Saturday, November 23, 2013


TEXTGATE AND 2491: THIS TIME IT'S PERSONALLY "DEVICIVE": If you want answers you have to ask questions. And if you want the right answers you need to ask the right questions.

But in the spirit of "ask me no questions, I'll tell you no lies" if you ask an incomplete question you're likely to get an incomplete answer.

When we broke the "Textgate" story last week we weren't the only ones concerned as to whether or not there were improprieties in the exchange of text messages between Mayor Bernard Carvalho Jr.'s Communications Director and chief political advisor, Beth Tokioka and then-outgoing Councilmember Nadine Nakamura- who was to become the Mayor's Managing Director, on November 1- as well as Councilmember JoAnn Yukimura, during the marathon October 16 council meeting at which Bill 2491 was passed in the wee hours of the 17th.

Were these "texts" government records and subject to disclosure under state law? In this case the answer was apparently dependent on who was doing the asking and what they asked. But when the answer came in and it was "no" we certainly weren't going to leave it to Tokioka, Carvalho and the county attorney to have asked the question the way we would have.

It seems that councilmember Gary Hooser was also concerned about the texts and sent a memo to Hizzonah basically asking "WTF?"

Here's Hooser's memo including three questions:

It has been brought to my attention and is being asserted by credible members of the community that members of the Kaua'i County Administration may have been communicating directly with a member or members of the Kaua'i County Council via numerous text messages during the active deliberation of Bill No. 2491, Draft 2 and while the Council meeting was officially in session on October 15 and 16, 2013.

Further, it is alleged that the nature of the text conversations demonstrated an intent of the County administration to influence the vote and actions of members of the Council on Bill No. 2491, Draft 2.

Please respond to the following:

1. During the October 15, 2013 Special Council Meeting in which Bill 2491, Draft 1 was being discussed, were members of the Administration who were present in the Council Chambers engaged in texting, or E-mailing Councilmembers while the meeting was in progress?

2. If the answer to #1 is "yes," was the nature of their communications such that they were intended to influence the direction of Councilmembers actions or the outcome of the deliberations? -

3. Did members of the Administrative text then Council Vice Chair Nakamura, during the Council Meeting and discuss or encourage her to encourage other Councilmembers to support a deferral of Bill No. 2491, Draft 1? A response by November 7, 2013 is requested.

Although the questions were of a general nature and just asked to confirm whether the incident took place- perhaps with a subtext of questioning the ethics rather than the legality of the texts- Carvalho, apparently in, let's call it "deep consultation" with Tokioka, chose to respond in detail, admitting, in answer to question #1 that "(y)es, some text messages were exchanged" and described the texts- pretty much as we described them but with a "nothing to see here- go back to your homes" spin to it all.

As often happens when people are asked about ethical matters, they responded with the "we didn't do anything illegal" retort. It's one of the first rules of spin- if you can't deny whatever they are saying, deny something else... as long as you deny something.

The second question, predicated on the a "yes" answer to the first, was about whether the texts "were such that they were intended to influence the outcome of Councilmembers (sic) actions or the outcome of deliberations." If there was any subtext (no pun intended) of a legal question being asked it was whether the texts may have violated the state Sunshine Law had there been a third councilmember involved, thus violating the "serial communication" rule that bans attempts to circumvent the prohibition on three or more councilmembers "deliberating toward a decision" by using a third party to communicate.

It should be pointed out that nowhere did the administration's memo address the question of whether there was or was not a third councilmember involved in the texting that day.

The answer to question #2 was non-responsive at worst, contradictory at best saying "No" but then going on to say the texts were to "clarify and reaffirm positions on the deferral" taken in previous discussions on 2491 which certainly would be part and parcel of "deliberating toward a decision."'s defines deliberation as "careful consideration before a decision."

Of course the administration isn't covered by any of the "open meeting" provisions of HRS 92- aka the state Sunshine Law- anyway and there was no mention of a third councilmember being involved. But the administration is subject to the open records provisions of HRS 92-F, the Uniform Information Practices Act (UIPA).

The third question was answered- or not answered as the case may be- much as the second. The question of whether Tokioka's texts encouraged Nakamura to support or encourage other councilmembers to support a deferral of 2491 was answered "No." But then they admitted that they had already discussed the deferral and stated that Tokioka never encourag(ed) her to make a motion to defer (emphasis added)," thus answering a different and much more restrictive question than the one that was asked.

A motion to defer brings a meeting to a grinding halt no matter what is going on and if it passes the meeting is adjourned to a later date. There is no debate or further discussion once the motion is made.

But anyway this is all the preliminary to the "one final comment" that was added, unsolicited, at the bottom of Carvalho's memo.

It says that the county attorney contacted the OIP and asked "(i)s it a violation of the sunshine law if a member of the administration texts a member of the council during a council meeting (and vice versa)?"

This rather self serving question is, as we said, impossible since the Sunshine Law pertains to meetings of "boards" such as the council, not to administration members.

But it's the second question that proves the old adage "garbage in, garbage out."

The question asked is: "Must personal (there's that equivocal word) texts sent during a council meeting be disclosed as a public record under UIPA?"

They might as well have asked the childhood conundrum "if you're flying in a canoe and your ears fall off, how many elephants can you fit in a dog house?" (the answer is, as we all know "13- ice cream has no bones) for all the clarity it contained.

But let's have fun and try to make sense of it. First of all these were not "personal" texts, there being no discussion of, let's say, family, the weather or Beth's level of angst and anger after all these years at her ex-hubby, State Representative James "Put-Your-Pants-On, Jimmy (Again)" Tokioka.

They apparently claim the texts were "personal," which could mean- take you pick of the three- 1) those made on what's commonly called a "'personal' hand-held-device," 2) those made on a "phone" bought and paid for by her "personally," or 3) those containing messages of a "personal" nature.

So when they asked the question of the Office of Information Practices (OIP), which oversees both the Sunshine Law and the UIPA, as a group of lawyers of course they answered the legal question that was asked saying:

(P)ersonal texts are not considered government records under the UIPA as long as there is no nexus between the technology used and the County. Meaning that as long as the County is not paying for the phone, does not reimburse for usage of the phone and the method of communication is not part of the County's electronic database, i.e. emails etc., then personal texts are not considered public records.

What this seemed to say to us was that someone would be permitted to get around the UIPA by simply conducting official business on their own personal texting device rather than a county-paid-for phone and storing the texts there.

So we got to wondering what would happen if we asked the question with a little more precision.

We sent an email to OIP asking three different ways whether they could get away with this. We wrote:

"I am writing to confirm what Kaua`i County official Beth Tokioka says is her understanding of an OIP position regarding texts that were sent between her and Kaua`i County Council members during the Oct 16 meeting. (See: at the very bottom).

At issue is whether a text message sent from an official's personal devices- those not owned or distributed by the county- is never subject to the UIPA even if official county business is conducted via that text. However her explanation did not precisely ask the question of whether, if official county business is conducted via a text sent on an official's personal device, that text is public information.

To make it clear, I am asking whether the UIPA can be circumvented by an official by using his or her own personal smart-phone or other texting device (not issued or paid for by the county) to conduct official county business that otherwise would be subject to disclosure."

And of course we got a response that was worthy of the query.

I am responding to your e-mail correspondence below regarding whether the Uniform Information Practices Act (Modified), chapter 92F, HRS (UIPA), can ever apply to text messages on agency employees' personal cell phones.

As you may know, the UIPA governs the public's right to inspect or obtain copies of "government records." The term "government record" is defined as "information maintained by an agency in written, auditory, visual, electronic, or other physical form." HRS Sec. 92F-3 (2012) (emphasis added). Ordinarily, text messages on a personal cell phone would not be "government records" because an agency is not maintaining them. However, if, hypothetically, an agency tries to circumvent the Quip’s public disclosure requirements by storing records on a personal cell phone, an argument could be made that these records may be considered to be maintained by the agency as government records under the UIPA.
Yours truly,
Lorna Araucanian
Staff Attorney

So is Tokioka "circumvent(ing) the UIPA's public disclosure requirements by storing records on a personal cell phone?" Given not only her somewhat pathetic attempt to deny that she was conducting official business on the phone but her attempt to get a ruling that she could store communications regarding that "official county business" on her own personal cell phone without having to provide them under the UIPA, we'd say that the case can easily be made that she was intentionally circumventing the law and should be required to provide those records pursuant to a request.

We haven't filed a formal "complaint" or asked for an OIP investigation and hope that this article will serve as one, as has happened in the past. Nor have we made an official request for the texts and gotten an official denial, even though the memo could be considered to constitute a denial.

But the sneaky and some might say sleazy way this whole affair was conducted by the administration and the fact that it took a citizen to notice what was going on and blow the whistle- without which the existence of the documents would never have been known- means we should have the right to see all official text communications regarding Bill 2491 conducted during the October 16th meeting and stored on Beth Tokioka's personal cell phone.

1 comment:

Mauibrad said...

In other jurisdictions personal email and texts of an elected official on subject matter the elected official will be voting on are covered by open records requirements. The public should be able to see the content of all those texts to and from Council members during the Council meeting.