The Office of Hawaiian Affairs had to get an opinion from Hawaii’s Office of Information Practices last year before it would confirm that its employees were public — and subject to Hawaii’s open records law.

Now, because OIP has a new director, they’re asking the question again.

Last year, OHA claimed its employees were not “public employees” because the bulk of its revenue comes from ceded lands, which it says are not “public funds.”

This year, the agency is making the same argument in response to an inquiry from Civil Beat.

“I think the idea is again to get OIP’s take on whether or not trust-funded employees are open and accessible to the public,” Ernest Kimoto, OHA’s corporate counsel, told Civil Beat Tuesday.

Last year, Kimoto posed the same question to then-Acting Director Cathy Takase. She responded that OHA is not exempt from the law.

Takase made clear in a Nov. 3, 2010 opinion: “OHA is a government agency, its employees are ’employees of the agency’ whose salary information is thus subject to disclosure under HRS 92F-12.”

Takase said there isn’t “any indication that our Legislature intended to make a distinction among government agency employees based upon an agency’s source of funding for its payroll.”

She concluded her opinion saying, “OIP believes that the phrase ’employees of the agency’ is not ambiguous, and that its common and ordinary meaning includes all (emphasis added by OIP) individuals employed by the agency without regard to what funds are used to pay their salaries. This meaning is consistent with the purposes and policies of the (Uniform Information Practices Act). See HRS 92F-2.”…

Kimoto notes that Takase is no longer in office — she was replaced by Gov. Neil Abercrombie earlier this year. The new director is Cheryl Kakazu Park.

“Ms. Kakazu is an attorney, her legal interpretation might be different,” Kimoto said.

The bulk of OHA’s money comes from revenues from ceded lands. But it also gets funding from the state’s general fund and other funding from the federal government. Its employees also receive state benefits, including retirement and health.

Hawaii state law addresses OHA employees and benefits, saying OHA board members, its administrator and employees “shall be included in any benefit program generally applicable to officers and employees of the state.”

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