Officials in the state Office of Information Practices have accused members of the Kaua‘i County Council of violating state law for not releasing minutes of an executive session held in January to supposedly discuss an investigation into the Kaua‘i Police
Officials in the state Office of Information Practices have accused members of the Kaua‘i County Council of violating state law for not releasing minutes of an executive session held in January to supposedly discuss an investigation into the Kaua‘i Police Department.
County officials have repeatedly refused to release the minutes, and are now saying they will not release any of the minutes until state OIP attorneys tell them which parts of the minutes they should release.
Earlier, OIP leaders said county officials should release all of the minutes. So far, county officials have ignored that advice.
After finding members of the council violated the state’s Sunshine Law (open-meetings law) last month when they held the January 20 executive session (ES 177), in private, OIP officials said in a May 18 letter to County Clerk Peter Nakamura that the county is violating state administrative rules by not releasing the information to members of the public.
Two Kaua‘i residents, Police Commission Chair Michael Ching and Richard Stauber, requested the meeting minutes in mid-April after the OIP’s original decision was released on April 14. OIP Staff Attorney Wintehn K. T. Park decided that the minutes should be released immediately because of the Sunshine-Law violation.
The Garden Island requested the minutes this week and, according to state law, the county clerk has 10 business days to respond to the newspaper request.
But Nakamura has been advised by lawyers in the Office of the County Attorney to place Ching and Stauber’s request on hold as the attorneys appeal the ruling, through the state Attorney General or the state Office of Disciplinary Counsel in the state Judiciary.
Any delay, the OIP leaders contend, is a violation of Hawai‘i law. The OIP leaders, in a letter dated May 23 to lawyers in the Office of the County Attorney, said Hawai‘i law specifically states that the OIP is the “statutory authority” on whether or not to release the minutes. And county officials are violating state laws, namely 2-71-13 and 14 of Hawaii Administrative Rules, by not abiding by their decision, according to OIP officials.
Meanwhile, officials in the OIP and Office of the County Attorney have peppered each other with at least a half-dozen letters, multiple phone calls, and one face-to-face meeting about the ES 177 minutes.
And a few more rounds, including a lawsuit, may have to take place before a decision is finally made.
While the OIP attorneys stand firm, officials in the Office of the County Attorney contend that to release the minutes would violate attorney-client-privilege regulations and, perhaps, federal and state privacy laws.
Staff in the Office of the County Attorney contend that the discussion in ES 177 falls under attorney-client privilege, which is protected as private under state and federal law. Only a vote by members of the council to waive the privilege will allow the clerk to release the documents, County Attorney Lani Nakazawa said in a letter to OIP.
A County Attorney letter dated Monday now asks OIP leaders to identify which portions of the transcripts they believe should be released.
“Once the clarification is received, our office will advise the Council as to which information must be disclosed, and which information can be disclosed (e.g. attorney-client privileged information) by the Council, upon an affirmative vote by the majority,” wrote Deputy Attorney General Waiyee Carmen Wong in an e-mail response to questions posed by The Garden Island.
At the same time, Nakazawa wrote to leaders in the Office of Disciplinary Counsel, which oversees all the lawyers in the state, to render their opinion on whether lawyers in the Office of the County Attorney need specific authorization to release attorney-client information.
“The right to waive the attorney-client privilege resides with the County Council,” Wong wrote.
“Each individual is not able to unilaterally waive without an affirmative vote of the majority.”
But the OIP leaders decided a month ago that very little discussed in ES 177 was privileged.
In the April 14 letter to Ching, Park said that using executive sessions to discuss attorney-client-privileged communications should be “narrowly construed,” and only used when professional legal advice is being given to a client.
Certain “limited” information discussed in January during ES 177 falls under attorney-client communications, but not the majority of the discussion, Park wrote. Therefore, county officials should have released the minutes immediately.
ES 177 first came to light a month ago, when Ching asked for an opinion over possible conflict between lawyers representing both members of the County Council and Police Commission.
OIP leaders, when they reviewed minutes from the executive session, found that members of the council violated the Sunshine Law by having one announced purpose of the meeting (to discuss a possible KPD investigation), and then discussing something completely different in the closed session.
“Upon reviewing the ES 177 minutes, there is no indication that the Council considered or discussed any such investigations described by the County Attorney” and put forth in the agenda, Park wrote in his April 14 decision.
Other investigations, which should have been discussed in public, were discussed: the investigation being conducted by the County of Kaua‘i Board of Ethics; a police investigation which had been turned over to the county Office of the Prosecuting Attorney; and a proposed investigation into the termination (later said to be a resignation) of a KPD recruit, the OIP decision stated.
Wong, in an e-mail reply to questions from The Garden Island, said that OIP attorney’s opinion did not completely consider the “well-respected protection of attorney-client communications, as well as the Hawai‘i Rules of Professional Conduct.”
Wong’s e-mail continued that private personnel issues were discussed in the session, and that those should have been considered in the opinion as well.
She added that the decision may have a far-reaching impact on other county legal matters, as the county attorney would be forced to release privileged information without the approval of her client.
“Our office is continuing a dialogue with the state Attorney General’s office, as well as the Office of Disciplinary Counsel of (the) Hawai‘i Supreme Court, to clarify these matters,” Wong wrote, “as the OIP opinion will have an impact on how future legal representations can be provided for any County boards and commissions.”
But long-time residents who have followed the Kaua‘i County Council can never remember executive-session minutes of the Kaua‘i County Council being released to the public, despite the Sunshine Law. No one is sure, however, how many times people have asked.
In one case, former Honolulu Star-Bulletin Kaua‘i reporter Anthony Sommer sued county officials to get minutes from a 2003 executive session after a year of asking for them.
That lawsuit is still pending.
According to state law, the county clerk must respond to a request within 10 business days. In this case, with the OIP decision already handed down, the clerk had five further days to release the information.
But it’s been a month since Stauber and Ching requested their copies within days of the April 14 decision, with no release of minutes yet.
- Tom Finnegan, staff writer, may be reached at 245-3681 (ext. 252) or tfinnegan@pulitzer.net.
