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Court upholds ruling keeping Kauai Council minutes secret


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POSTED: Saturday, February 07, 2009

LIHUE » Kauai County was right in declining to release minutes of a Kauai County Council executive session meeting, the state Intermediate Court of Appeals ruled recently.

The decision about a 2005 closed-door County Council meeting held to discuss launching an investigation into the Kauai Police Department was one of a half-dozen lawsuits filed relating to the removal of Kauai Police Chief K.C. Lum.

Lum retired in 2006 after the county Board of Ethics voted to remove him as the chief. They found that a police commissioner, Michael Ching, had used his influence improperly to sway other commission members to make Lum, a former Kauai police lieutenant, the police chief.

The County Council, using the Board of Ethics investigation as well as other evidence, voted to investigate the KPD for mismanagement and other problems prior to Lum's departure.

While discussing how to hold the unprecedented investigation, the County Council held an executive session meeting to discuss how to undertake the inquiry, the scope of their examination and what part of the process should be held in the public eye, according to court documents.

The investigation into the Police Department was never done.

However, after his dismissal from the Police Commission a number of months later, Ching asked for a copy of the executive session meeting minutes. The county attorney said the minutes were attorney-client privilege, and denied the request.

However, Ching, the Honolulu Star-Bulletin, Lum and others appealed to the state Office of Information Practices for a ruling. That office decided that the minutes were not attorney-client privilege, were not sensitive and could be released to the public.

The county filed a lawsuit, and in 2007, Kauai Circuit Judge Kathleen Watanabe sided with the county and ruled the meeting minutes were confidential.

The OIP filed an appeal, and the Court of Appeals upheld the decision, saying yesterday that the meeting was conducted with a lawyer to discuss the duties of the Council and therefore covered under attorney-client privilege.

The last case involving Lum's dismissal is also up for appeal. His U.S. District Court case—alleging wrongful termination, civil rights violations, racism and Whistleblower Protection Violations—was dismissed last year, but he has appealed the case to the 9th U.S. Circuit Court of Appeals.