Hawaii has no law requiring government agencies to take proper care of public records. But that could change under a bill now moving through the Hawaii Legislature.

Passed by the Senate Committee on Ways and Means last week, Senate Bill 2294 would require government agencies to take “reasonable care in the maintenance of its public records,” and issue instructions and guidelines to fulfill that requirement.

The bill, which is set next for a full Senate vote, was drafted in response to a 2014 state Supreme Court finding that agencies, currently, are under no such obligation.

Nathan Eagle/Civil Beat

Government agencies are required to provide access to records, but not to maintain them in good order.

Nathan Eagle/Civil Beat

In Molfino v. Yuen, Geoffrey Molfino sued Hawaii County and its planning director, Christopher Yuen, for negligence, alleging he’d suffered monetary damages because they failed to exercise reasonable care in maintaining files.

Molfino bought a piece of property in June 2003, planning to create a subdivision. He visited the county Planning Department to make copies of the property’s tax file.

From the information Molfino saw, he understood that his property might only “consist of two pre-existing lots,” according to the suit. However, missing from the file were letters to and from a Realtor to the previous Planning Department director, dated in 2000, which stated that the property consisted of six pre-existing lots.

Unaware of this, Molfino, wrote a letter in December 2003 to the department requesting a pre-existing lot determination. Yuen responded to Molfino in June 2004 that his property consisted of two pre-existing lots.

Meanwhile, Molfino sold the property in July 2004 to Mikhail Pruglo, who later applied to subdivide the property.

“This would be an unreasonably high standard to impose on government agencies and potentially invite claims and litigation whenever requests for records are denied.” — Donna Leong, Honolulu Corporation Counsel

The Realtor’s letter then re-emerged and the Planning Department granted Pruglo a six-lot subdivision.

Molfino discovered that Yuen admitted to the mistake and filed a lawsuit.

The county argued that its Planning Department Rules of Practice and Procedure and state statutes require it to provide access to public records, but not necessarily to maintain them in good order.

The case went all the way to the Supreme Court, which determined that there was no law that requires the county to exercise reasonable care with its public records.

In its 2014 ruling, the court said it was up to the Legislature to establish such a requirement.

Enter SB 2294.

In written testimony opposing the bill, Honolulu Corporation Counsel Donna Leong said that requiring government agencies to do more than what they must do now under the Uniform Information Practices Act could expose them to unprecedented liability.

“This would be an unreasonably high standard to impose on government agencies and potentially invite claims and litigation whenever requests for records are denied,” said Leong.

But Jeanne Ohta, Aina Haina Community Association president, said in written testimony that government agencies need to be held accountable for file maintenance.

“As an example, we made numerous requests for a file from a city agency,” said Ohta. “These requests were made over several months and the file was never provided.”

Ohta said the association was told that the file was misplaced, lost or “never existed.”

She said that this was puzzling as the requests for the file was made according to its number.

A similar version of the bill stalled in the Legislature last session. If it is approved this session and signed by the governor, agencies could be fine up to $2,000 per violation for failing to follow the new rules.

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