Tuesday, June 30, 2009


ASK THE BIG DOG: The Office of Information Practices (OIP) has appealed the Intermediate Court’s denial of it’s appeal of a 5th circuit court ruling that kept the minutes of the infamous “ES-177” from pubic eyes.

The case stems from a January 2006 Kaua`i County Council closed-door meeting regarding its then-pending investigation of the Kaua`i Police Department. When the OIP told the council to give up the minutes, the council sued the OIP to stop their release.

But while we’re in receipt of the Supreme Court appeal brief we’re unable to lift quotes from the document that was also scanned in cockeyed as it was sent to us.

So while we’re awaiting a usable copy to go into some depth on the case we’ll preview a couple of relevant matters in the brief.

People keep wondering what the heck is in the minutes that would cause such a battle- one in which the OIP maintains the council can’t even sue them in the first place and the council digging in to keep matter from the public eye.

What it seems to come down to is that the lower courts have ruled solely on the basis of the Sunshine Law, HRS 92. It deals solely with open meetings and allows the council to meet to “consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities”.

Since it’s obviously too late to stop the council from going into executive session, so the original request was for the minutes to the meeting.

The OIP says that the “minutes” of those meetings fall not under the sunshine Law but under the Unified Information Practices Act (UIPA) HRS 92F which deal with open records since the minutes are by definition records.

The UIPA provides strict and specific limits as to what specific kinds of information can be withheld and also specifically denies the council and covered agencies the right to go to court to appeal OIP rulings and allows only for “persons” to go to court to appeal the OIP’s denial of access to records.

But more importantly the brief argues that the UIPA also apparently limits the county-claimed broad use of the private standards of “attorney client privilege” and places limitation on that privilege for state and county agencies covered by the law.

We’ll quote some law on that when we get the brief in usable form but in a nutshell the case has broad implications for the Kaua`i council’s penchant for using the above quoted Sunshine Law passage- “to consult with the board's attorney”- to go into executive session at the drop of a hat to discuss sensitive political issues by bringing in their attorney and asking a legal question or two.

Part of the OIP case is as to whether the council even has “standing” since the law is pretty explicit- and the legislative committee report on the UIPA specifically states that- the idea was to not allow covered agencies to appeal OIP rulings even though “persons” who were denied records could go to circuit court.

But assuming the court rejects that argument as the lower courts have (although according to the OIP brief they didn’t address the matter and relied only on the Sunshine Law, as the county highlighted) the OIP says that the intent of the Sunshine Law, read with UIPA, was to limit the attorney-client privilege that applies to private individuals and organizations.

That is a contention which would cause the county to have to limit when it goes into executive session if it doesn’t want the minutes- which are a records under UIPA- released.

We’ll get into it more when we get a clean copy because there is a lot of information that wasn’t previously available about the case in the Supreme Court appeal including a description from the county’s intermediate court of appeals filing describing what they say happened in ES-177.

But for now the important part is that if the Supreme Court looks at the law in full it may mean an end to the council’s ability to discuss private policy behind closed doors as we’ve detailed in this space for the last year and a half.

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