Wednesday, November 23, 2011


ROOM AT THE TOP: When former County Clerk Peter Nakamura was fired- or, according to some, quit amidst council executive-session-protected investigations of various and sundry allegations of wrong doing- we didn't really expect to hear anything until the decision on a new clerk was a "done deal."

So when our sources at council services told us that ads were placed in both the local and Honolulu newspapers soliciting applications and that there were a significant number of applicants- even from the mainland- though it was nice to think that there might be a little public scrutiny of the list, we didn't hold out much hope.

And we haven't been disappointed in our pessimism.

The job description of the position of clerk is not just "the council's lackey" even though Nakamura's stint under former Chair Kaipo Asing might have given that impressions. He- or she (yeah- that'll happen)- is also the county's chief elections officer and has numerous other important public duties and responsibilities.

But of course the process- and the names of the applicants- has been a tightly held secret with closed-to-the-public, executive sessions the order of the day for review of those seeking the job.

But given the brouhaha over the release of the judicial appointment list and the Office of Information Practices' (OIP) original stance that the names should have been made public- with which a circuit court judge agreed before the judicial selection committee decided was the best policy on their part after all- we wondered if there might be enough of a public interest in release of the names of county clerk applicants to overcome the privacy concerns in the Uniform Information Practices Act (UIPA), HRS Chapter 92F.

Silly wabbit.

We gave a call to the attorney of the day at OIP and got an interesting if negatory answer. Staff Attorney Carlotta Amerino wrote:

This email responds to your telephone call to the Office of Information Practices (OIP) on November 17, 2011. You explained that the Kauai County Council is in the process of filling a vacant county clerk position and would be meeting on this matter on November 21. You asked whether you may know the names of all the applicants.

The Uniform Information Practices Act (Modified), Chapter 92F, Hawaii Revised Statutes (UIPA) requires generally that government records are available to the public. HRS section 92F-11. However, the UIPA does not require disclosure of records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy. HRS section 92F-13(1). Applications for government positions carry significant privacy interests under HRS section 92F-14(b)(4), which, when balanced against the public interest in disclosure, have often outweighed the public interest. See OIP Ltrs. No 90-14, 91-8, and 95-2. In Opinion 03-03, OIP found that a list of judicial nominees could be disclosed publicly, but that opinion was based in part upon the fact that judges have a great impact upon the public.

The UIPA also allows government agencies to withhold information if disclosure would cause the frustration of a legitimate government function. HRS section 92F-13(3). While OIP has not been asked to issue a formal opinion on your specific question, and has not discussed this matter with the County Council, it would not unreasonable for the Council to invoke the "frustration" exception if it feels that qualified applicants would not apply for government jobs if that fact is made public even for the unsuccessful applicants.

I hope this information is helpful.

Carlotta Amerino
Staff Attorney

Basically it's not really an answer because although the judicial selection process is cited, that process is detailed in both the Hawai`i State Constitution and in law and administrative rules whereas the county clerk simply serves "at the pleasure" of the council

That leaves what Amerino refers to as the "frustration" exception which says that things may be kept secret if revealing them would "frustrate a legitimate government function."

In the case of the judicial nominees, Governor Neil Abercrombie claimed the frustration clause in that it would have a "chilling effect" on attorneys causing many to decline to apply. But even that doesn't seem to be the case with the county attorney position any more than any other job where one might not want their current employer to know they were seeking another job. And, of course, in any event, the court struck down such an exception in the judicial selection case.

We haven't formally requested the list of applicants mostly because it would take at least a few weeks just to get an answer from the council- which we know would be "no" anyway- and then we would have to submit that refusal to the OIP for disposition and they are so "busy" and toothless these days we'd be lucky to get a "formal opinion" at all and if we did it could take months if not years.

And by then, most likely we'll have a new clerk.

It may be best to wait for the appointment and then ask for the list- we might have more of a chance then because there would be no way the release could effect the outcome due to political pressures, which Amerino suggested to us on the phone might be applicable in this situation.

It's been noted in national surveys that Hawai`i has one of the best sunshine/open records laws in the country- and one of the worst records for actually keeping meetings open and releasing records.

The minotaur thinks the labyrinth is working just the way it's been designed, thank you very much.

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