A bill to shield most documents and correspondence relating to residential leases issued by the Department of Hawaiian Home Lands from public disclosure will get a second look from the Senate Committee on Hawaiian Affairs on Wednesday.

Senate Bill 2837, which would prevent public disclosure of most lease records except for the actual lease documents, was proposed by DHHL and is included in Gov. Neil Abercrombie‘s legislative package.

The measure has drawn the support of several Hawaiian organizations, including DHHL and the Office of Hawaiian Affairs, but was opposed by the Office of Information Practices. More importantly, perhaps, it was greeted skeptically by Sen. Clayton Hee, vice-chair of the committee and chairman of the Committee on Judiciary and Labor, where the bill will be referred next if it passes this initial hurdle.

The bill was aired at an initial committee hearing on Friday. DHHL testified the change is needed to resolve “ambiguities” in existing law and protect sensitive personal information provided by lessees or lease applicants.

But DHHL administrator Jobie Masagatani, who also serves as chair of the Hawaiian Homes Commission, acknowledged the measure was prompted, at least in part, by recent news media scrutiny of DHHL’s management of its lease programs and related requests for lease records.

DHHL controls some 200,000 acres statewide which were set aside by congressional action nearly a century ago to aid in the “rehabilitation” of Native Hawaiians through a self-managed homestead program.

A series of investigative reports by the Honolulu Star-Advertiser last year put a spotlight on allegations of selective enforcement of rules, political influence, and alleged mismanagement of the department’s stock of residential properties. Similar allegations have plagued the department through its nearly 100-year history.

The proposed new exemption would apply to residential leases, and would not extend to commercial leases or revocable permits issued by the department, according to testimony last week. However, the language in SB2837 would create a blanket exemption applying broadly to almost all residential lease documents.

It would exempt from disclosure any government records “which include any personal data received or recorded by the department of Hawaiian home lands related to a homestead applicant or lessee, or any correspondence between the department and a homestead applicant or lessee.”

Masagatani testified the department does not know how to deal with public record requests it has received “for specific homestead application files and homestead lease files that include personal contact information, genealogies, finance and loan documents, successorship forms, permission forms regarding the use of records in the file and other correspondence.”

She said lease applications and lease records often contain highly sensitive personal information, and the possibility that it might have to be publicly disclosed will have a “chilling effect” on communication between the department and its Hawaiian beneficiaries.

The expanded exemption from public disclosure would block requests from “people who have no good reason except to cause humbug,” Masagatani said.

Current law already exempts government records that would constitute “a clearly unwarranted invasion of personal privacy,” including medical and psychiatric, and information about an individual’s finances, financial history, or credit worthiness.

When Sen. Hee questioned the kind of personal information still at risk, Masagatani pointed to documents in which current lessees designate successors who would be able to take over the property at the death of the original lessee.

Such designations are “very sensitive,” Masagatani said, because they involve internal relationships within families.

“Maybe they have 12 children, but only want their third son as successor,” she said.

But Hee remained unconvinced.

“I guess I don’t see the sensitivity,” he said. “This is a public trust, public land, public leases.”

As to the naming of successors, “I’m not sure why they should not know.”

He shrugged. “I don’t see what’s so secretive about that.”

Hee and Masagatani briefly sparred over public disclosure of information about applicant’s “blood quantum,” used to determine whether applicants meet the requirement to be one-half Hawaiian in order to qualify for Hawaiian Homes Commission residential leases.

Masagatani said an OIP opinion dating back over 20 years requiring disclosure of such information conflicts with DHHL’s administrative rules, which prohibit public disclosure without the written consent of the individual involved. She called for the statute to be brought in line with the rules.

“But what if the person does not have the required blood quantum?” Hee asked, suggesting the information must be made public in order to provide accountability.

“Why wouldn’t you bring your rules into compliance with the statute?” Hee asked, instead of changing the statute to comply with the rules.

“Rules change as times change,” Hee said. “Respectfully, I don’t hear anything compelling, of the nature that it should be secretive.”

In written testimony, OIP director Cheryl Kakazu Park cited several reasons for opposing the measure. The types of personal information referred to, including “personal contact information, genealogies, finance and loan documents,” would already fall under the personal privacy exemption, Park said.

In addition, the bill would not require DHHL to disclose public information after removing confidential material, something all other state and county agencies are required to do. And Park said the proposed exemption goes far beyond sensitive personal information by making all correspondence confidential. Park suggested the bill might even prevent disclosure of the names of individuals granted DHHL leases.

OIP’s testimony also noted that the requested exemption would be contrary to well-established policies that have been long recognized in state law. For example, there is a very strong public interest in disclosure of the names of anyone borrowing money from a state or county loan program, as well as the amount and current status of the loan. Carving out an exception for the same kind of information held by DHHL would run contrary to the public interest.

The Hawaiian Affairs Committee deferred decision making on the measure to allow DHHL staff to sit down with staff from OIP and the committee in an effort to narrow the proposed exemption by identifying specific personal information requiring additional protections.

The bill will be taken up again on Wednesday, February 5, at 2:45 p.m. in room 224 at the State Capitol.

Read Ian Lind’s blog at iLind.net.

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