WHEN THE CAT’S AWAY...:

WHEN THE CAT’S AWAY... : Anyone reading today’s local newspaper coverage of the council interviews of prospective board and commission (B&C) members would think that the session was rather mundane and that, like a popular t-shirt says “Experts agree- everything is A-Okay” down at the county buildings.

But of course when you look at the byline you find out why.

Reporter Mike Levine- the paper’s government beat reporter who, with Editor Nathan Eagle has spent the last year building back the credibility of the paper after a thirty-plus year lull- is apparently on vacation or taking a long weekend and the vapid Paul Curtis was there to report how smoothly everything went, with no mention of Rob Abrew’s testimony and the promises of some councilmembers to look into the matters that he raised before today’s scheduled confirmation votes.

We’ve pretty much outlined the problems with the lack of adherence to some county charter provisions over the past two days but Abrew’s testimony details OIP opinions regarding state open records laws that the council is set to violate if they proceed without providing the public with the non-confidential disclosures contained in the applications prospective B&C members have filled out- one the council has indeed received but have not released to the public.

We’ll try to follow up tomorrow on today’s activities based on reports from Abrew but for today we’ll present his testimony verbatim as it details the issues and the law that, despite Abrew’s testimony, Curtis ignored in favor highlighting kissy-face testimony of former Judge “What Me Worry, Alfred E, Let ‘em go” Laureta and the supposedly laudable qualities of all the nominees.

Here’s Abrew’s testimony:

------

Aloha and Good morning Council Members

I would like to offer my gratitude to all our community members here today that have become the Mayor's successful applicant for a position to one of Kauai's many Boards or Commissions We are here today to complete the process that the citizens of Kauai have approved in Charter section 23.02 (B) on how the Mayor appoints and our Council approves the successful applicant's to a Board or Commission.

On behalf of The Public I must ask today that the Council defer the interview process until the public has a chance to review and publicly testify on information contained on the successful applicant's application as required by HRS 92F, THE UNIFORM INFORMATION PRACTICES ACT (MODIFIED)

In an Letter dated January 1, 2005 addressed to Former Council Member JoAnn Yukimura concerning Executive Session Interviews, the issue of public disclosure of a successful applicant's information was discussed at great length. This letter was responsible for the interviews of the successful applicant's moving from Executive Session to a Public Meeting.

This Letter was also copied and sent to Chair Asing, Former County Attorney Nakazawa and County Clerk Peter Nakamura

It stated:

The Charter provides that all members of boards and commissions shall be appointed and may be removed by the mayor, with the approval of the council.” Charter, Art. XXIII, § 23.02. It is our understanding that, in accordance with the Charter, the Mayor transmits to the Council the names of the appointees for the Council’s approval. A copy of each appointee’s application for appointment to the board or commission is also transmitted to the Council. The application includes, among other things, the appointee’s name and employer, a summary of the appointee’s major work experience, and a statement of the applicant’s understanding of the primary duties of the appointment.

Although the UIPA recognizes that individuals have a significant privacy interest in “applications” and “nominations” for “appointment to a governmental position,” the OIP has previously opined that this significant privacy interest is outweighed by the public interest in the application information concerning successful applicants, or nominees, because it “sheds light upon the composition, conduct, and potential conflicts of interest of government board and commission members.” OIP Op. Ltr. No. 91-8 (June 24, 1991). Therefore, the UIPA would require the disclosure of the appointees’ application information.

This is straight forward. We cant say these are only “guidelines”, this is the Law, the intent of the Legislature.

This Letter also made reference to an OIP decision made back in June 1991 (OIP Op Ltr No. 91-8)

This OIP decision was in reference to the Governor's applications for appointments to Boards and Commissions to be reviewed by the State Senate.

Below you will find some information included in that opinion. Since the OIP directly referenced this decision I took the liberty to add Mayor where it had Governor and Council in place of Senate.

*Government Record*

HRS 92F-3 Defines "Government record" means information maintained by an agency in written, auditory, visual, electronic, or other physical form.

*Successful Applicants*

*OIP 91-8*

We find that certain information about a Mayor's nomination would shed light upon the operations of government boards and commissions, and also upon the Mayor's and the Council's role in selecting board and commission members on the public's behalf.

In our opinion, the public has an interest in the application and nomination records concerning a nominee that would reveal the composition, conduct, and potential conflicts of interest of board and commission members whom the Mayor appoints with the Council's approval

We believe that this public interest would be furthered by the disclosure of a nominee's identity and the other nominee information discussed below.

The nominee's work experience required for appointment to the particular board and commission must also be disclosed to the public upon request. Under the UIPA, an individual has a significant privacy interest in the individual's "nongovernmental” employment history, except as necessary to demonstrate compliance with requirements for a particular government position," in this case, as a board or commission member.

We find that more than a "scintilla of public interest" in a nominee's qualifying work experience exists "to preclude a finding of a clearly unwarranted invasion of privacy."

We find that the UIPA requires public disclosure of a nominee's current occupation, business address, business telephone number, education and political membership due to a charter provision to keep our government to a bare political majority as possible.

The nominee's home address, home telephone number, birth date, financial information, and other information contained in the application must be kept confidential under the UIPA exception for a clearly unwarranted invasion of privacy.

*Public Access*

Under section 92F-19(a)(6), Hawaii Revised Statutes, the Mayor may disclose information, including confidential information, about a nominee to the Council that will review the nomination. When the Council receives confidential information about a nominee from the Mayor, the Council must observe the applicable restrictions on disclosure. *However, the Council will be required to publicly disclose certain nominee information under its review when the public interest in disclosure of the information outweighs the nominee's privacy interest. *

Both opinions guide us on what is public information and what is confidential in a successful applicant's application. In my opinion the last line tells us that before the Council can review the information and act to approve or not approve *the Council must disclose the non confidential successful applicant information to the public. This information should be available to the public when the agenda is posted, it was not. *

The communications from the Mayor received in the County Clerks office on 12-4-09 and 12-23-09 stated that the applications of today’s successful applicants were attached. This allowed more then enough time for the Clerks office to remove the confidential information on the application and make available to the public the information needed for the Council to review and move forward. If the applications were not attached and the Mayor did not include them, please have the Mayor send over the applications so we can move forward.

Due to time I have offered only a small portion of the information contained in the two OIP letters I mentioned. I feel to get a complete understanding of all the information supplied, the case notes, case law and Legislative intent of the UIPA you must read the opinions in their entirety. Please feel free to ask you Council Attorney their advice on if it is appropriate to move forward today with this new information supplied today.

My testimony here today is to not interfere with a process that brings members of our fine community together for public serve. But to ask questions about the process and are we doing what we can to make our government the most open and free flowing of information as possible while respecting the private lives of all in our community.

Mahalo for your time

Rob Abrew