For the second time in two years, the Office of Hawaiian Affairs has asked Hawaii’s open records agency to decide whether OHA employees are public — and subject to public disclosure laws.

But this time, the request covers more employees.

Last year, OHA said it had 145 employees. This year, OHA says it has added 18.5 positions, bringing its total employee count to 163.50 — an increase of 13 percent.

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

The number of OHA employees that are partially-funded by taxpayer-supported general funds is the same as last year: 62.

The additional 18.5 positions are paid for by trust-fund monies.

Civil Beat asked OHA for a copy of the four-page letter it sent to the Office of Information Practices. In the letter, OHA corporate counsel, Ernest Kimoto, again argues that its employees aren’t public if their salaries are “totally funded by ‘non-public’ trust funds.”

Indeed, the bulk of OHA’s money comes from revenues from ceded lands. It also gets funding from the state’s general fund. It gets other funding from the federal government.

It’s clear OHA recycled the letter they sent last year — but forgot to make a few edits, or proofread the document before sending it.

Here’s an example:

“OIP has previously responded to a very similar request submitted to OHA to the former OIP Director … As lawyers may disagree as to the interpretation of laws in a complex matter, I felt that an (sic) from you would be appropriate.”

Kimoto also forgot to update the number of employees he claims are “totally funded” by “non-public trust funds.” His letter still cites the old number from last year.

It’s worth noting that these employees who are “totally funded” by trust funds are also fully eligible to draw state health-care benefits and participate in the state pension fund. And it’s worth noting that the OHA board is elected by all Hawaii voters.

OIP has already ruled on this issue once before.

Last year, former OIP director Cathy Takase stated that OHA is not exempt from the law.

Takase said in her Nov. 3, 2010, letter that 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 letter 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.”…

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

But because OIP has a new director this year, OHA is asking the question again.

Read OHA’s letter:

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