The Office of Information Practices has a take on the Sunshine Law that is at variance with that of the Attorney General, OIP head Les Kondo has acknowledged – one that favors closed meetings over open ones. Disclosure of the divergent opinions came about after Environment Hawai`i learned of plans for a site visit by Land Board members to East Maui Irrigation facilities on the eve of the board’s first May meeting, held on Maui instead of in Honolulu.
Land Board chair Peter Young told Environment Hawai`i his department’s failure to publicize the site visit was merely an oversight. He said neither he nor his secretary had been trained properly on public meeting procedures. Yet according to the OIP, the agency that often conducts just such training, no public notice would have been required for the Thursday site visit.
The reason for the holding the regular board meeting on Maui in the first place, according to a staffer in Young’s office, was so that board members could take the EMI tour. The Sunshine Law does not allow such meetings, and, in an effort to stop it from occurring, Environment Hawai`i sought the intervention of the Office of Information Practices. By statute, the OIP is charged with encouraging agencies to conform to the requirements of the Sunshine Law and the open-records law, and in the past it has been effective in doing so.
After the initial complaint was made, OIP director Kondo said, he spoke with Young, who informed him that only two board members – Lynn McCrory of Kaua`i and Tim Johns, at-large member – were going to go on the EMI tour. That meant, according to Kondo, that there was no Sunshine Law violation at all under his interpretation. However, Kondo told EH, he did advise Young that his (Kondo’s) reading of the law was at variance with that of the state Attorney General. Young then cancelled the meeting, opting to go with the AG’s stricter interpretation instead of Kondo’s merely advisory one. (The OIP has no powers of enforcement.)
Kondo then explained to EH his interpretation of the law relating to private meetings of board members. Section 92-2.5 of Hawai`i Revised Statutes, he said, allows two members of a board to “communicate or interact privately between themselves to gather information from each other about official board matters.” Does a taxpayer-financed trip count as a private interaction? Kondo was asked. Nope, he said, the law says nothing about financing entering into the picture as a criterion of whether a meeting must be public. Would not the presence of an EMI guide make the site visit more of a fact-finding mission and thus be covered under a different part of the Sunshine Law? Nope, he said, the law doesn’t prohibit board individual board members from talking with anyone they like, and therefore two board members were not prohibited from talking with anyone. (Never mind, apparently, the language in the law that the officials are only to “gather information from each other.”)
Kondo was asked whether, in interpreting the law in this fashion, he felt he was truly giving the benefit of the doubt to the public’s interest in open government. He didn’t answer the question directly, but said he was trained in interpreting the law. (His background is as a private attorney in civil litigation and landlord tenant law.)
Environment Hawai`i then called Young’s office once more, to confirm that the meeting had been cancelled. We then asked directly how many people were going to attend. The secretary informed us that only two were able – that the chairperson had another engagement that prevented him from going. In other words, the meeting had originally been for more than two board members, and thus, according to even Kondo’s interpretation, would have been prohibited under the Sunshine Law.
At the time of his appointment, Governor Lingle said she had “confidence in Les’ legal abilities and judgment to ensure that the people of Hawai`i have fair and open access to government records and public information. Les will play a key role in our efforts to restore the public’s trust in government and to encourage public involvement and input in the democratic process.”
Kondo himself said at the time, “This position is about trust, honesty and openness, and I look forward to working with the administration and the public to make government information accessible.”
— Patricia Tummons
Volume 13, Number 12 June 2003
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