Updated 6:50 p.m., 11/12/2014
First Circuit Judge Rhonda Nishimura has granted Honolulu Civil Beat’s request for a preliminary injunction to require the Hawaii State Ethics Commission to make public the financial disclosure statements of certain state board members.
Nishimura ruled from the bench on Wednesday morning in a case brought by the Civil Beat Law Center for the Public Interest on behalf of the news outlet.
“The Legislature found that the public has an overriding interest in the release of financial disclosure statements by members of the state’s 15 most powerful boards and commissions,” said Brian Black, executive director of the Law Center.
“Judge Nishimura deferred to the Legislature and ordered the State Ethics Commission to disclose records requested by Civil Beat,” he said. “The Ethics Commission now must decide whether it will continue to defy the Legislature by appealing Judge Nishimura’s decision.”
Ethics Commission Executive Director Les Kondo said he expects the commission to consider the ruling and how to proceed at its meeting next Wednesday. He said he hopes the Attorney General’s office will participate in that discussion.
Update The state Attorney General’s office, which represents the commission, is reviewing the court’s decision and considering its options, including whether to appeal, said Anne Lopez, the AG’s special assistant.
Attorney General David Louie said in a statement that he continues to believe the disclosure law should be applied prospectively, not retroactively.
“Members of boards and commissions, who submitted financial disclosures before Act 230 became effective, did so with the understanding that their privacy interests were constitutionally protected and had a reasonable expectation that they would remain so,” he said.
The Ethics Commission in September reaffirmed its decision to withhold the financial disclosure statements of more than 100 current state board members who filed their annual reports before a new law took effect July 8.
The law, unanimously approved by the Legislature in April, added 15 powerful boards to the list of those that already must disclose their financial interests publicly. But there’s an ongoing debate over whether it should apply to members who filed their disclosure statements before it took effect.
Kondo, who serves as general counsel to the commission, has interpreted the law to require the release of all the current members of the boards who fall under the new requirement, regardless of when they filed.
However, the five-member commission has chosen to follow the advice of the Attorney General’s office and only release the reports of those members who filed after July 8.
The commission’s policy has resulted in the public disclosure of reports for only about 22 of the roughly 140 people who serve on the boards that now have to file publicly. It’s also created a situation in which boards have some members who have disclosed their financial interests while others have not.
Kondo has told the commission he is concerned that it could be more than a year before the public gets to see many of the others because next year’s report is a “short form” that lets members simply check a box that says “no change” from the previous year. The next deadline for the “long form” reports is May 31, 2016.
Under the state’s open records law, Civil Beat on July 14 requested the 2014 financial disclosure statements of the members of the University of Hawaii Board of Regents, Land Use Commission and Agribusiness Development Corporation Board of Directors.
Kondo denied that request in part on July 29 after the commission voted against releasing any of the financial disclosure statements filed by board members before the new law took effect. He did release the reports of four members who filed after July 8.
The Civil Beat Law Center filed a complaint in court Sept. 25 challenging that decision.
The financial disclosure statements identify in broad monetary ranges how much a person earns each year and the source of that income; property and business interests; stocks; memberships on outside boards or trusts; and creditors.
Supporters say the new law allows the public to help uncover conflicts of interest of board members. Kondo said the commission lacks the resources to thoroughly review all of the reports and needs to rely on the public for help.
Critics say the law infringes on their personal privacy.
By late July, 26 members across 10 state boards had quit since the Legislature passed the bill in April. In their resignation letters, they cited privacy concerns, personal reasons and fears over how people might use the information if it is posted online.
Gov. Neil Abercrombie let the bill become law without his signature after arguing that the legislation could hurt women and was unfair to members who joined a board with the understanding that their financial disclosures would remain confidential.