WRIT LARGE

WRIT LARGE: We’re now in possession of a “quotable” text copy of the Office of Information Practice (OIP) application for “writ of certiorari” (mahalo to Larry Geller for the excellent conversion work) regarding the infamous ES (executive session) 177 the Kaua`i County Council held in January 2005 (we mistakenly said 2006 yesterday).

If the Hawai`i Supreme Court accepts the writ they will hear an appeal of an Intermediate Court of Appeal’s (ICA) decision upholding a 5th circuit court ruling denying the access to the minutes of the meeting.

According to the brief

The ICA decision concerns an OIP administrative determination that certain council meeting minutes be disclosed under the State public records law, chapter 92F, FIRS, the Uniform Information Practices Act (Modified) (the - UIPA"). I The ICA affirmed the lower court's ruling that this action was properly brought under chapter 92, HRS, because that chapter's statutory scheme controls the disclosure of minutes.`' The ICA also affirmed the lower court's conclusion that the minutes were properly withheld in their entirety because of the compelling reasons for respecting and preserving the attorney-client privilege also afforded public agencies and because the privileged portions of the minutes were so intertwined with non-privileged portions that redaction would be impractical.

But let’s start at the beginning.

In January 2005 a new county council had just taken office with two new members- Mel Rapozo and Shaylene Iseri-Carvalho. Both were avowed political enemies of newly selected Police Chief KC Lum who was the Lieutenant on duty when the “lap dancer incident” took place and Rapozo by all accounts claimed Lum “turned in” Rapozo after another officer told Lum what was going on in the room next door that night.

Rapozo held Lum responsible for his ouster from the Kaua`i Police Department in the infamous “lap dancer” incident as detailed in the book “KPD Blue” (see left rail to read the book in it’s entirety). Iseri was married to Destry Carvalho, a KPD officer who was part of a faction that opposed Lum. She also, according to multiple sources, hald a grudge against Lum stemming from an incident when Lum was an officer and he tried multiple times to break up a loud party Iseri- at the time a deputy county prosecutor- was hosting at Lydgate Pavilion.

At the time Democratic Party members of the council also didn’t like the two members of the Police Commission who installed Lum- Chair Michael Ching, a prominent independent Hanalei business owner and commissioner Carol Furtado, a Republican.

So they called for an executive session to talk about either, for the first time ever invoking a charter provision, (3.17) that allows the council to investigate administrative departments, and/or finding out what the Board of Ethics was doing regarding their own investigation of the appointment.

Here’s the notice as it appeared on the agenda on Jan 20, 2005

Pursuant to Haw. Rev. Stat. §§92-4, 92-5(a)(4 and 92-5(a)(6), the purposes of this executive session are (1) to deliberate and decide whether an investigation of the Kaua`i Police Department should be conducted pursuant to §3.17 of the Kaua`i County Charter and the process to be used in the investigation (2) to consult with the County's legal counsel on legal issues regarding these matters. This consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item.



According to OIP’s “Statement of the Case” there’s probably more than you wanted to know about what happened next.

(After the meeting) OIP was initially asked by then chairperson of the Kauai Police Commission, Mr. Michael Ching, to investigate whether the meeting had complied with the Sunshine Law, including whether the executive meeting purposes cited applied to the matters discussed by the Council in the ES-177 Meeting.

OIP reviewed the ES-177 Meeting transcript (the "ES-177 Minutes") in camera, and considered the Council's stated justification for the executive meeting. By letter dated April 14, 2005 (the "April 14 opinion"), OIP found that a limited portion of the ES-177 meeting in fact consisted of protected attorney-client consultation under the standard for the open meeting exception at § 92-5(a)(4). (ES-177 Minutes filed under seal). However, OIP found that the remainder of the Council's discussion did not fall within the cited exceptions, and thus found that the remainder of the ES-177 Meeting should have been open to the public. Accordingly, O1P advised the Council to make the minutes of those portions of the ES-177 Meeting public (the "Public ES-177 Minutes").

OIP subsequently received UIPA appeals from Mr. Ching and another member of the public (the "Requesters"), who stated that they had made record requests to the Council in April 2005 for copies of the ES-177 Minutes, but had not received any response. Prior to and after those appeals, the Council asked for reconsideration of the underlying
Sunshine Law issue, and cited to three additional executive meeting purposes. OIP found no basis for reconsideration of the Sunshine Law question because the ES-177 Meeting discussions did not fall within any of the newly cited purposes. Accordingly, OIP determined that the UIPA required the Council to give the Requesters access to the Public ES-177 Minutes (the "May 20 determination").

Note here that the matter was no longer just whether or not there should have been an “open meeting” under the Sunshine Law (HRS- §92) but whether the minutes to the meeting were open records under the Uniform Information Practices Act (HRS- §92F).

The writ continues:

OIP agreed by letter dated June 9, 2005, to allow the Council a final opportunity to supplement its position. However, OIP could not agree to a "commitment of confidentiality" regarding that position, OIP only reviewed Council's subsequently offered general discussion of the attorney-client privilege and desire to discuss investigations in closed meetings, which OIP again determined insufficient to warrant reconsideration of its April 14 opinion and May 20 determination. On June 22, 2005, the Council again provided a generalized discussion of the attorney-client privilege and the Council's desire to discuss investigations in closed meetings, which OIP had previously determined was insufficient to warrant reconsideration of its April 14 opinion and May 20 determination. On July 14, 2005, the Council filed its action seeking declaratory and injunctive relief from OIP's determination that the Public ES-177 Minutes must be disclosed.

There are basically four arguments for why the ICA erred in upholding the 5th circuit court decision. We’ll list them with partial excerpts excluding much of the case law but including the pertinent statutory language and citations for those that want to understand the case the OIP is presenting and why it’s implications go far beyond ES-177, affecting the very future of the OIP itself.

I. The ICA gravely erred by affirming that Chapter 92 authorizes Council's action challenging an OIP decision to disclose a record, given chapter 92F's plain language, clear statutory scheme and legislative history that denies an agency the right to bring a court action for that purpose.

OIP believes that the ICA committed grave error in affirming circuit court jurisdiction to hear the Council's original action under chapter 92 without then limiting its review to determining applicability of that chapter. Rather, the court went further, applying its Sunshine Law interpretation to determine disclosure of a government record under both the Sunshine Law and the UIPA. Allowing an agency to bring a court action to challenge an OIP decision to disclose a government record in this matter conflicts with the plain language of § 92F-15.5, and circumvents the UIPA's underlying policy and remedial scheme and stated legislative intent clearly disallowing such agency action. In effect, the ICA decision now allows agencies to utilize the court system, delaying for years any resolution on disclosure and circumventing the legislative intent to provide the public with efficient resolution of records disputes. Given the Legislature's stated purpose of the UIPA and the policy of this state in § 92F-2, it is clear that in denying agencies the right to sue each other, the Legislature found the rights of the public to scrutinize and participate in government to outweigh an agency's ability to judicially contest disclosure of a government record.

Where a government agency denies a person access to any record, that person may appeal by judicial action under § 92F-15 or, alternatively, by administrative appeal to OIP under § 92F-15.5 (without prejudice to the right to seek judicial review). Where appeal to OIP is made, § 92F-15.5(b) directs in full as follows:

(b) If the decision is to disclose, the office of information practices shall notify the person and the agency, and the agency shall make the record available. If the denial of access is upheld, in whole or in part, the office of information practices shall, in writing, notify the person of the decision, the reasons for the decision, and the right to bring a judicial action under section 92F-15(a). (emphasis added).

OIP believes that this unambiguous language must mean that when a person appeals to OIP and OIP's decision is to disclose, an agency must generally be bound by that decision... Further, any possible ambiguity is extinguished by the Legislature's clear intent to bar agency suits against OIP over its record decision:

Your Committee wishes to emphasize that while a person has a right to bring a civil action in circuit court to appeal a denial of access to a government record, a government agency dissatisfied with an administrative ruling by the OIP does not have the right to bring an action in circuit court to contest the OIP ruling. The legislative intent for expediency and uniformity in providing access to government records would be frustrated by agencies suing each other. Conf Comm. Rep. No. 17, Haw. S. J. 763-64 (1989) (emphasis added).

Thus, the ICA's affirmation based upon a right of action arising outside of chapter 92F, despite the plain language of § 92F-15.5(b), appears to "completely ignore the obvious meaning and intent of the statute."

But the ICA did not recognize any of that and, as the OIP then says,

The Sunshine Law, in contrast to the UIPA, which provides for no agency actions (including by OIP), has a general "any person may commence an action" standard, for the purpose of requiring compliance, preventing violations, or determining applicability of part I of chapter 92. Compare HRS § 92-12(c) with § 92F-15 and -15.5(b). However, the Council here did not solely seek the court's application of a Sunshine Law provision. Its action went further, directly seeking to invalidate OIP's decision under the UIPA to disclose the ES-177 Minutes. Given the foregoing, OIP believes that finding the Sunshine Law to allow court adjudication of OIP's determination regarding the minutes cannot be reconciled with the language of § 92-15.5, its legislative history, or the UIPA's purpose and remedial scheme.

The second argument is one that shows how persistence pays off. A couple of years back, what has been called the “secret sunshine law” was “discovered”. Since then council watchdog Glenn Mickens has told the council of HRS 92-71 part of Section II of the part that contains the Sunshine Law. It states

"in the event that any political subdivision of the State shall provide by charter, ordinance or otherwise, more stringent requirements relating to mandating the openness of meetings, the more stringent provisions of said charter, ordinance, or otherwise, shall apply."

Well as fate would have it, the Kaua`i County charter has a provision 3.07(e) that says. according to the brief that “restricts the Council's use of closed meetings to (1) deliberations to confirm appointees or (2) ‘consultations with the county attorney on claims.’ (emphasis added)”

Though the charter was changed this past November by tricking people into voting to delete it under the guise of assuring that the charter “conform” with the Sunshine Law, it was in effect when ES-177 was held and a ruling releasing those minutes could also free up many of the minutes of ES meetings held before the provision took effect.

Mickens and later open government advocate Ken Taylor hounded the OIP with this matter, at first being rejected because OIP only administers Part 1 of the Sunshine Law (92-71 is in part two) but through his persistence the argument is included in the Supreme Court brief.

OIP asked

2. Assuming this action may properly be heard, the ICA gravely erred by not giving effect to the Kauai County Charter's more restrictive standard for closing a council meeting, given the plain language of § 92-71 that directs that a more stringent county standard "shall apply."

OIP did not have reason to address § 3.07E in its UIPA decision because OIP found that the Sunshine Law required the minutes to be public. OIP raised this provision to the circuit court and to the ICA to show that the Council's broadly applied attorney-client privilege to protect all its discussions with its counsel was not only contrary to the legislative intent underlying § 92- 5(a)(4) and other judicial opinions limiting to varying degrees the extent of the privilege for government attorneys, but also directly contradicted its own charter provision.

The third is really the meat of the appeal for those who object to the Kaua`i council’s penchant for going into executive session for public policy matters disguising them under a provision (HRS 92-5(a)4) that allows them to “consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities” and it’s relationship to the standard “attorney client privilege” which, the OIP says, is limited by overriding state law in the case of boards and commissions covered by the Sunshine Law.

The OIP says

3. The ICA gravely erred by failing to consider the legislative history indicating that he Legislature intentionally narrowed the attorney-client executive meeting purpose to cover only specified types of consultation between a board and its attorney.

As discussed in OIP's Opening Brief at 25-27, in 1985 the Legislature deliberately narrowed § 92-5(a)(4), the attorney-client executive meeting purpose, to apply to only limited types of consultation between a board and its attorney. As further discussed in OIP's Opening Brief at 23-30, this limitation of the attorney-client executive meeting purpose is consistent with the narrower scope of the attorney-client privilege generally when applied to government attorneys and clients in both this State and in other jurisdictions, as well as with the Sunshine Law's and the UIPA's general purpose and intent. See, e.g., HRS §§ 28-3, 92-1, and 92F-2. The ICA gravely erred by failing to consider the legislative history of § 92-5(a)(4) in deciding its scope. See Decision at 19-22. Instead, contrary to the legislative intent expressed in the 1985 amendment to § 92-5(a)(4) and the legislative mandate expressed in § 92-1 that exceptions to open meetings shall be strictly construed against closed meetings, the ICA interpreted the attorney-client executive meeting purpose broadly to encompass all discussion between the Council and its attorney in the meeting in question.

Lastly the OIP basically says "what are we here for if not this kind of determination since our oversight is plainly stated in the law and legislative intent". They say

4. The ICA gravely erred by failing to defer to OIP's interpretation of the breadth of the Sunshine Law's attorney-client executive meeting purpose under the "palpably erroneous" standard and to OIP's UIPA determination under the "abuse of discretion" standard.

One other thing of note is contained in a separate brief – the one filed by the county and upheld by the ICA. It contains a brief description of what went on in ES-177.

OIP's review of the ES[-]177 Minutes indicate[s] that the ongoing investigations discussed were limited to (1) an investigation being conducted by the County of Kauai, Board of Ethics, (2) a police investigation which had been turned over to the County of Kauai Prosecutor and (3) a proposed investigation into the termination of a KPD recruit. It is the opinion of OIP that the matters considered by the Council in ES[-]177 do not constitute "sensitive matters related to public safety or security."

Many believe that what went on was that Rapozo “went off” on Lum, Ching and/or Furtado and aired long held gripes against the department. Some of that was intimated in some of the correspondence between OIP and the county following the OIP’s review of the minutes and determination that they were public records.

It was thought by many political observers that Chair Kaipo Asing then “protected” Rapozo by fighting the release of the minutes, giving him a political Sword of Damocles to hang over Rapozo’s head should Rapozo try to maintain his rebel and maverick image, cultivated during the previous campaign

We’ll try to keep up with the case when and if it is granted review by the Supreme Court of Hawai`i. If anyone wants a copy of both documents- the OIP’s appeal and the ICA ruling- let us know at gotwindmills(at)gmail.com and we’ll get them to you.

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The powers that be will be happy to know that we’ll be taking the occasional day off during the next two months while entertaining ka mo`opuna, who’s here for the summer. We’ll try to make up for it by being twice as caustic when we do post.