WAILUKU - While the Maui County Council refuses to turn over minutes of a closed session to discuss an investigation into the demolition of the old Wailuku Post Office, the county has gone to court to try to keep the state Office of Information Practices from issuing an opinion about a possible Sunshine Law violation.
In a lawsuit filed Monday in 2nd Circuit Court, the county asks for the injunction, saying it "would be irreparably harmed" if the state office issued an opinion saying the county had violated the law without "giving proper weight" to the county's arguments and assertion of attorney-client privilege in the closed meeting.
The meeting occurred Aug. 14 when the council's Policy and Intergovernmental Affairs Committee voted to go into executive session to discuss its "powers" with counsel. The committee remained in closed session for more than an hour before voting to ask the county auditor to intervene in the investigation of the post office demolition and to exempt the county corporation counsel from the investigation.
Committee Chairman Riki Hokama called for the closed session to discuss "strategies and options."
Two days later, The Maui News filed a complaint with OIP, asking for an investigation into a possible Sunshine Law violation. The state agency is responsible for administering the Sunshine Law, which requires open public meetings.
After OIP wrote to Hokama for a response to the complaint, Maui County Corporation Counsel Patrick Wong provided minutes of the Aug. 14 regular session and a redacted copy of the minutes of the executive session. In an Aug. 30 letter to OIP, Wong said the redacted information was "covered by the attorney-client privilege." Wong's letter also said the office believed there was no violation of the Sunshine Law.
In a Sept. 9 letter to Wong, OIP asked for an unredacted copy of minutes of the executive session to determine whether the discussion complied with the Sunshine Law. According to the OIP letter, 15 of the 20 pages of executive minutes "were completely redacted except for the header, and two other pages were partially redacted with no explanation or evidence as to what actually was discussed, or why the discussion was in fact in compliance."
The OIP letter said the county hadn't provided enough information to support its position that the meeting didn't violate the Sunshine Law and asked for the unredacted or less redacted minutes within 10 business days. "OIP respectfully reminds Corporation Counsel that the burden here is on the Committee to show that its actions were in accordance with the Sunshine Law," the letter says.
The county responded in a Sept. 13 letter, saying it would continue to assert attorney-client privilege and would not provide the unredacted copy. Providing the unredacted copy would require the Maui County Council to pass a resolution authorizing the disclosure, according to the lawsuit.
In Sept. 27 and Nov. 26 letters to the county, OIP said it has the authority to review documents and keep them confidential. An OIP letter referred to a 2009 Kauai County case in which the Kauai Council provided executive minutes to OIP for confidential review.
OIP gave the county a deadline of Wednesday to provide the records or the agency would issue a decision on the complaint with what had been provided.
OIP Director Cheryl Park declined comment Wednesday because of the pending lawsuit. She said an opinion on whether the county violated the Sunshine Law may now take a while because of the lawsuit.
In addition to seeking the injunction, the county lawsuit asks for a declaratory judgment finding that defendants are not required to provide attorney-client privileged materials to OIP and that the office is acting beyond its authority in trying to compel the county to provide records for confidential review.
* Lila Fujimoto can be reached at firstname.lastname@example.org.