Despite a “strong recommendation” from attorneys in the state Office of Information Practices (OIP) to release minutes, and even the threat of legal action from an attorney for Hanalei resident Michael G. Ching if they didn’t release the minutes, members
Despite a “strong recommendation” from attorneys in the state Office of Information Practices (OIP) to release minutes, and even the threat of legal action from an attorney for Hanalei resident Michael G. Ching if they didn’t release the minutes, members of the County Council have responded with silence.
Ching is seeking release of minutes from an executive session of the County Council that OIP attorneys said county officials should release, said Yuriko J. Sugimura, Ching’s attorney and a partner in the Honolulu law firm of Bendet, Fidell, Sakai & Lee.
After hearing nothing after sending a letter to County Clerk Peter Nakamura threatening legal action if the minutes were not released within 10 days, Sugimura earlier this month filed suit against members of the County Council, asking a Fifth Circuit Court judge to order county leaders to release minutes from a January executive session of the County Council where members talked about a possible investigation of the Kaua‘i Police Department.
County Clerk Peter Nakamura referred a call seeking comment to County Attorney Lani Nakazawa. Through county Public Information Officer Mary Daubert, Nakazawa said she would research the filing once she is served with it, and would not comment until she is served despite the offer of The Garden Island to fax her the three-page complaint.
“We don’t understand” why Nakazawa won’t release the documents, Sugimura said. County attorneys have been asking for more time to consult various state officials, including those in the Office of the Lieutenant Governor and Department of the Attorney General, Sugimura said.
Even after Sugimura sent a letter to Nakamura threatening legal action if the minutes aren’t released, there wasn’t even an official county response, she said.
“We got nothing. Just silence.”
The lawsuit is known in legal terms as a special proceeding, or SP, to which county attorneys have 20 days to respond once served, Sugimura said.
On May 25, Sugimura sent a certified letter to Nakamura, demanding a transcript or copy of the meeting minutes delivered to her office within 10 days of the date of the letter, or she would “initiate an action with the Fifth Circuit Court to obtain those records. We trust that you will comply with this reasonable request so that the litigation described will not be necessary,” she wrote.
There was no response, so litigation became necessary, Sugimura said yesterday.
The suit also requests attorneys’ fees and costs “reasonably incurred in this matter, and any and other further relief as the Court may deem necessary,” according to the suit, filed June 9 in Fifth Circuit Court in Lihu‘e.
“The only thing we want to do is get the records,” Sugimura said yesterday. It is “disconcerting” that there has been no official county response, she added.
Since her opinion and that of OIP attorneys are similar, that the records except those that may fall under attorney-client privilege be released, she is hopeful the judge will rule in her client’s favor.
“The judge will have the benefit of the law,” referring to the state’s open-meetings law, also called the sunshine law, and copies of all correspondence between attorneys and representatives of the OIP, Office of the County Attorney, and Sugimura, she said.
“We’re asking the court to look at it, and decide.”
County officials have also not responded to three other written requests for release of the minutes, including one from Kaua‘i Police Department Chief K.C. Lum and another from The Garden Island.
Mayor Bryan J. Baptiste, again through Daubert, released the following comment regarding the controversy: “The county attorney’s office and the OIP have a difference of opinion regarding the determination of confidentiality of the County Council’s executive session meeting (ES177) held on January 20 of this year. We are looking at all possible avenues of reasonably resolving this issue.”
Nakazawa went on the offensive late last week, filing a lawsuit of her own, asking Fifth Circuit Court Judge George Masuoka to rule OIP opinions invalid. A hearing on that declaratory judgment suit is scheduled to be heard on Thursday, July 14, at 1 p.m.
Nakazawa, through Deputy County Attorney Christiane L. Nakea Tresler, opines that ES177, the council executive session in dispute, was conducted legally under the terms of the state sunshine law, and that OIP attorneys’ rulings on release of the minutes are both flawed and that they breached confidentiality concerns as expressed by county officials.
Members of the County Council requested last week that Masuoka determine whether the release of confidential meeting minutes would violate attorney-client privileges, as well as cause certain information to prematurely be made public, including confidential information about the Kaua‘i Police Department and police officers.
The OIP attorneys have opined that the confidential meeting minutes should be publicly released, while members of the council feel that the premature release of the minutes would affect their responsibility to exercise their duties with care and proper legal advice, said Kaipo Asing, council chair.
Members of the council also feel that caution should be exercised with this issue, because premature release of the minutes may negatively impact the integrity of KPD members, confidentiality of investigative matters, and the ability of members of the council to consult with their legal advisors.
“As council chair, it is my sincere desire to try and resolve this issue in a way that upholds the council’s sworn duties to comply with the requirements of the sunshine law as well as to allow us to carry out our legislative-oversight responsibilities so that we can do the best job for our community,” said Asing.
