Kauai sues state
over documents

The County Council refuses
to turn over records
from a hearing

LIHUE » A court case over records from a Kauai County Council meeting could affect the public's right to get records and government agencies' right to appeal decisions.

The case, which pits the County Council against the state Office of Information Practices (OIP), was continued last week as Circuit Judge George Masuoka rejected the state office's motion to dismiss. A hearing on the county's motion for preliminary injunction is scheduled for Oct. 11.

Even the motion to dismiss might have set a precedent.

OIP was created in 1988 to administer the Uniform Information Practices Act, which gives the public access to county and state records, and the state Sunshine Law, which guarantees open meetings for boards and commissions.

It is OIP Director Leslie Kondo's belief that the law does not give state or county agencies the right to appeal, he wrote in his brief in support of the motion to dismiss.

"The very simple question is whether the decision by the OIP is appealable" to the courts, Kondo argued in early August in front of Masuoka. "The answer is no."

But Masuoka, who said the state Supreme Court has yet to make a determination on the agencies' right to appeal, disagreed.

He instead agreed with the county's assertion that there should be checks and balances.

The county's outside counsel, David Minkin of McCorriston Miller Mukai and MacKinnon, said last week that the Council did not agree with the OIP when it repeatedly asked the county to turn over documents to a County Council executive session. The only recourse it had was to file the lawsuit.

The executive session, dubbed ES 177 and held Jan. 20, was purportedly held to discuss a possible investigation into the Kauai Police Department.

When OIP was asked to look at the records for an unrelated matter, they found that ES 177 did not discuss the possible investigation at all. Because they were in violation of state Sunshine Law, OIP told the county to release the record of the meeting.

When members of the public asked for the records, they were ignored. The county, meanwhile, asked the OIP to reconsider.

The county has said that to release the record of the meeting would be against a number of different laws, breach ethics of the county attorney by ignoring attorney-client privilege and create public safety problems. It also would open up individual Council members to possible criminal and civil liabilities, Minkin said.

"We're asking the court to step in and make a decision whether the OIP overreached its statutory mandate," Minkin said, "or made an incorrect decision."

This is not an isolated case on Kauai. There are three other lawsuits involving the issuance of County Council records. One, involving a former Star-Bulletin journalist, has yet to receive even an appearance date, despite the fact it was filed nearly a year ago.

Also, the OIP has written dozens of letters to the county on behalf of members of the public to request records of other County Council executive session meetings. To date, no one has received those records.

The county clerk, on advice of the County Attorney Lani Nakazawa, has even refused to release their communications to other state agencies like the Office of Disciplinary Counsel and the attorney general's office -- and that is after releasing some of those records to members of the news media months ago.