Section 92 of Hawai‘i Revised Statutes expresses what is generally known as the Sunshine Law and sets forth the policy of the state that governmental affairs shall be conducted as openly as possible. It provides that all meetings of the
Section 92 of Hawai‘i Revised Statutes expresses what is generally known as the Sunshine Law and sets forth the policy of the state that governmental affairs shall be conducted as openly as possible. It provides that all meetings of the county’s Boards and Commissions, including the County Council, should be open to the public except for eight enumerated situations where confidentiality may be allowed and it states the right of citizens to obtain governmental records.
The history of Kaua‘i County government’s relationship with the Sunshine Law has been one of use and, in the view of many, abuse.
The council propensity for secrecy during the years that Kaipo Asing was council chair sharply accelerated and in this eight-year period the council held over 300 executive sessions. The council also orchestrated a removal of the pesky (?) charter requirement that such meetings could only be held for discussing claims. To his credit Jay Furfaro, the new chair, has greatly reduced this pace. During his chairmanship the council has held no executive sessions
The apex of the council’s penchant for conducting its business in secret sessions probably occurred in the episode of the county’s efforts to terminate K. C. Lum as police chief. One of the related executive sessions held by the council — the rather infamous number 177 — was submitted to the Office of Information Practices, the state agency responsible for the administration of the Sunshine Law, which found the session was not properly justified and ordered it to be made public. The county sued the office to protect the secrecy of the session. As is its won’t in matters of this type the Kaua‘i Fifth Circuit Court routinely upheld the county. On appeal the Intermediate Appeals Court determined that the quite clear statutory language authorizing the office to make the decision it did was trumped by the attorney client privilege asserted by the county. While that decision was vigorously criticized it remains the law and it has served to emasculate the office’s powers.
HRS Section 92-5 sets forth the eight situations where executive sessions can lawfully be held. In most instances the exceptions are reasonable and appropriate to preserve needed privacy or secrecy. The most frequently invoked exceptions are the ones authorizing consultations with the agency’s attorneys and protecting personal privacy. The practices by the county in certain cases are open to question:
The law requires that the matters to be discussed in the executive session are to be identified with reasonable clarity. As will be noted below a settlement agreement was apparently authorized at an executive session where the notice provided it was to be about “expansion of the landfill and related matters”. It can hardly be said that the public had reasonable notice of a major commitment by the notice given.
The law provides an exception for sessions “to consult with the board’s attorney” . Often the session is sought by the County Attorney’s office to provide a briefing as to the legal issues involved in a matter. The law infers that the consultation is to be initiated by the board, not the attorney.
The law provides that minutes of the executive sessions are to be kept, but may be held in confidence for so long but only for so long as their release would not defeat the purpose of the session. It is of interest that the county has never voluntarily released the minutes of an executive session.
While it may be said that the county has circumvented the Sunshine Law in some respects, it has found it useful in others.
For example, in October 2009 the county entered into an agreement with Sunrise Capital, the operator of a shrimp farm adjacent to the Kekaha landfill, under which Sunrise agreed to end a contested case which was delaying a further expansion of the landfill. The case contained Sunrise’s claim that the landfill was responsible for infections occurring at the shrimp farm. Related to the agreement, the county council convened three executive session meetings whose notices declared that they were as to “expansion of the Kekaha landfill and related matters” Under the agreement the county agreed to reimburse Sunrise $250,000 for costs incurred in risk mitigation measures. The parties agreed that the agreement would be kept strictly confidential except as disclosures might be required under the Sunshine Law. In the agreement the county certified that procedures required for making the payments had been taken.
But evidently all was not resolved. In the almost one-and-a-half years since the agreement circumstances have changed and it appears the deal is unraveling. Early this year councilmember Bynum introduced Bill 2397 seeking a budget change for $417,000 relating to the Kekaha landfill operations including the shrimp farm matter. Private citizens were urged to file an information request under Section 92 F which would be necessary to break the confidentiality requirement and make public the 2009 agreement. Now, with the confidentiality requirement ended, the council will be able to discuss the issues openly. Secrecy has its costs.
The Sunshine Law was intended to make the administration of government more open while protecting confidentiality of certain matters. It is dubious that on Kaua‘i our government has fully honored that noble purpose.
• Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.
