Legal opinions affirm secrecy by legislators
By Derrick DePledge
Advertiser Capitol Bureau
Attorneys for the state House and Senate have advised lawmakers that letters and other correspondence from their offices, including documents on official letterhead, are personal and do not have to be released to the public.
The legal opinions could have broad impact on the public's access to records from the state Legislature. Under this advice, official letters from state lawmakers regarding public policy could be kept secret as personal.
The state Office of Information Practices, which oversees the state's open-records law, contends that personal working papers could be withheld but that records kept or sent by lawmakers in an official capacity should be public.
But the Office of Information Practices has no legal authority to compel state lawmakers to release any records — it can only issue opinions — so the question may not be resolved unless a lawmaker citing the personal privilege is challenged in court.
The legal opinions stem from requests by The Advertiser and other news media for documents related to a man fired by Norwegian Cruise Line last year over allegations of sexual harassment. Eight state lawmakers, using official stationery from the Legislature, had signed a letter to the cruise line last August asking that the man be paid restitution and travel expenses.
Although the Norwegian letter was eventually released, House and Senate lawmakers have cited the legal advice when responding to requests for any other documents connected to the issue.
The attorneys have based their opinions on a section of the state Uniform Information Practices Act that describes exceptions to the law, including draft working papers, budget worksheets, unfinished committee reports and the personal files of lawmakers.
Constituent service
Susan Jaworowski, the attorney for Senate Democrats, said in a memo yesterday that courts traditionally respect the separation of powers and have refused to interfere on matters dealing with the legislative branch of government. She said the Norwegian letter could be considered a constituent service, which she described as a necessary but not official part of lawmakers' duties and a factor in why any other related documents should remain private.
Jaworowski also said that the Senate and House clerks, along with the state archives, are in charge of all official records and that individual lawmakers are not expected or required to save any documents. "They could be shredded at once or maintained in storage forever," she wrote. "I do not see any credible legal ground for classifying them as anything other than personal files."
"They're reading it way too broadly," said Leslie Kondo, the director of the Office of Information Practices. "Anything that is written in their official capacity as a state legislator is not a record that falls within their personal files."
Beverly Keever, a journalism professor at the University of Hawai'i at Manoa, said state lawmakers should have to disclose documents that are generated as part of their official duties.
"If it's on official letterhead it means that they are operating in their official capacity," Keever said. "And if it's a personal matter they shouldn't be using the letterhead."
Kondo's interpretation of the state's open-records law would give state lawmakers far less discretion to withhold documents than federal lawmakers enjoy under federal law. Members of Congress are exempt from the Freedom of Information Act, the federal law that grants public access to documents at federal departments and agencies.
Some sought advice
State lawmakers routinely give the news media letters and other documents on a variety of issues, either for their own political reasons or because they generally assume they are public records. With the controversy surrounding the Norwegian letter, some lawmakers have asked for advice about what documents are protected.
The Office of Information Practices ruled in April that the Norwegian letter was a public record that had to be disclosed and, after an initial delay, state Sen. Brian Kanno, D-19th (Kapolei, Makakilo, Waikele), voluntarily gave a copy of the letter to The Advertiser. Kanno later cited the personal privilege when Republicans asked him for the letter, but he gave Republicans a copy anyway.
The Advertiser also asked Kanno, Sen. Rosalyn Baker, D-5th (W. Maui, S. Maui), and Sen. Carol Fukunaga, D-11th (Makiki, Pawa'a), for any other related letters or correspondence, arguing that any records on official letterhead or sent within the capacity of their offices are public.
Kanno and Fukunaga never responded to the requests, as they are required to under the law. Baker wrote back that the law "provides an unconditional privilege for the personal files of legislators" and said she would not release any documents she might have at her office.
Kondo wrote to Baker that, in his opinion, the documents were not exempt from public disclosure. Baker then wrote to The Advertiser earlier this month and said that while she did not necessarily accept Kondo's interpretation of the law, she did not have any of the documents.
The Hawai'i Reporter, an Internet Web site on state politics and business, made similar requests through e-mail to all House and Senate lawmakers. House Speaker Calvin Say, D-20th (St. Louis Heights, Palolo, Wilhelmina Rise), writing on behalf of the House, cited the personal privilege and told Hawai'i Reporter that the documents were not subject to disclosure.
Reach Derrick DePledge at ddepledge@honoluluadvertiser.com or 525-8070.
