A potentially precedent-setting civil case in which the county is suing the state’s open government office might avoid trial, as Circuit Judge Kathleen Watanabe has taken the case under review. The County of Kaua‘i v. the Office of Information Practices
A potentially precedent-setting civil case in which the county is suing the state’s open government office might avoid trial, as Circuit Judge Kathleen Watanabe has taken the case under review.
The County of Kaua‘i v. the Office of Information Practices was originally slated to go before Watanabe at 1 p.m. yesterday for the defendant’s motion for summary judgment, but was taken off-calendar, as attorneys are submitting cross-motions that don’t require live witness testimony.
The case is in the hands of the courts because the OIP, which interprets the state’s open meetings and open records laws, doesn’t have any enforcement power.
In addition to reviewing the briefings, Watanabe will conduct an “in camera” review of the minutes that are the source of the lawsuit.
Gail Cosgrove, one of the attorneys representing the OIP, said the judicial review isn’t out of the ordinary, as the case is built on facts presented by both sides and its judgment therefore could be determined as an interpretation of law.
The civil case was brought by the county when it countered an OIP decision that the Kaua‘i County Council should reveal executive session minutes from a January 2005 meeting.
Brought into question in the case is threefold: whether the County Council appropriately determined its meeting should convene behind closed doors, whether any part of the minutes from that meeting should be made public and whether the County Council is the entity charged with the task of launching an investigation into the Kauai Police Department.
In an e-mail dated Jan. 26, 2005, filed as court exhibit B, Former Police Commission Chair Michael Ching queried the OIP for clarification on the matter.
“As the chairperson of the Kaua‘i Police Commission, I objected to the council investigating the police department,” Ching states.
“Due to administrative and customary practice, the Police Commission generally investigates those issues.”
Ching followed up with a March 4 letter stating his Jan. 26, 2005, query was filed “as an individual and not as my capacity as the chairman of the Police Commission,” adding, “in other words, I have not taken this issue to the full commission for a vote as to whether the board wanted to file an official complaint. No individual may file a complaint using the board without authorization.”
The county’s arguments against releasing the minutes to the public include that specific matters were discussed regarding an investigation within the Kaua‘i Police Department, “including anecdotal complaints about the department or individual officers.”
The county’s argument continues that were such complaints against the police to be rendered unfounded, “the integrity of the officers and department will be irreparably harmed by the premature disclosure.”
In its motion for summary judgment, attorneys for the OIP allege that is an overstatement, alluding to the transcript of the executive session they reviewed.
“The transcript revealed no Council consideration of any information required to be kept confidential by law,” the OIP argument states. “The OIP also advised the Council that the Sunshine Law does not allow the Council to go into an executive meeting to ‘minimize the inadvertent violation of a person’s privacy rights.’”
In a letter dated June 8, 2005, the OIP demanded that the county release the minutes by June 9, 2005, identifying three lines which could be redacted as privileged attorney client communication.
That, the county suggests, indicates that the OIP was delayed in suggesting portions could be blacked-out before being released to the public.
In addition to clarifying the roles of the OIP and various county entities, the ultimate decision on the matter also should help provide clarification as to whether the court has jurisdiction to decide what the impact of an OIP opinion is, Cosgrove said.
“In our opinion, the Legislature never intended for counties to be able to sue the OIP,” Cosgrove said. “Having transparency in government is fundamental to our democratic process.”
• Amanda C. Gregg, assistant editor/staff writer, can be reached at 245-3681 (ext. 252) or agregg@kauaipubco.com
