please provide a brief description of: the proposed ... · cannot contradict hrs § 291c-20. 2. ......

700 Bishop Street, Suite 1701 Office: (808) 531-4000 Honolulu, HI 96813 Fax: (808) 380-3580 [email protected]

1. Please provide a brief description of: The Proposed Charter amendment, the purpose of the proposed Charter amendment, the issue or problem to be addressed by the proposal, and how the proposal would address the issue or problem.

The Proposed Amendment conforms the Charter’s language regarding public records to State law and removes redundant language.

a. Access to public records cannot be limited to citizens. The Uniform Information Practices Act (Modified), HRS ch. 92F (UIPA), provides: “Except as provided in section 92F-13, each agency upon request by any person shall make government records available for inspection and copying during regular business hours . . . .” HRS § 92F-11(b) (emphasis added).

b. The Chief of Police and the Prosecuting Attorney do not have absolute discretion to withhold records maintained by the police department or office of the prosecuting attorney, respectively. As reflected in the UIPA citation above, the only exceptions to State law are provided by section 92F-13. E.g., OIP Op. No. 98-01 at 5 n.4 (public records under the UIPA cannot be made confidential by charter or ordinance); OIP Op. No. 95-14 at 6-7.

c. The disclosure provision for traffic accident records is redundant of and cannot contradict HRS § 291C-20.

2. If applicable, list the Charter provision(s) affected by the proposal: The Charter Proposal would amend Section 13-105. 3. If the proposal is based on a provision or provisions in the charter or laws of

another jurisdiction (e.g., another county, city, or municipality), name the jurisdiction and, if possible, attach a copy of each provision or law.

This proposal is based on State law. 4. If the proposal is based on any written materials you have, please attach a copy

of each with a citation to its source. HRS § 92F-11 HRS § 291C-20 OIP Op. No. 98-01 OIP Op. No. 95-14 5. Attach the text of the proposed Charter amendment in Ramseyer format (see

instructions below). Amending Section 13-105

2

“Section 13-105. Records Open to the Public— All books and records of the city shall be open to the inspection of any person [citizen] at any time during business hours. Certified copies or extracts from such books and records shall be given by the officer having custody of the same to any person demanding the same and paying or tendering a reasonable fee to be fixed by the council for such copies or extracts. [, but the records of the police department or of the prosecuting attorney shall not be subject to such inspection unless permission is given by the chief of police or the prosecuting attorney, except in the case of traffic accidents where such records, including all statements taken, shall be available for inspection by the parties directly concerned in such accident, or their duly licensed attorneys acting under written authority signed by either party. Any person who may sue because of death resulting from any such accident shall be deemed a party directly concerned.]”

PART II. FREEDOM OF INFORMATION §92F-11 Affirmative agency disclosure responsibilities. (a) Allgovernment records are open to public inspection unless access isrestricted or closed by law. (b) Except as provided in section 92F-13, each agency upon requestby any person shall make government records available for inspection andcopying during regular business hours. (c) Unless the information is readily retrievable by the agency inthe form in which it is requested, an agency shall not be required toprepare a compilation or summary of its records. (d) Each agency shall assure reasonable access to facilities forduplicating records and for making memoranda or abstracts. (e) Each agency may adopt rules, pursuant to chapter 91, to protectits records from theft, loss, defacement, alteration, or deteriorationand to prevent manifestly excessive interference with the discharge ofits other lawful responsibilities and functions. [L 1988, c 262, pt of§1; am L 2010, c 100, §§1, 3]

Note Repeal and reenactment of subsection (b) on July 1, 2014. L 2010, c100, §3.

Case Notes Chapter 92F applies prospectively, requiring disclosure of recordsmaintained by state agencies regardless of when the records came intoexistence. 83 H. 378, 927 P.2d 386. Where trial court determined that any unaccepted engineering reportswere returned to the developer and there was a lack of evidencesuggesting that the city planning and permitting department "maintained"any reports or copies of the reports that were unaccepted by thedepartment, trial court properly determined that, pursuant to thischapter, the reports submitted to the department in connection with thedeveloper's subdivision application did not constitute "governmentrecords" prior to their acceptance by the department. 119 H. 90, 194P.3d 531. Mentioned: 74 H. 365, 846 P.2d 882.

Previous Vol02_Ch0046-0115 Next

http://www.capitol.hawaii.gov/hrscurrent/Vol02_Ch0046-0115/HRS0092F/HRS_0092F-0004.htm

http://www.capitol.hawaii.gov/hrscurrent/Vol02_Ch0046-0115

http://www.capitol.hawaii.gov/hrscurrent/Vol02_Ch0046-0115/HRS0092F/HRS_0092F-0012.htm

[§291C-20] Disclosure of traffic accident reports. (a) Anytraffic accident report required under this chapter shall be made withoutprejudice to the person required to report information concerning theaccident and shall be for the confidential use of the police department,except that the department shall, upon request, disclose such record, toany person directly concerned in the traffic accident or having a properinterest therein, including:

(1) The driver or drivers involved, or the employer, parent, or legal guardian thereof;

(2) The authorized representative of any person involved in the accident;

(3) Any person injured in the accident;

(4) The owners of vehicles or property damaged in the accident;

(5) Any law enforcement agency; and

(6) Any court of competent jurisdiction.

(b) Any person who may sue because of death resulting from any suchaccident shall be deemed a party directly concerned. (c) In the event of a conflict between this section and any otherlaw, including sections 286-171 and 286-172 and chapter 92F, this sectionshall control. [L 1996, c 275, §1]

Previous Vol05_Ch0261-0319 Next

http://www.capitol.hawaii.gov/hrscurrent/Vol05_Ch0261-0319/HRS0291C/HRS_0291C-0019.htm

http://www.capitol.hawaii.gov/hrscurrent/Vol05_Ch0261-0319

http://www.capitol.hawaii.gov/hrscurrent/Vol05_Ch0261-0319/HRS0291C/HRS_0291C-0021.htm

BENJA CAYETA 0

January 18, 1998

OFFCE:

MOYA T. DAVENPORT GRAYr:j,=ZECTOFZ

Carolyn L. StapletonExecutive Director and Legal CounselEthics Commission of the City and County of Honolulu719 South King Street, Suite 211Honolulu, Hawaii 96813

Dear Ms. Stapleton:

Re: Public Requests for City Ethics Commission Advisory Opinions

This is in reply to your letter to the Office of Information Practices("OM") dated September 9, 1993, requesting an advisory opinion concerningthe above-referenced matter.

ISSUE PRESENTED

Whether, under the Uniform Information Practices Act (Modified),chapter 92F, Hawaii Revised Statutes ("UIPA"), the Ethics Commission of theCity and County of Honolulu ("Commission") must disclose an advisory opinionabout an identified individual, when the advisory opinion has already beendisclosed by a person other than the Commission.

BRIEF ANSWER

No. In this case, the 01.P reviewed two of the Commission's duties: theduty to make public segregated advisory opinions, and the duty to promote andencourage ethical behavior by City and County employees. The OIP believesthat disclosure of advisory opinions in a manner that would confirm theidentity of those involved would frustrate the Commission's ability toinvestigate future claims of unethical behavior or to advise on questions about

OIP Op. Ltr. No. 98-1

Carolyn L. StapletonJanuary 16, 1998Page 2

ethical behavior. Disclosing, or merely confirming or denying the existence ofan advisory opinion about a specific individual even in this one limitedinstance would likely impede the Commission's ability to receive complaintsand candid information in the future. Specifically, the mere possibility thattheir identities would be revealed and the fear of reprisal would discouragefuture callers and complainants from seeking advice or reporting misconductto the Commission. Disclosure of individually identifiable advisory opinionswould, therefore, frustrate the Commission's function of investigating andadvising on ethical behavior. Because the frustration of a legitimategovernment function exception applies here, the Commission may choose notto disclose advisory opinions in a manner which identifies those personsinvolved in the matter.''

FACTS

The Commission's advisory opinions generally discuss potential andactual conflicts of interest in acceptance of gifts, or allegations of unethicalconduct by City employees or officers. The Commission's advisory opinionscontain information about individuals such as possible employment relatedmisconduct, possible ethical violations, and other personal information such ashome addresses. Advisory opinions are published only after the necessaryredactions to prevent the disclosure of the identity of the persons involved aremade. Rev. Charter of the City and County of Honolulu, art. XI, § 11-107 (rev.ed. 1984). The Charter of the City and County of Honolulu ("City Charter")provides that the Commission may, on its own initiative:

[R]ender advisory opinions with respect to[article XI] of the charter. Advisory opinionsshall be rendered pursuant to the writtenrequest of any elected or appointed officer oremployee concerned and may be rendered

complainant is a person who files a written complaint with the Commissionalleging an ethical violation by a City employee.

It should be noted that the OIP concluded in a previous opinion letter thatintbrmation contained in the Commission's advisory opinions, in ordinary circumstances,carries a significant privacy interest which would be protected from disclosure by theUIPA's clearly unwarranted invasion. of personal privacy exception. See OIP Op. Ur. No.96-2 (July 16, 1996).

OIP Op_ Ltr, No. 98-1


pursuant to the request of any person. The commission shall publish its advisory opinionswith such deletions as may be necessary to prevent disclosure of the identity of the personsinvolved.

Rev. Charter of the City and County of Honolulu art. XI, § 11-107 (rev. ed.1984) (emphasis added). In addition, section 3-6.5(d), Revised Ordinances ofHonolulu 1990 (1995 Ed.) ("ROH") provides that the Commission shall publishits advisory opinions in a form and with such deletions as may be necessary toprevent the disclosure of the identity of the persons involved.

When it is possible to redact an advisory opinion so it contains noinformation which would identify any individual, the redacted opinion ispublished by the Commission, pursuant to the ROH and the City Charter.Redacted published advisory opinions provide the public and City officials witha guide as to ethical conduct required of City and County employees andofficials. Rev. Charter of the City and County of Honolulu art. XI, § 11-107(rev. ed. 1984). The Commission provides an unedited version of its advisoryopinion to the complainant and a version in which the complainant's identity isnot revealed to the subject of the opinion.

In this case, a complainant ("Complainant") made allegations ofunethical behavior about a former high-ranking City official. The Commissioninvestigated the complaint, and in the advisory opinion recommendedappropriate action be taken by that official. Apparently, the Complainantreleased her version to the media and publicly disclosed the name of thesubject of the opinion.

In a letter to the OIP, Ms. Carolyn Stapleton, Executive Director andLegal Counsel for the Commission, stated that Common Cause Hawaii askedthe Commission for a copy of the advisory opinion issued in response to acomplaint filed against the former high-ranking City official specificallyidentified by Common Cause Hawaii. Ms. Stapleton asked the OIP for anopinion as to whether the Commission is required to release that advisoryopinion. In her two detailed letters to the OIP, Ms. Stapleton asserted thatrelease of advisory opinions which are requested about a specific individual, ormerely the confirmation or denial of the existence of an advisory opinion abouta specific individual, would have a chilling effect on potential callers andcomplainants. She argues that without information on possible ethical



violations or concerns, the Commission would be unable to perform its dutiesunder the City Charter and the ROH. Ms. Stapleton asserts that this holdstrue even if an advisory opinion was already made public by someone outsidethe agency, as was done in this instance, because such disclosures mayencourage what Ms. Stapleton calls "fishing expeditions" by requesters thatwill have a chilling effect on anyone considering filing a complaint. 3

According to Ms. Stapleton, the Commission frequently receivesanonymous telephone calls from people who observed behavior they believe isunethical and wish to report it. These people are often in such fear ofretaliation and repercussion that they will not leave their telephone numbersor even provide the Commission with their first names. In addition, callerssometimes refuse to file formal complaints with the Commission because theyfear they will lose their jobs, their pensions, or otherwise suffer repercussions.The Commission's efforts to protect its informants include keeping its filecabinets locked, and shredding documents and even envelopes, in addition tothe standard practice of making employees sign confidentiality affirmations.

Ms. Stapleton also asserts that the Commission frequently receivesquestions from City employees as to whether certain actions they are

81:n relying on Ms. Sta.pleton's written statements, the OIP notes Windels, Marx, Davies & Ives v. Dept of Commerce. 576 F. Stipp. 405, 410 (D.C. Cir. 1983), a federal caseinterpreting the Federal. Freedom of Information Act ("FOIA"), which states:

Edjisputes regarding risks created by disclosure,inherently a matter of some speculation, are notsufficient to create a triable issue of fact when theagenc y possessing relevant expertise has providedsufficiently detailed affidavits to justify its positionthat disclosure would pose significant risks, seeGardels v CIA._ 689 F.2d 1100, 1106 & 1106 n.5(D.C. Cir. 1982).

In IATindels. the Federal Department of Commerce sought to prevent: disclosure of aco n.)uter prod rum used to perform calculations necessary to determine if a foreign steelproducer violated U.S. "antidumping" laws by selling steel in the U.S. market for less thanfair value. Winds:ds at 408.

The OfF believes the two letters from Ms. Stapleton are sufficient to opine on. thefacts herein and an affidavit is not necessary because the OIP is not the trier of fact in thiscase, but is instead providing an advisory Opinion.



contemplating would be ethical. These callers are concerned aboutconfidentiality because they do not want others to know about the actions theyconsidered.

DISCUSSION

INTRODUCTION

The UIPA states that "[e]xcept as provided in section 92F-13, HawaiiRevised Statutes, each agency upon request by any person shall makegovernment records available for inspection and copying during regularbusiness hours." Haw. Rev. Stat. § 92F-11(b) (1993). Under the UIPA, theterm "government record" means "information maintained by an agency inwritten, auditory, visual, electronic, or other physical form." Haw. Rev. Stat. §92F-3 (1993). The Commission's advisory opinions are government records forpurposes of the UIPA. See OIP Op. Ltr. No. 96-2 at 3-4 (July 16, 1996) (publicaccess to City Ethics Commission advisory opinions). Accordingly, access tothe Commission's advisory opinions is governed by the UIPA.

There are five exceptions to disclosure of government records in section92F-13, Hawaii Revised Statutes, and these include: (1) government recordswhich, if disclosed, would constitute a clearly unwarranted invasion ofpersonal privacy; (2) government records that would not be discoverable in ajudicial or quasi-judicial action to which the State or county is or may be aparty; (3) government records that must be kept confidential to avoid thefrustration of a legitimate government function; (4) government records thatare protected from disclosure by State or federal law, including State or federalcourt orders; and (5) personnel files of legislative members, draft workingpapers of legislative committees, including unfiled committee reports andbudget worksheets, and records of investigating committees of the Legislaturethat are closed pursuant to legislative rules. Haw. Rev. Stat. § 92F-13 (1993).The 01P finds that exception (3) is relevant to the facts presented. 4

Although the ROEI and the City Charter protect the identities of individuals in adviscayopinions from disclosure, the UIPA does not recognize county ordinances as "state law" for purposes ofapplying exeeplion (4). See 01P Op. Ltr, No. 95-1.4 at 5-7 (May 8, 1995).

OIP Op. Ur, No. 98-1

Robert Black


II. FRUSTRATION OF A LEGITIMATE GOVERNMENTFUNCTION

The UIPA permits government agencies to keep certain governmentrecords confidential under the UIPA exception for records that must be'confidential to avoid the frustration of a legitimate government function. Haw.Rev. Stat. § 92F-13(3) (1993). The legitimate government function of theCommission which is relevant here is the rendering of advisory opinionspursuant to requests from elected officials, City and County employees, andany other person. Rev. Charter of the City and County of Honolulu, art. XI,§ 11-107 (rev. ed. 1984).

The OIP believes the Commission's advisory opinions are also evidenceof the Commission's workload and performance level, and thereby make theCommission accountable to the public. However, the facts herein present aconflict between the Commission's duty to publish advisory opinions, and theduty to encourage ethical behavior in City government employment throughthe issuance of advisory opinions. Furthering one of these duties may hinderthe other when there has been a request for an advisory opinion about aspecific individual.

In her letters to the OIP (see "FACTS"), Ms. Stapleton asserts thatwhen a public request is made for an advisory opinion about a specific namedindividual, even if individually identifying information is redacted prior to itsrelease, the Commission cannot protect the privacy interests of those involvedbecause the requester already knows who the advisory opinion is about. Ifsuch public disclosure requests are honored by the Commission, even if only inone limited instance, the OIP agrees with the Commission's contention that itwill chill the Commission's ability to solicit candid information in the future.Callers and complainants will be reluctant to contact the Commission if theybelieve there is any possibility that their identity may be revealed throughsuch a request. As a result, potential unethical behavior will go onunaddressed by the Commission and the Commission's functions ofinvestigating and rendering advisory opinions will be frustrated.

The OIP finds that it is a primary function of the Commission toinvestigate, advise and make recommendations on possible ethical violationsunder the City Charter and the ROH. Rev. Ordinances of Honolulu at 6, et.seq. While the Commission does have authority to hold hearings pursuant tothe City Charter, art. XI, section 11-107, and section 3-6.3(d), of the ROH,



according to evidence presented by Ms. Stapleton, no hearing was held in thisparticular investigation. Thus, as is mandated by section 3-6.5(c), ROH, allrecords, reports, writings, documents, exhibits and other evidence received bythe Commission must be held in confidence unless this information waspresented and received by the Commission at a hearing or meeting open to thepublic . 5

The UIPA does not recognize county ordinances as "state law" forpurposes of applying the exceptions to disclosure of government records undersection 92F-13, Hawaii Revised Statutes. See OIP Op. Ltr. No. 95-14 at 5-7(May 8, 1995). However, in this case, the OIP views section 3-6.3, ROH, asadditional evidence of an intent to protect the Commission's functions ofinvestigating and rendering advisory opinions.

Previously, the OIP opined that government agencies may withholdpublic access to information in the Commission's opinions which, if released,would frustrate a legitimate government function under section 92F-13(3),Hawaii Revised Statutes. OIP Op. Ltr. No. 96-2 at 10 (July 16, 1996)(identities of individuals named in City Ethics Commission advisory opinionsmay be withheld from the public). In that opinion letter, although the OIP'sprimary basis for opining in favor of nondisclosure was based on the significantprivacy interests of the subjects and complainants, the OIP also determinedthat the Commission need not disclose the identities of complainants becausethe Commission relies on complainants "to inform it of possible conflicts ofinterest and unethical conduct." Id. The OIP Opinion. Letter No. 96-2 waswritten in response to a request from the Honolulu City Council, which wasconsidering amending the City Charter to mandate that Commission advisoryopinions be public in their entirety, including the names of those involved.The OIP opined that disclosure of complainants' identities would frustrate theCommission's ability to perform its legitimate government function ofrendering opinions because such disclosures "would discourage requestersfrom requesting the opinions and providing information so that theCommission can provide guidance regarding the prevention or correction of thealleged violation of the City's Standards of Conduct." Id.

5 At the state level, the State Ethics Commission ("SEC") may also investigate and renderadvisory opinions, and proceedings at this stage are not public. Haw. Rev. Stat. § 84-31(b) (Supp 1996).However, if the SEC determines that there is probable cause to believe that a violation of chapter 84 of theHawaii Revised Statutes occurred, then more formal proceedings are begun by the SEC itself. Id.Decisions of the SEC after hearing are public record. Haw. Rev. Stat. § 84-31(d) (Supp. 1996).



In comparison, in OIP Opinion Letter No. 92-23 (Nov. 18, 1992), the OIPfound that if the Department of Education ("DOE") allowed public inspectionand copying of FBI reports it uses to conduct criminal backgroundinvestigations, the FBI would likely cease to provide that information, OIPOp, Ltr. 92-23 at 6-7 (Nov. 18, 1992) (criminal history record informationobtained from the FBI may be withheld from the public). If the FBI no longerprovided such information, the DOE would be unable to perform its legitimategovernment function of conducting criminal history checks. Id. Therefore theOIP concluded that section 92F-13(3), Hawaii Revised Statutes, allowed theDOE to withhold from public disclosure information provided to it from theFBI in order to avoid the frustration of its legitimate government function. Id.

The OIP recognizes that aside from its duty to issue advisory opinions,the Commission has the additional duty or function to publish advisoryopinions redacted of individually identifiable information when possible. Rev.Charter of the City and County of Honolulu art. XI, § 11-107 (rev, ed. 1984).The 01P concludes that to disclose the advisory opinion about an individualidentified by the requester would result in the frustration of a legitimategovernment function because the Commission's ability to receive candidinformation about future ethical violations and, in turn, to opine on suchalleged violations, would be diminished.

The OIP believes its opinion here does not minimize the accountabilityfor ethical behavior of the subject of an advisory opinion. The subject of anadvisory opinion that is not disclosed to the public is still advised on how toremedy the ethical violation if the advisory opinion finds that an ethicalstandard was violated. It should also be noted that the Commission doespublish "sanitized" summaries of its opinions when it is possible to segregateindividually identifiable information. This publication makes the Commissionaccountable to the public, while at the same time protecting both privacyinterests, as well as the Commission's ability to carry out its duties.

Rather than providing to the requester an opinion about a specificindividual named by the requester, the OIP recommends that the Commission,in response to a request such as the one discussed herein, provide therequester with copies of all the Commission's advisory opinions which havealready been segregated for public disclosure or publication. The requester isthen free to choose the advisory opinions that the requester is interested in.

OIP Op. Ltr. No. 984


III. CLEARLY UNWARRANTED INVASION OF PERSONALPRIVACY

In addition to the disclosure exception for the frustration of a legitimategovernment function, the UIPA's privacy exception is relevant to the questionof disclosure of the Commission advisory opinions. Because the OIP foundthat the subjects of the Commission advisory opinions have a significantprivacy interest in the information identifying them in the opinions, the DIPpreviously determined that the subjects' identities generally were exempt fromdisclosure pursuant to the exception for Idovernment records, which ifdisclosed, would constitute a clearly unwarranted invasion of personalprivacy." DIP Op. Ltr. No. 96-2 (July 16, 1996). However, the significance ofan individual's privacy interest and the weight of the public interest indisclosure are affected by the circumstances involved in any particular case.See, e.g., Nakano v. Matayoshi, 68 Haw. 140 (1985) (protection of privacyinterest in financial affairs is more limited for government official than privateindividual); DIP Op. Ltr. No. 93-13 (Sept. 17, 1993) (disclosure of identities ofnominees for State Ethics Commission is proper where disclosure would revealactions of the nominating agency and provide insight as to appointmentprocess). 6 Here, because the issue of disclosure is resolved by section 92F-13(3), Hawaii Revised Statues, the DIP need not discuss whether the exceptionto disclosure for a clearly unwarranted invasion of personal privacy applies.

CONCLUSION

The OIP believes the Commission's ability to perform its functions andduties under the City Charter and the City Ordinances will be frustrated bythe release of an advisory opinion about an identified individual, even aftersegregation of individually identifiable information, because the identity of thesubject of the opinion is already known to the requester. Under suchcircumstances, no amount of segregation can protect the individual's identity.Disclosure would have a chilling effect on the Commission's ability to perform

Circumstances that could have an effect on an individual's privacy interests may include suchoccurrences as publication of the information, the position that the government employee or official holds,or a waiver by those holding privacy interests. For example, in OIP Opinion Iftter Number 94-21 (Nov.15. 1994), a member of the Hawaii State House of Representatives gave an interview regardinginformation contained in her workers' compensation records. The OIP found that this public disclosureconfirming a work-related injury and the benefits resulting therefrom greatly diminished her privacyinterests in the information. Thus, relevant portions of her workers' compensation records were open forpublic inspection.

DIP Op. Ltr. No. 98-1

T. Davenport GraDirector


its duties in the future because informants and complainants will be reluctantto provide information to the Commission for fear of reprisal if their identitiesbecame known. Although the Commission takes steps to ensure theconfidentiality of informants, the fear of possible disclosure is enough toobstruct the Commission's work. Therefore, the Commission is not required todisclose the advisory opinion about an identified subject because disclosurewould cause the frustration of a legitimate government function.

If you have any questions regarding this opinion, please contact me at586-1400.

Very truly yours7,,

Carlotta M. DiasStaff Attorney

APPROVED:

CMD:pmc: Daniel Mollway

Hawaii State Ethics Commission


BENJAMIN 3. CMETAMOAmok. wo

1-0YOANX3

AMERY 5. 3RONSTERAm now IVISI a go

tR r4LEEN A.

ltRECTOA

34, Mat 586-= 400

. AX d081 585-1 A/ 2A rra/RNIET GE NORM.

STATE OF HAW A iDEPARTMENT OF 'NE ATTORNEY GENERAL

OFFICE OF 'NFORMATICN PRACTICES42* QUEEN STAEV. ROOM 201

-40tiet,01.Li. HAMM 41473-2501:14

May 8, 1995

The Honorable Goro HokamaChair, County CouncilCounty of Maui200 South High StreetWailuku, Maui, Hawaii 96793

The Honorable J.P. SchmidtCorporation Counsel.County of Maui200 South High StreetWailuku, Maui, Hawaii 96793

Dear Mssrs. Hokama and Schmidt:

Re: Filing Dates of Maui County Board and CommissionMembers' Financial Disclosure Statements

This is in response to Chairperson Goro Hokama's requests tothe Office of Information Practices dated November 13, 1993 andDecember 20, 1993 concerning the public's right to know whichMaui County board and commission members have filed theirfinancial disclosure statements with the Maui County Board ofEthics ("Ethics Board") and the dates of these filings. Thisletter also responds to former Corporation Counsel Guy A.Haywood's request dated February 4, 1994 concerning whether aroster of Maui County board and commission members' names andfinancial disclosure filing dates, if such a roster is created bythe Ethics Board, would be publicly accessible under the UniformInformation Practices Act (Modified), chapter 92F, Hawaii RevisedStatutes ("UIPA").

ISSUES PRESENTED

I. Whether, under the UIPA, the first page of thefinancial disclosure statements filed with the Ethics Board byMaui County board and commission members, segregated of allinformation except for the name of the board or commission

GIP Op. Ltr. No. 95-14

Honorable Goro HokamaHonorable J.P. SchmidtMay 8, 1995Page 2

members and the date of the filing, must be made available forpublic inspection and copying upon request.

II. Whether, under the UIPA, if the Ethics Board creates aroster listing the names of Maui County board and commissionmembers and the dates they have filed their financial disclosurestatements, such roster must be made available for publicinspection and copying upon request.

BRIEF ANSWERSI. Yes. Although there is a provision of the Charter of

the County of Maui ("County Charter") that makes confidential thefinancial disclosure statements of Maui board and commissionmembers, the County Charter is not a "state law" for purposes ofsection 92F-13(4), Hawaii Revised Statutes. However, based uponour examination of article XIV of the Constitution of the Stateof Hawaii, which is a "state law" under section 92F-13(4), HawaiiRevised Statutes, and the Proceedings of the ConstitutionalConvention of the State of Hawaii 1978, we believe that thedelegates intended the financial information of some publicofficials and employees to be publicly disclosed, while thefinancial information of other public officials and employeeswould be kept confidential. In order to determine whether thenames of those individuals required to file confidentialfinancial disclosures and their filing dates must also be keptconfidential, we examined the UIPA's personal privacy exception,section 92F-13(1), Hawaii Revised Statutes.

Because the individuals required to file confidentialfinancial disclosures are specified by State and county laws, andbecause all of these individuals are also required to file suchdisclosures annually, we do not believe that they have a strongprivacy interest in their name or the date on which they filedtheir disclosure. On the other hand, there is a strong publicinterest in knowing whether these individuals have complied withthe State or county laws requiring them to file their financialdisclosures. Accordingly, in our opinion, the disclosure of thenames of those individuals who have filed and the dates of suchfilings would not constitute a "clearly unwarranted invasion ofpersonal privacy" under section 92F-13(1), Hawaii RevisedStatutes.

II. Yes. If the Ethics Board creates a roster of the namesof the Maui board and commission members who have filed financialdisclosure statements and the dates of such filings, this roster



would not be protected by any of the UIPA exceptions todisclosure and, therefore, must be made available for publicinspection and copying upon request.

PACTS

Section 10-3 of the Charter of the County of Maui (1993)("County Charter") provides that:

All members of boards and commissions establishedunder this charter, and such appointed officers orother employees as shall be designated by thecouncil by ordinance as having significantdiscretionary or fiscal powers shall file with theboard of ethics confidential financial disclosuresin a form or forms to be prescribed by the boardof ethics which disclosures shall not be open topublic inspection.'

County Charter § 10-3(2) (1993).

Section 10-3(3) of the County Charter sets forth thespecific requirements concerning the filing of a financialdisclosure statement and its contents:

All persons required herein to make financialdisclosures shall file such disclosures withinfifteen days of taking office or within fifteendays of filing nomination papers as a candidatefor an elected county office. The disclosureshall be sworn to under oath and shall include,but not be limited to, sources and amount ofincome, business ownership, office and directorpositions, ownership of or interest in realproperty, debts, creditor interests in insolventbusinesses, the names of persons representedbefore government agencies, and such other

'Section 10-3(1) of the County Charter also requires "[a]llelected county officers, all candidates for elective countyoffice and such appointed officers or other employees as thecouncil shall designate by ordinance" to file financialdisclosure statements with the Board. However, theseindividuals' financial disclosure statements "shall be open topublic inspection." Id.


Honorable Gore HokamaHonorable J.P. SchmidtMay 8, 1995Page 4

information as shall be prescribed by the board ofethics.

County Charter § 10-3(3) (1993).

On September 7, 1993, Chairperson Hokama requested from theEthics Board a "list of the latest financial disclosure filingdates for all individuals required to file" including "electedofficials, directors and deputies, and board and commissionmembers." In a letter dated October 28, 1993, the Ethics Boardprovided Chairperson Hokama with a draft list of the names of theelected county officers, and executive and legislative directorsand first deputies who filed their most recent financialdisclosure submissions and the dates of their filings, as well asthe dates on which these submissions were reviewed by the EthicsBoard. However, because the Ethics Board did not maintain such alist for board and commission members, and because the requestedinformation would have to be obtained by examining the financialdisclosure statements which, according to section 10-3(2) of theCounty Charter, must be kept confidential, the Ethics Boarddenied Chairperson Hokama's request for the names and filingdates of those board and commission members who have filed theirfinancial disclosure statements.

Chairperson Hokama subsequently wrote a letter to the OIPdated November 15, 1993 requesting an advisory opinion concerningpublic access to the names of County board and commission memberswho have filed their financial disclosures and the dates of suchfilings. In his letter to the OIP, Chairperson Hokama reiteratedthat he is only interested in learning which County board andcommission members have filed and the dates, and he is notrequesting access to any other information contained on thefinancial disclosure statements.

In a letter to the OIP dated February 4, 1994, the MauiCorporation Counsel requested an OIP advisory opinion concerningwhether a roster, if created by the Ethics Board, which containsthe names of board and commission members who have filed theirfinancial disclosure statements and the filing dates would bepublic under the UIPA.

DISCUSSION

I. INTRODUCTION

Under the UIPA, "ta]ll government records are open to public



inspection unless access is restricted or closed by law." Haw.Rev. Stat. § 92F-11(a) (Supp. 1992). The UIPA also explains that"[e]xcept as provided in section 92F-13, each agency upon requestby any person shall make government records available forinspection and copying during regular business hours." Haw. Rev.Stat. § 92F-11(b) (Supp. 1992).

Although the information requested by Chairperson Hokamawould be contained in the proposed roster which the Ethics Boardmay decide to create in the future, the requested informationcurrently is available only in the financial disclosurestatements. In Chairperson Hokama's letter dated November 15,1993 to the DIP requesting this advisory opinion, he asked theOIP whether the public may inspect only the name and the filingdate contained in the financial disclosure statement, with allother information segregated. Accordingly, we will primarilyaddress whether the financial disclosure statements filed byboard and commission members with the Ethics Board may bepublicly disclosed if all information, except for the name of theindividual filing the financial disclosure statement and the dateof such filing, is segregated from the record before it isdisclosed. Our answer to this issue will also answer thesecondary issue concerning whether, if the Ethics Board doesdecide to create a roster containing this same information, sucha roster must be made publicly available under the UIPA.

Section 92F-13, Hawaii Revised Statutes, sets forth fiveexceptions to required agency disclosure. Based upon the factspresented here, we need only examine two of the five UIPAexceptions, section 92F-13(4), Hawaii Revised Statutes, andsection 92F-13(1), Hawaii Revised Statutes. We will addressthese two UIPA exceptions separately.

II. RECORDS PROTECTED FROM DISCLOSURE BY STATE OR FEDERAL LAW

Section 92F-13(4), Hawaii Revised Statutes, provides thatagencies are not required to disclose "[g]overnment recordswhich, pursuant to state or federal law including an order of anystate or federal court, are protected from disclosure." Turningto examine whether the confidentiality provisions of the CountyCharter constitute "state law" under this UIPA exception, wefirst note that the UIPA exceptions are to be construed narrowly.See OIP Op. Ltr. No. 94-11 at 5 (June 24, 1994); OIP Op. Ltr. No.93-10 at 2 n.1 (Sept. 2, 1993). In addition, as we have statedin previous OIP advisory opinions, general rules of statutoryconstruction require us to give the plain and obvious meaning to



a statute when its language is plain and unambiguous. See OIPOp. Ltr. No. 94-11 at 10 (June 24, 1994); OIP Op. Ltr. No. 94-10at 6 (June 8, 1994). 2

Section 92F-13(4), Hawaii Revised Statutes, states clearlythat there must be a "state or federal law" or "an order of anystate or federal court" protecting the record from disclosurebefore the agency is permitted to withhold public access underthis UIPA exception. The Uniform Information Practices Code,which was drafted by the National Conference of Commissioners onUniform State Laws (1980) ("Model Code"), and upon which theLegislature modeled the UIPA, contains a nearly identicalexception to disclosure for "information that is expressly madenon-disclosable under federal or state law or protected by therules of evidence." Model Code § 2-103(a)(11) (1980). Thecommentary to this Model Code provision explains that

Subsection (a)(11) is a catch-allprovision which assimilates into this Articleany federal law, state statute or rule ofevidence that expressly requires thewithholding of information from the generalpublic. The purpose of requiring an express withholding policy is to put a burden on thelegislative and iudicial branches to make anaffirmative judgment respecting the need forconfidentiality.

Model Code commentary at 18 (emphases added).

In our opinion, a county charter provision, although enactedthrough the county council's legislative procedures, is a"county" law and cannot be construed as a "state" law forpurposes of section 92F-I3(4), Hawaii Revised Statutes. Statelaws are enacted by the State Legislature and have statewideapplication whereas county charter provisions and countyordinances apply only to the particular county.

In addition, permitting county governments to create

'Section 1-14, Hawaii Revised Statutes, provides that "[tjhewords of a law are generally to be understood in their most knownand usual signification, without attending so much to the literaland strictly grammatical construction of the words as to theirgeneral or popular use or meaning."


Robert Black


exceptions to disclosure through the enactment of county charterprovisions or ordinances would create a substantial possibilitythat records accessible in one county may be inaccessible inothers. We note that the UIPA was intended by the Legislature tohave uniform application throughout the State and counties. 3Consequently, we believe that a county charter provision in andof itself is not a "State" law which permits agencies to withholdpublic access to records under section 92F-13(4), Hawaii RevisedStatutes. However, there is a provision within the HawaiiConstitution concerning confidential financial disclosures whichrequires closer examination.

Article XIV of the Constitution of the State of Hawaii,entitled "Code of Ethics," provides that:

The people of Hawaii believe that publicofficers and employees must exhibit the higheststandards of ethical conduct and that thesestandards come from the personal integrity of eachindividual in government. To keep faith with thisbelief, the legislature, each politicalsubdivision and the constitutional conventionshall adopt a code of ethics which shall apply toappointed and elected officers and employees ofthe State or the political subdivision,respectively, including members of the boards,commissions and other bodies.

Each code of ethics shall be administered bya separate ethics commission. . .

Each code of ethics shall include, but not belimited to, provisions on gifts, confidentialinformation, use of position, contracts withgovernment agencies, post-employment, financialdisclosure and lobbyist registration andrestriction. The financial disclosure provisionsshall require all elected officers, all candidates

3The Legislature declared, in the legislative history of theUIPA, that "the current confusion and conflict which surround theexisting records laws are plainly unacceptable." S. Conf. Comm.Rep. No. 235, 14th Leg., 1988 Reg. Sess., Haw. S.J. 689 (1988);H. Conf. Comm. Rep. No. 112-88, Haw. H.J. 817 (1988).


Robert Black


for elective office and such appointed officersand employees as provided by law to make publicfinancial disclosures. Other public officials having significant discretionary or fiscal powers as provided by law shall make confidential financial disclosures. All financial disclosurestatements shall include, but not be limited to, sources and amounts of income, business ownership, officer and director Dositions, ownership of rearproperty . debts, creditor interests in insolventbusinesses and the names of persons representedbefore government agencies.

Haw. Const. art. XIV (emphasis added).

Although this constitutional provision establishes thatcertain government officials are required to file "confidentialfinancial disclosures," it is not clear whether the name of theindividual filing and the date of such filing must also be keptconfidential. Because this provision subsequently sets forth thetypes of financial information that must be disclosed in thefinancial disclosures and also because the term "financial" ispreceded by "confidential," it can be argued that this provisionintended to make the financial information contained in thefinancial disclosure statements confidential, not the name of theindividual filing and the date of such filing.

The Hawaii Supreme Court has stated that, when faced withconstitutional ambiguity, "'the fundamental principle inconstruing a constitutional provision is to give effect to theintention of the framers and the people adopting it.'" Pray v. Judicial Selection Commission, 861 P.2d 723, 728 (Hawaii 1993),quoting Cobb v. State, 68 Haw. 564, 565 (1986). In State v. Kahlbaun, 64 Haw. 197 (1981), the Court also decided that whenresolving constitutional ambiguity, the Court may "look to theobject sought to be accomplished and the evils sought to beremedied by the amendment." Kahlbaun at 202.

Among its changes to the ethics provision in the HawaiiConstitution, the delegates to the 1978 Hawaii ConstitutionalConvention added the provisions requiring public financialdisclosures for certain government officials and confidentialfinancial disclosures for other government officials. Theproceedings of the 1978 Constitutional Convention do not containany information which would shed light upon whether article XIVmakes only the financial information confidential or if every


Honorable Gore HokamaHonorable J.P. SchmidtMay 8, 1995Page 9

item of information on the financial disclosure statement, suchas the individual's name and date of filing, must also beconfidential. However, the basic purpose of the ethics code andthe financial disclosure requirement can be gleaned from theStanding Committee Report:

It is your Committee's belief that thesubject of ethics in government is one of greatimportance which warrants such revision. Becausethe Constitution organizes the powers andprocedures of government, "governing those whogovern," your Committee believes that it islogical and essential that the Constitutioncontain some basic guidelines as to the form ofethics regulation that shall apply to those whogovern.

Hawaii established what is generallyconsidered to be the first comprehensive stateethics code in the nation in 1967. The 1968Constitutional Convention of Hawaii sanctionedthis new development in Article XIV, Section 5.Since then public concern about ethical conduct ingovernment has markedly increased, and, inresponse, there have been many developments in thearea of codes of conduct and disclosure requirements for government officials in Hawaii and across the nation. Your Committee on Ethics notes this public concern, draws upon the pastdecade of experience with ethics reform, and puts forth a proposal which it believes will strengthen, broaden and protect the system of ethics regulation in government in Hawaii.

1 Proceedings of the Constitutional Convention of Hawaii of 1978 .at 565 (1980) (emphasis added).

Based upon the examination of the text of article XIV of theConstitution of the State of Hawaii and the committee reports ofthe Proceedings of the Constitutional Convention of the State ofHawaii 1978, we believe that the delegates to the 1978 HawaiiConstitutional Convention determined that two classes of publicofficials and employees must disclose their personal financialinformation.

As to the first class (elected officers, candidates, and



such appointed officials as determined by law), their duties weresuch that it was intended that their personal financialinformation must be publicly disclosed despite the existence of aprivacy interest in this information.' As to the second class(other public officials with significant discretionary or fiscalpowers), the delegates determined that these individuals muststill disclose their financial interests; however, such financialinterests would remain confidential.

Furthermore, it is our opinion that the delegates to the1978 Constitutional Convention could not have intended that thenames of individuals who must file, or who have filed,confidential financial disclosures would remain confidentialbecause the State or county laws, promulgated under the HawaiiConstitution, clearly establish who must file public financialdisclosures and who must file confidential financial disclosures.

Because, in our opinion, the Hawaii Constitution makesconfidential only the financial information disclosed by thosemaking confidential financial disclosures, we now turn to examinewhether the names of individuals filing confidential disclosuresand the date of such filings would be protected under the UIPA.

CLEARLY UNWARRANTED INVASION OF PERSONAL PRIVACY

Section 92F-13(1), Hawaii Revised Statutes, protects fromdisclosure "[g)overnment records which, if disclosed, wouldconstitute a clearly unwarranted invasion of personal privacy."In order to determine whether this exception applies to aparticular record, we look next to the UIPA's balancing testwhich provides that "[d]isclosure of a government record shallnot constitute a clearly unwarranted invasion of personal privacyif the public interest in disclosure outweighs the privacyinterests of the individual." Haw. Rev. Stat. § 92F-14(a) (Supp.1992).

The legislative history of this UIPA exception explains that"[o]nce a significant privacy interest is found, the privacy

4We believe the delegates balanced the individual's right toprivacy against the public interest in disclosure and determinedthat for elected officials, candidates, and other employees asprovided by law, the public interest in disclosure outweighed theprivacy interests of these individuals. See. e.g., Haw. Rev.Stat. §§ 92F-2(5) and 92F-14(a) (Supp. 1992).



interest will be balanced against the public interest indisclosure." S. Conf. Comm. Rep. No. 235, 14th Leg., 1988 Reg.Sess., Haw. S.J. 689, 690 (1988); H. Conf. Comm. Rep. No. 112-88,Haw. H.J. 817, 818 (1988). In previous advisory opinions, theOIP has concluded that the "public interest" to be consideredunder the UIPA's balancing test is "the public interest in thedisclosure of official information that sheds light on anagency's performance of its statutory purpose and in informationthat sheds light upon the conduct of government officials." OIP0p. Ltr. No. 93-20 at 7 (Oct. 21, 1993).

Because State and county laws clearly establish who mustfile public financial disclosures and who must file confidentialfinancial disclosures, we do not believe that these individualshave a significant privacy interest in their name or in the dateon which they filed their financial disclosure. On the otherhand, we believe that there is a strong public interest in thedisclosure of the names of the individuals who have filed and thedates of such filings because this would show whether they arecomplying with the filing requirements and whether the agencyresponsible for monitoring their compliance is perfot gling thisduty. Thus, we conclude that the public interest in thisinformation outweighs the privacy interests of these individuals,and the limited disclosure of the individual's name and filingdate on a financial disclosure statement, or disclosure of aroster containing this information, as contemplated by the Board,would not result in a "clearly unwarranted invasion of personalprivacy" under section 92F-13(1), Hawaii Revised Statutes. 6

CONCLUSION

None of the UIPA's exceptions to required agency disclosure

5The Legislature also stated that "[i]f the privacy interestis not 'significant', a scintilla of public interest indisclosure will preclude a finding of a clearly unwarrantedinvasion of personal privacy." S. Conf. Comm. Rep. No. 235, 14thLeg., 1988 Reg. Sess., Haw. S.J. 689, 690 (1988); H. Conf. Comm.Rep. No. 112-88, Haw. H.J. 817, 818 (1988).

Because Chairperson Hokama has only requested access to thename of the individuals who have filed confidential financialdisclosures and the dates of such filings, we need not addresswhether other information contained in the financial disclosuremust be disclosed under the UIPA.


APPROVED:


in section 92F-13, Hawaii Revised Statutes, apply to protect thenames of the individuals filing confidential financialdisclosures or the dates of such filings. Specifically, we donot believe that article XIV of the Hawaii Constitution prohibitsthe disclosure of this information under section 92F-13(4),Hawaii Revised Statutes. We also do not believe that thedisclosure of this information would constitute a "clearlyunwarranted invasion of personal privacy" under section92F-13(1), Hawaii Revised Statutes.

Accordingly, the name of the individual filing aconfidential financial disclosure statement and the filing datemust be made available for public inspection and copying underthe UIPA. Similarly, under the UIPA, a roster containing thenames of those individuals who have filed their confidentialfinancial disclosures and their filing dates, if such a roster iscreated by the Ethics Board, must also be made available forpublic inspection and copying.

Very truly yours,

Stella M. LeeStaff Attorney

Kathleen A. Callag anDirector

SML:scc: Christine Hankerson, Chair

Maui County Board of Ethics

Daniel J. MollwayHawaii State Ethics Commission


please provide a brief description of: the proposed ... · cannot contradict hrs § 291c-20. 2. ......

Documents