An ongoing federal lawsuit brought last year by the developer of about 100 acres on Oʻahu’s North Shore focuses largely on the actions and/or inaction by the Honolulu Department of Planning and Permitting with regard to permit applications for buildings and subdivisions within the Marconi Point Condominiums project.
Mixed in with claims that the agency infringed upon the developer’s property rights is a claim that the DPP also violated the state Uniform Information Practices Act, Chapter 92F of Hawaiʻi Revised Statutes.
The alleged violation stems from an effort by the developer, Makai Ranch, LLC, and its attorneys, to explore the extent to which corruption was the root cause of why the DPP decided in 2017 to withhold various permit approvals for nearly two years. The DPP has stated that a Special Management Area permit, among other things, must be applied for and reviewed before development may proceed.
The developers claim that the DPP took that stance only after architect William Wong, whom Makai Ranch had hired to facilitate the approval of a farm dwelling permit for unit owner Mary Breen, directed the agency to cancel her pending permit application.
Makai Ranch alleges that Wong was bitter about the company’s refusal to pay him for a new archaeological inventory survey and that he used his influence with DPP employees to stymie further development within the project.
On August 19, 2021, Makai Ranch’s attorneys sent a request to the DPP seeking the following:
1) All records provided to the FBI and/or any other federal or state enforcement agencies related to investigations of Wong and various DPP employees, including Kanani Padeken, Wayne Inouye, Jocelyn Godoy, Jason Dadez, and/or Jennie Javonillo;
2) A list of all permit applications submitted from January 1, 2017, to the present that were assigned for review by those employees or copies of records confirming those permit application assignments;
3) All records of communication between any DPP employee or representative and FBI agent Eli S. Miranda;
4) Information related to employment misconduct that resulted in discharge of one or more of the identified DPP employees; and
5) All records produced to others in response to requests concerning allegations of DPP corruption, including without limitation misconduct by any of the named employees.
The agency provided a response only to the second category of requested information and denied the others.
A September 14, 2021, response from the DPP’s Barbara Yoneda stated that the denied records “must be confidential to avoid the frustration of a legitimate government function,” which included an ongoing personnel investigation.
Makai Ranch argues that the investigation did not justify complete denial of disclosure. Its attorneys point out that although Chapter 92F contains an exception for unwarranted invasions of privacy, as well as an exception for information that is part of an investigation into a possible crime, it also states that if the public interest in disclosure outweighs the privacy interests, that disclosure does not constitute an unwarranted invasion of privacy.
The complaint contends that the records exempt from disclosure under 92F do not include “communications with third parties that are unrelated to the legal proceedings or which are ordinary business records.”
The complaint also notes that at the time of Makai Ranch’s records request, only two of the DPP employees named — Godoy and Dadez — still worked for the DPP.
“[I]t was improper for DPP to deny the request as to the other individuals on the basis of a ‘personnel investigation’ that had already concluded for these individuals or a ‘personnel investigation’ of a non-employee [Wong],” the complaint stated.
Finally, the complaint notes that there is nothing within Chapter 92F that exempts the disclosure of requests from other requestors, despite the DPP’s claim that such disclosure was not allowed.
“Plaintiffs are entitled to a declaratory judgment that DPP violated … [Chapter 92F] by wrongfully withholding documents and information that were otherwise required to be disclosed, and an order compelling DPP’s disclosure of the information and records in response to plaintiffs’ UIPA request that are not otherwise protected from disclosure by applicable law,” the complaint stated.
Despite the companies’ request for a declaratory judgment and an order compelling disclosure, they and the city filed a stipulation with the court last month basically agreeing to seek the information from the DPP by means of the discovery process only.
The stipulation states, “The parties acknowledge that plaintiffs are entitled under public disclosure and other laws, such as [Chapter 92F], to obtain independent disclosure of certain information and documents from the city’s Department of Planning and Permitting that could also be obtained through discovery in this case and could be relevant to the claims and defenses in this case. To facilitate an efficient discovery process and to protect against the inadvertent disclosure of information by the city that might otherwise be protected from disclosure because of this lawsuit, Plaintiffs agree to seek disclosure of such information and documents from the City’s Department of Planning and Permitting only through discovery in this lawsuit, and not through other means. As such discovery in this case will be allowed to continue on all issues, to explicitly include the dismissed claims.”
Those dismissed claims relate to the permit applications for buildings, structures and infrastructure within the Marconi Point Condominiums project area.
— Teresa Dawson
Leave a Reply