When Gov. Neil Abercrombie first refused to share the list of judicial nominees for a vacancy on the Hawaii Supreme Court, it was seen as a departure from past practice.
Now, a city agency is following his lead and using his rationale to justify not sharing the identities of the finalists for an important post on the semi-autonomous rail transit board.
The Honolulu Authority for Rapid Transportation Board of Directors on Thursday received a recommendation that former Senate President Bobby Bunda be picked as the board’s ninth voting member. Before settling on Bunda, a special subcommittee of the Board received 16 applications and conducted half-hour interviews with four finalists earlier this week.
Board Vice Chair Ivan Lui-Kwan read the Permitted Interaction Group (PIG) report aloud during the board meeting, and explained that revealing the identities of the applicants or even the finalists would discourage participation by future potential Board members. The report itself included the following statement:
The Group has determined that it will not disclose the names or application materials of the other 15 applicants. Appointment of the ninth voting member is appointment to an initial two-year term for a volunteer, unpaid service opportunity, and we want to encourage (emphasis in original) people to volunteer for this kind of service; we note that in less than two years, the Board will have to repeat this process again, and the Group believes that having to disclose the names of the other unsuccessful applicants will serve to discourage applicants next time. The Group determined that the public’s interest in knowing the identities of those not selected is outweighed by the privacy interests of those same civic-minded individuals, and by the fact that the Group wishes to encourage people to apply the next time around, which will happen within two years. The public will have every opportunity to comment on the Group’s recommendation, and should the Board reject the Group’s recommendation, the Group will reconvene to make another recommendation to the Board, at which time the public will again be able to comment regarding that person.
The PIG includes five of the board’s eight current eight voting members — Lui-Kwan, Board Chair Carrie Okinaga, Finance Committee Chair Don Horner, Human Resources Committee Chair Keslie Hui and Project Oversight Committee Chair Damien Kim. The group met privately on numerous occasions in August to come up with criteria and review applications — all without any public oversight.
Lui-Kwan said those five members voted unanimously, so it’s unlikely the Bunda recommendation would be rejected. The full board could take up the matter at its next meeting next week.
Lui-Kwan also said Corporation Counsel provided the PIG an opinion from the Offices of Information Practices that supports its decision not to reveal the names of applicants or finalists. And while the opinion was not included in the PIG report, the OIP opined in 1991 that “Information about unsuccessful board or commission applicants, and about any applicant before the Governor’s nomination, cannot be disclosed to the public because disclosure of this information would constitute a clearly unwarranted invasion of privacy.”
A dozen years later, the OIP said that the names of judicial nominees could be disclosed because “the public interest in disclosure outweighed the privacy interests of the nominees, and the disclosure of the nominees’ identities did not result in a clearly unwarranted invasion of personal privacy.” Gov. Linda Lingle and Hawaii Supreme Court Chief Justices Ronald Moon and Mark Recktenwald sought public input before appointing judges.
Supporters of that practice warned that Abercrombie’s decision could lead to the public not being able to evaluate whether nominees were picked for the right reasons, or whether they were the best choice among the candidates.
Abercrombie says he hopes to attract high-quality candidates by promising not to tell the public — or the lawyers’ firms and clients — who had tried, and failed, to secure judgeships.
Call it the Abercrombie Doctrine. And count the HART Board among the early adopters.
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