When Lani Nakazawa became the county attorney in 2002 she directed that communications from that office to county officials should be considered subject to attorney-client privilege. Although under the law clients are entitled to waive the privilege and release the
When Lani Nakazawa became the county attorney in 2002 she directed that communications from that office to county officials should be considered subject to attorney-client privilege. Although under the law clients are entitled to waive the privilege and release the information given, to try to ensure their privacy she specifically encouraged the officials to refrain from this disclosure. Our present county attorney, Matthew Pyun Jr., has continued these practices. In consequence of these steps it has been almost impossible for members of the public to learn about the advice that the county attorney’s office has been giving.
This reclusive secrecy does not prevail with our state government. HRS 28-3 provides that the attorney general shall file a copy of each opinion on questions of law in public archives within three days of the date it is issued. The law goes on to require that such opinions shall be available for public inspection.
The state legal requirements are in keeping with the policy expressed in the Sunshine Law that proclaims that opening up governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public interest.
It is instructive to look at a couple of recent illustrations of the effect of the county attorney’s policies.
For several months members of the public have been questioning the propriety of the County Council’s holding closed executive sessions. They cite Section 3.07E of the Kauai Charter which declares generally that council meetings shall be open except for consultation with the county attorney on claims. The council has been having executive meetings on topics without apparent connection to any claim. Last September a council member acting on his own initiative stated that he would obtain an opinion from the county attorney about the contention that Section 3.07E was applicable. Later he claimed that he received the opinion and it refuted the contention but he then waffled and said that council approval would be required for him to release it. In November the county attorney’s office made a request to the state Office of Information Practices, the agency established to interpret the Sunshine Law provisions, as to 3.07E. In January the OIP issued its opinion indicating that 3.07 E was applicable in restricting council executive sessions. Isn’t it most peculiar that the county attorney apparently offered its opinion to the council member, but later sought an expression from the OIP on the same point? If in fact there was any county attorney opinion given it remains hidden from public view.
Charter Section 20.02 D says that no officer or employee of the county shall appear in behalf of private interests before any board, commission or agency of the county. This language seems quite straightforward and clear. The chair of the Charter Review Commission who is considered a county officer has been representing clients before the Planning Commission and the County Council. He filed a ruling request with the county Board of Ethics as to whether his actions were in violation of 20.02D. The board is an agency that acts with extreme hesitancy in restricting any county official and was unwilling to rely on the plain language of the Charter provision, so it is seeking an opinion from the county attorney’s office. In the past the board has received opinions from the county attorney and asserting that they are protected by attorney-client privilege has not disclosed their content. It will be very interesting to see what the board does with the opinion now being requested.
These protections of secrecy are regular in Kaua‘i, but do not generally occur in other locations. While there may be a justifiable basis for shielding legal opinions given in cases of pending or threatened litigations or claims in order to safeguard strategy considerations, opinions of the type mentioned in the illustrations described are essentially interpretations of written laws. The laws involved are easily understandable. They are not complex and no exotic skill of a lawyer is required for their analysis. There is simply no valid reason why the construction given by the county’s attorneys to the meaning of laws should not be known by members of the public.
Too much of the conduct of our county officials is shrouded in secrecy. Despite specific laws, obtaining even basic information about county transaction and commitments is difficult and time consuming and sometimes just not available. For example, for many months members of the public as well as members of our County Council have been seeking information from the county administration as to the costs of the Eastside walking path. Precious little has been forthcoming although the amounts involved are very substantial.
A thorough spring housecleaning is in order, but the existing attitude of our top officials to treat citizens as pests when they want some answers is likely to continue. Our administration seems to believe it must withhold disclosure of practices that should see the light of day. Because of this view they won’t. Citizens rights are being willfully disregarded.
• Walter Lewis is a resident of Princeville and writes a bi-weekly column for The Garden Island.
