The battle over access to certain Kaua‘i County Council executive-session minutes took a decidedly harder edge last week, as the state Office of Information Practices gave the County Attorney an ultimatum, Friday, June 3, to produce the minutes to members
The battle over access to certain Kaua‘i County Council executive-session minutes took a decidedly harder edge last week, as the state Office of Information Practices gave the County Attorney an ultimatum, Friday, June 3, to produce the minutes to members of the public who have requested them.
Instead of releasing them, though, lawyers in the Office of the County Attorney, on the eve of the deadline, fired a letter back to OIP leaders, accusing the office of ignoring the county legal officials’ requests for help, and subjecting them to possible legal liability.
A lawsuit becomes more and more of a possibility as the two sides continue to bicker over whether to release minutes of a Jan. 20 County Council executive-session meeting (ES 177), where a possible investigation into the Kaua‘i Police Department was supposed to be the topic.
But an OIP lawyer decided in April that the meeting had nothing to do with a possible councilmember investigation of KPD officials, and violated the state’s sunshine law. They ordered County Clerk Peter Nakamura to release the documents, but Nakamura, apparently upon advice from lawyers in the Office of the County Attorney, has yet to do so.
Two Kaua‘i residents, along with The Garden Island, have made formal requests for the minutes, but have yet to receive even a confirmation that their letters were taken under advisement.
Instead, the county and state officials’ letters back and forth have become more harsh in tone and accusatory in nature.
County officials accused OIP leaders of rushing to judgment on their ES 177 ruling, and putting county officials at legal risk by failing to keep confidential information out of the public eye, and then producing “erroneous information (including information about sensitive personnel matters)” that has “potentially subjected the County to liability,” County Attorney Lani Nakazawa wrote to OIP leaders Thursday.
Nakazawa, in the most recent in a string of letters to OIP leaders, said her opinion is that the ES 177 meeting minutes should remain completely out of the public eye, because the meeting has attorney-client privilege since members of the County Council and representatives of the Office of the County Attorney were the only ones present.
But, in the same letter, Nakazawa asked OIP leaders to make a decision on what needs to be confidential, and then accuses the OIP leaders of “neglecting an opportunity to educate the County and its agencies” about what should be redacted (blacked out in any minutes released to the public).
The OIP leaders, in the original April decision accusing county leaders of breaking the sunshine law, said specifically that “only an extremely limited portion of the discussion that occurred during ES 177 can reasonably fall within the attorney-client privilege,” wrote OIP Staff Attorney Wintehn K.T. Park.
Park continued that, only when “professional legal services to the Council” have been rendered, can the attorney-client privilege be invoked.
Park’s boss, OIP Director Les Kondo, has further supported that decision, and refused to reconsider in subsequent letters back to Nakazawa. And he said in a letter dated May 27 that, since county officials have made no reasonable effort to respond to those seeking the minutes anyway, “we do not believe it is appropriate for the County to pass its statutory responsibility to us.”
Nakazawa has turned to leaders in other state offices, namely those in the Department of the Attorney General and state Judiciary’s Office of Disciplinary Counsel, requesting they give their opinions on what should be contained under attorney-client privilege.
But OIP leaders have repeatedly stated that their decision is final, and that any delay constitutes a violation of state law.
Kondo, in the May 27 letter, state that OIP officials, “not the Department of the Attorney General or the Office of Disciplinary Counsel, is charged with overseeing the Sunshine Law and the Uniform Information Practices Act…and where we have determined that a record is public, the County is required by law to allow access to that record.”
Asked whether a rumored meeting between Nakazawa and lawyers in the state Department of the Attorney General produced any results, Deputy County Attorney Waiyee Carmen Wong said Thursday that the attorney general has “taken the matter under advisement.”
Still, Nakazawa countered that, while the county “will honor its obligations” under the sunshine law, they will not and cannot legally and ethically release information they believe to be privileged and private.
They also contend that much discussed in the meeting was both sensitive employee matters and matters under private investigation.
But OIP leaders have repeatedly said that, because county leaders did not specifically conduct the meeting for that intended purpose, they could not hold that meeting. According to the sunshine law, specific privacy issues do not give county officials the right to hold executive sessions, Kondo wrote.
An executive session is a part of a meeting that is closed to the public.
Some members of the public have begun to openly wonder what is so important that lawyers in the Office of the County Attorney would defy leaders in a state office so publicly.
In a letter to the editor published Wednesday, Richard Stauber, who has requested the ES 177 minutes, asked, “What are they hiding?”
A more pertinent question may be, is this the county‘s policy — to fight all requests for County Council executive-session minutes?
Former Honolulu Star-Bulletin journalist Anthony Sommer also received an OIP opinion on a request for executive-session minutes. But Sommer was forced to sue county leaders in Fifth Circuit Court for the minutes to another executive session. That lawsuit is still pending.
Wong said that, to her knowledge, no member of the public has ever received the minutes.
No one is sure, however, how many people have asked, and been denied, executive-session minutes.
