Our pursuit of communications from the state Judicial Selection Commission to the governor about potential judges got a boost Friday.

Hawaii Office of Information Practices Acting Director Cathy Takase told Gov. Linda Lingle that a prior opinion and court ruling support the release of judicial application summaries requested by Civil Beat. She gave the governor 10 business days to respond.

The summaries are sent to the governor by the Hawaii Judicial Selection Commission along with the list of potential appointments for each judicial vacancy. Commission deliberations on who to nominate are required to be confidential by the Hawaii Constitution and commission rules [pdf].

On Aug. 3, Civil Beat asked to review all written correspondence between the Governor’s Office and the commission since Jan. 1 so we could determine for ourselves if the commission expressed, implicitly or explicitly, preferences for one appointee or another, particularly in the writing of nominee biographies sent to the governor.

The governor’s office provided Civil Beat with the list of nominees, but declined to disclose anything else. After we reiterated the government’s legal obligation to furnish a list of the documents being withheld, the governor’s office acknowledged that undated applicant summaries for 20 nominees for judicial vacancies were the items not being released.

Lingle Chief of Staff Barry Fukunaga told Civil Beat a privacy exemption to the Uniform Information Practices Act was the reason the records were being withheld. The Governor’s Office also identified the commission’s confidentiality rule as further rationale.

Takase’s letter to Fukunaga pointed to OIP Opinion Letter Number 03-03 [pdf]. That 2003 decision stated the commission’s confidentiality rule “does not extend to the governor” and that “disclosure of the list of nominees would not, due to the importance of judicial appointments, be a clearly unwarranted invasion of personal privacy of the nominees,” Takase wrote. That opinion is in turn based on a 1993 ruling by the Hawaii Supreme Court in Pray v. Judicial Selection Commission of the State of Hawaii.

Neither OIP nor any Hawaii court has ever specifically determined whether the applicant summaries sent to the governor are covered by the confidentiality rules that deal with private commission conversations or are instead subject to the disclosure law that generally applies to communications received by the governor.

Civil Beat had argued that if the documents can’t be released because they would reveal deliberations, then that might mean they contain something that the governor herself shouldn’t be privvy to — the thinking of the commission.

Takase told Civil Beat Friday that unless the records are released, or Civil Beat backs off (which it’s not going to do), OIP will author a new opinion pertaining to the applicant summaries. Takase asked the governor’s office to notify OIP within 10 business days of either an intent to provide the records to Civil Beat or provide OIP with additional justification for withholding the records.

View the full letter below:

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