Debate over meeting secrecy continues
By Jan TenBruggencate
Advertiser Kaua'i Bureau
LIHU'E, Kaua'i — Kaua'i County is refusing to release the minutes of a County Council executive session that the state Office of Information Practices said was improperly held behind closed doors.
The county said it is only doing so until it can "clarify" its differences with the OIP. But County Attorney Lani Nakazawa's position appears firm. She insists that everything said in the Jan. 20 executive session is protected and may not be disclosed to the public.
The disagreement has led to angry exchanges between Nakazawa and OIP director Leslie Kondo, and the parties appear to be at a stalemate.
In the latest letter, sent yesterday, Kondo said his office has identified which parts of the executive session can be kept secret and which must be released, and told Nakazawa that if she doesn't release the rest by the end of today, the county will not be acting in good faith.
But Kondo appears to have no authority to force state and county agencies to comply with the state's open-meetings law.
The dispute involves a Jan. 20 meeting in which council members went into an executive session, ostensibly to discuss conducting an investigation of the Kaua'i Police Department. Police Commission Chairman Michael Ching protested to the OIP, asking whether the meeting had been properly held under the state's Sunshine Law, which requires public notice of topics to be discussed and limits what kinds of things are kept from the public in executive session.
The OIP studied the council meeting minutes and concluded that council members talked about several issues not covered by what they said they were going to cover, and not protected under law.
"If they said they were going to talk about bananas, I assume they were going to talk about bananas. But they didn't even talk about fruit," said Richard Stauber of Lihu'e, who regularly observes council meetings and has filed complaints about council secrecy.
In fact, the OIP said council members were still discussing the purpose of the executive session after they went into the session — something OIP said should clearly have taken place during the public portion of the meeting.
The council's readiness to take sensitive issues into closed-door sessions has frustrated some political observers. 'Oma'o resident Andy Parks said problems are longstanding.
"The council has been wrong for years. The council goes into an executive session at the drop of a hat. They come out of these executive sessions having deliberated toward a vote. They come out, and without saying a word, vote unanimously," Parks said.
Ching said he has now hired an attorney — as a citizen, not as the chairman of the Police Commission — to pursue the open-meetings issue. He said he originally complained because he thought it was the commission, not the council, that had the authority to investigate the police. When he later found out that council members talked about a range of issues never disclosed in announcing the closed-door session, he grew concerned.
But Nakazawa disagrees with the OIP conclusion that the council did anything wrong.
"Our view is that the whole discussion is privileged. ... We view the discussion to have been properly posted," she said.
But she conceded that while some of the discussion may be properly kept secret under the open-meetings law, there may be other parts that are protected under other state laws. Those may include privacy of personnel issues, discussions with county attorneys about ongoing lawsuits against the police department, and discussion of ongoing internal investigations, she said.
Nakazawa said investigations of the police department are such sensitive matters that blanket protection is appropriate.
"It makes no sense to let anyone know what's to be investigated and how and who," she said.
Kondo said there is no legal authority for keeping such discussions by the County Council secret.
"We do not believe that the council can continue to refuse to comply with or ignore our opinion that the majority of the record must be disclosed," Kondo wrote in a May 23 letter to Nakazawa. He also said the county lacks the authority to "put on hold" the release of the minutes while it pursues other options, as it did when it asked the state Department of the Attorney General for an opinion on the issue.
Nakazawa wrote to ask OIP to specifically identify which passages in the Jan. 20 meeting minutes could be released and which could be legitimately withheld.
Kondo's staff has done so, but it was not clear whether that will cause the county to reconsider its reluctance, since Nakazawa in her June 2 letter said it is also her opinion that the entire executive session is protected under the attorney-client privilege.
Reach Jan TenBruggencate at jant@honoluluadvertiser.com or (808) 245-3074.
