Friday, January 8, 2010



(PNN) -- To the surprise of few if any, the Kaua`i County Council ignored state law and two Office of Information Practices (OIP) directives in refusing to provide the public with certain information contained in the applications of some 21 nominees for positions on Board and Commissions (B&C) before confirming most of them at Wednesday’s council meeting.

The confirmations came despite the detailed testimony from good governance activist Rob Abrew- posted Wednesday in this space- documenting how OIP had twice explained the importance of the public interest (over privacy concerns) in receiving the information contained in the applications of prospective B&C members before they are confirmed.

After consulting with the county attorney during a recess, Councilperson Lani Kawahara promised to send a communication to the Office of B&C (OBC) asking them to look into the matter, But according to Abrew if and when the information is made available it will be “too late” to be useful in testifying about specific applicants.

Abrew and council watcher Glenn Mickens both told PNN that during a recess in the meeting Councilperson Jay Furfaro told them that the council need not follow OIP directions because “the OIP can be wrong” as evidenced by the council winning their lawsuit against the county over the ES (executive session) 177 case.

The county’s recent victory in the “ES-177” lawsuit was related to OIP’s authority over open meetings or “sunshine law" (HRS 92 section I) matters, not the open records or the Uniform Information Practices Act (UIPA HRS 92F) matters where the law is specific in granting the OIP the authority to decide which should prevail privacy vs. pubic interest matters.

The OIP sought to define the ES-177 dispute as a matter of UIPA law because it involved the release of executive session minutes, a “record”. But the Hawai`i Supreme Count ruled that it was an open meetings matter, because it was related to an open meeting issue.

The OIP has said that because of the ruling it will no longer release “formal opinions” on sunshine issues but will continue in it’s role in determining UIPA matters

The applications were made available to the council but were not released to the public with councilmembers contending that it was a matter for the OBC to decide even though the OIP specifically instructed the council itself to release the material.

According to Abrew’s testimony:

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.

The resolutions to confirm a handful of the applicants was deferred pending a rescheduling of their missed interviews but there is no indication whether the information in their applications would be forthcoming.

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