest position by attempting to audit the department to which it is an authorized representative or contracting agent.

On the advice of the Attorney General, the Department of Education and Department of Health also submitted testimony in opposition to this measure. The Auditor supports the measure as a way in which to obtain the access it believes is necessary for the continuing performance of its duty.

While your Committee strongly feels that the purposes of this bill warrant its continued viability, it requests that the Committee on Judiciary, in its deliberations, give due consideration to the concerns raised by the Attorney General, the Department of Health, and the Department of Education.

As affirmed by the record of votes of the members of your Committee on Legislative Management that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 474, S.D. 2, and recommends that it pass Second Reading and be referred to the Committee on Judiciary.

Respectfully submitted on behalf of the members of the Committee on Legislative Management,

 

____________________________

MICHAEL Y. MAGAOAY, Chair