Sunday, March 16, 2008


HE'LL NEVER MISS THEM: National Sunshine Week begins today but our Sunshine and open records (UIPA) laws, Hawai`i HRS 92 and 92F respectively, are apparently dead due to the httpbizarre use of “attorney –client privilege”, a trick that started on Kaua`i and has now been adopted and abused by Governor Lingle and her Attorney General Mark Bennett.

Our Sunshine Law clearly sets how public policy meetings and records are to be publicly available with a few specific exceptions that delineate how certain legal, privacy and personnel uses are protected from public view.

HRS 92-1, Declaration of Policy and Intent, states that “the formation and conduct of public policy - the discussions, deliberations, decisions, and action of governmental agencies - shall be conducted as openly as possible.” while 92-5(a)4 allows bodies “(t)o consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities” in secret.

Nowhere does Hawai`i law allow for public policy discussions by elected officials to be protected from public disclosure nor does it allow public policy opinions of governmental attorneys to be kept secret.

Nowhere in the Sunshine Law do the words “attorney-client privilege” appear and that’s because of the intent of the law as stated is that public policy deliberations and decisions must remain open to the public.

No one in government- not County Attorneys (CA), Corporation Consuls (CC) nor Attorneys General (AG) had ever thought to use the attorney-client privilege to shield public policy from public view until Kaua`i Mayor Bryan Baptiste’s County Attorney Lani Nakazawa made it up in 2003.

But once they did and seemed to get away with it the Lingle administration and Bennett pounced on it.

Attorney-client privilege clearly is for an attorney-client relationships that under state law specifically excludes matters of public policy which “should be, in a democracy as open as possible” if the word intent and legislative history of the Sunshine and Uniform Information Practices Acts are to have any effect of law at all.

Public policy deliberation and decision making are clearly excluded from any attorney- client privilege that may be needed by either an individual or a legislative body who needs legal advice to deal with an actual lawsuit or personal legal jeopardy- but not for the legal ramifications of public policy advice from attorneys.

It does not exclude just anything that is done in the presence of an attorney and certainly not official public policy opinions a CA CC or AG.

But what with the nebulous “executive privilege” claims that were made up by Presidents like Tricky Dickey Nixon- words that do not appear in the U.S or any state constitution- anything that an administration wants to keep secret is kept secret anyway, at least federally.

Courts have commonly called shenanigans on these executives privileges. The Hawai`i Supreme Court has not ruled on whether any attorney-client or “executive privilege”- something the Lingle administration has actually claimed- exists especially for the public policy deliberations and decisions government-employed crooks may have used to hide their corruption.

It’s time for a change but the legislature may never do it and we don’t have the right to do it by the ballot because we are the only state west of the Rockies to not have Initiative and Referendum, much less the ability to put a constitutional amendment on the ballot.

Happy Sunshine Week... don’t worry about us- we’ll just sit here in the dark.

No comments: