In Our Voices for Thursday – January 05, 2006

• County letting less Sunshine in

County letting less Sunshine in

Here on Kaua’i lawsuits are pending over open records issues related to the Kaua’i County Council. Those suits stem from the definition of what constitutes an executive session during a public meeting. The issue is not whether executive sessions are open to the public per se, because they are not, but whether the records of those executive sessions should be released to the public. Hawai’i Sunshine Law exempts the release of executive session minutes if they deal with personnel issues or pending litigation that would open the agency or governmental body to further liability. There is wiggle room for governing bodies, during public meetings, to have private discussion.

Those the lawsuits on Kaua’i are seeking minutes from executive sessions of the county council they feel fall within the parameters de. ned by the state legislature in the Sunshine Law. The litigation involves two residents of Kaua’i, Raymond Chuan and Walter Lewis, the former Police Commission chair Michael Ching, and the state Office of Information Practices. Chuan and Lewis are seeking minutes from meetings dating all the way back to 2002. The county of Kaua’i is suing the OIP over an opinion that office issued in early 2005 stating the county must make records of an improperly convened meeting in January 2005 public. Ching’s lawsuit also stems from getting the minutes to that meeting.

The county contested the opinion of the OIP to the circuit court, even though the Hawaii Revised Statutes do not permit OIP opinions to be contested. The OIP regulates record requests, while the Attorney General’s office is responsible for enforcing Sunshine Laws.

A spokesperson from the OIP says the outcome of the county lawsuit, now that it is being considered, may shift the basis of OIP decisions from the legislature’s definition to interpretation in the courts, something the legislature hoped to avoid so that agencies were not suing agencies.

Attorney for the county in the lawsuit, David Minkin, feels if this lawsuit is successful it will set precedent for the courts to be another set of eyes when it comes to Sunshine Law issues.

Rather than suing the office of the OIP, the county should have gone to the state legislature to amend the statute, said the OIP spokesman. This is the first time anyone has challenged the OIP in court, said Minkin.

Regardless of the outcome of the county lawsuit against the OIP, or the lawsuits against the county, civic government on Kaua’i should move toward an attitude of openness and accountability.

If Sunshine Law opinions by the OIP now get challenged in court, and in effect change its capacity to regulate how the public acquires records, that is a dangerous direction to be heading. It is an independent government agency, not an advocate of the media, but an advocate for open government.

A better course would be to make records available to the public. Especially if the law says they should be released. If the minutes address issues spelled out in open records law that exempt their release, that is one thing, but if the county is simply trying keep minutes from the public, that is wrong. What is the county trying to hide by not releasing them?

The county prosecutor, under the statutes, has the ability to prosecute violators of Sunshine Laws. If the OIP is neutered by court cases, then prosecution may be one of the last remaining options for open records advocates within the realm of public governing bodies on Kaua’i. And that is something that has never happened on the island.


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