The Housing Finance and Development Corp., which works with developers on affordable housing projects, keeps details about negotiated proposals confidential until its board of directors authorizes the deals.
The HFDC policy is intended to prevent disclosure of information that could hamper the state's ability to negotiate the best deals possible for taxpayers.
But it also raises the question of whether taxpayers are denied opportunities to evaluate proposals involving millions of dollars in public funds before the plans become final.
Desmond Byrne, chairman of Common Cause Hawaii, said the public should have that chance.
What's more, any document discussed at an open meeting should be available to the public so people can follow the discussion, Byrne said.
"Otherwise, you're completely left out," he said. "You don't know what's happening."
HFDC spokesman George White, however, said his agency's policy balances the public's right to know with the state's ability to negotiate effectively on behalf of taxpayers.
"How can government negotiate if other parties know what you're holding in your hand?" White asked.
The Star-Bulletin recently questioned the policy when HFDC refused to provide a copy of a staff recommendation about a proposed $132 million Kapolei housing project being discussed at an April 12 public meeting.
Even as board members were questioning aspects of the recommendation, the public was unable to see the document under review.
Once the board unanimously approved the recommendation, selecting Makai Villages Partnership as developer of the 653-unit project, the agency provided a copy. Among items in the recommendation is a state loan of up to $67 million.
The Kapolei project still is subject to negotiation of a development agreement and, in the case of a loan, a lending agreement. Neither, however, will be subject to a public hearing.
White said staff recommendations to the board are considered internal working documents. Because the board can make changes or decide not to consider the recommendations, premature release could compromise the agency's position or be mislead ing, he said.
If someone wants information about a proposal on an upcoming board meeting's agenda, he or she can contact HFDC, White said. Some information may be releaseable, though White acknowledged that details related to a negotiated deal probably would not be.
Asked what recourse the public would have if they thought HFDC negotiated a lousy deal, White said people could contact legislators and the governor's office, using the specific deal to comment on overall accountability. But he acknowledged that the public had little recourse to challenge an individual deal after-the-fact.
Going to court, however, is an option if a violation of law is suspected.
HFDC's disclosure practice is not followed by all board-run state agencies.
The Hawaii Community Development Authority, which oversees Kakaako redevelopment, makes documents for upcoming board meetings available to the public once board members get them, said Jan Yokota, HCDA's interim executive director. That's usually about a week before the meetings.
HCDA has been operating like that for years, Yokota said.
Hugh Jones, attorney for the state Office of Information Practices, said policy recommendations to boards probably can be legally withheld from the public until the boards discuss and act upon them.
Until that happens, such recommendations are considered part of the deliberation process and therefore protected from disclosure, he said.
The law protecting such information is clearly applicable in cases in which staff members make recommendations to a supervisor, Jones said. The government doesn't want to discourage frank discussions about proposed policy decisions by opening them to public scrutiny, he said.
But when applying that same rationale to recommendations made to a board at a public meeting, things aren't as clear.
"We're not saying these have to be confidential," Jones said. "We're saying they can be withheld."
White said HFDC is re-evaluating its disclosure policy because of the Star-Bulletin inquiry. The agency wants to be sure the policy provides maximum disclosure of information while protecting HFDC's ability to conduct business in the public interest, he said.