If reality followed rhetoric, Hawaii residents wouldn’t encounter difficulties when they go to government agencies and ask to examine public records.

After all, the state’s main law pertaining to public records, known as the Uniform Information Practices Act, or UIPA, is strong on rhetoric.

It sets out what appears to be a very strong policy favoring the public’s right to know: “…the legislature declares that it is the policy of this State that the formation and conduct of public policy — the discussions, deliberations, decisions, and action of government agencies — shall be conducted as openly as possible.”

Public records (U.S. map)

If public records are not of a minimum quality standard, it nullifies the very reason they need to be public.

And with regard to government documents, the law goes on to generally require all government records be open to public inspection by any person during regular business hours, unless the records are one of a limited number of exceptions.

But reporters and activists know that actually getting access to important public documents can be frustrating and time consuming. And last month, in a little-noticed case, the Hawaii Supreme Court appears to have added its own caveat to existing law.

In a case that only indirectly involved the UIPA, the high court ruled that while the law guarantees public access to government records maintained in agency files, it doesn’t impose a duty on those agencies to “maintain government records in accurate, relevant, timely, and complete condition at all times.”

In other words, the court’s message to public agencies seems to be: You’ve got to show the public what’s in your files, but if some records go missing, through accident, negligence, or inattention, that’s just too bad, at least from the inquisitive public’s point of view.

The case is Molfino v. Yuen, which was decided by the court on Nov. 13, 2014.

The plaintiff’s application asking the Supreme Court to take up the case summarized the key legal issue:

“The policy question before this court, is whether the Hawaii County Planning Department, which issues critical rulings regarding subdivisions on Big Island properties, has a duty to exercise reasonable care in the maintenance of existing subdivision records.”

“Your first reaction may be, ‘Well, duh,’” attorney and law blogger Robert Thomas commented on his blog, InverseCondemnation.com. “But like many other things in the legal business, it isn’t necessarily as simple as all that.”

Just what they mean more generally, and for public access to government records in practice, remains to be seen. But anything that might truncate a broad view of the public’s right to know is worrisome.

Here’s how this case, and the ensuing court decisions, have unfolded. In mid-2003, the plaintiff in the case, Geoffrey Molfino, and his wife, bought a 49-acre property with the intention of subdividing it. Prior to the purchase, Molfino said that he reviewed and copied the entire file on the parcel maintained by the Hawaii County Planning Department. The file contained documents showing that the county would allow subdividing into a maximum of two lots.

Following a second search of the files which again turned up no evidence that prior approval had been given for more than two lots, Molfino wrote to the planning director, Chris Yuen, requesting approval of a 7-lot subdivision based on the county’s applicable code. After a delay of six months, Yuen replied on June 2, 2004, saying the county would only recognize two pre-existing lots. In the meantime, though, Molfino sold the property for a 50-percent gain.

This second sale closed in July 2004. The new owner promptly hired several consultants, including former Planning Director Sidney Fuke, to prepare an application seeking essentially the same 7-lot subdivision that Molfino had sought.

But one thing was different this time around. The application prepared by Fuke included a copy of a May 2000 letter from the then-planning director, Virginia Goldstein, to a real estate agent representing C. Brewer, which owned the property at that time.

That letter, which was allegedly not in the file either of the times Molfino went through the documents, or when Yuen rejected his subdivision request, stated that the property had six pre-approved lots. No explanation appears to explain why the document was missing from the county file or how it later came into Fuke’s possession, although the court noted that there was no allegation or evidence that it was “intentionally or maliciously removed.”

And this time around, Yuen initially approved subdividing into six lots and later, due to a technical error, gave approval for a seventh lot, based on the county’s policy of honoring prior determinations.

When Molfino learned that Yuen had turned down his subdivision request because the prior approval letter from 2000 was not in the file at the time, but approved essentially the same request from the next owner, he filed suit against the county.

The lawsuit alleged that if the missing approval letter from 2000 had been in the file, Molfino’s subdivision request would have been approved. But the letter was “temporarily missing,” his request was denied, and Molfino said it cost him lost profits that might have been earned on the potential subdivision.

The case has moved all around the court system. It was filed in Hilo’s Third Circuit Court, and later shifted to Federal District Court in Honolulu because it contained several claims of constitutional violations. Once these were dismissed, the case went back to state court, where Judge Greg Nakamura sided with the county.

The case was then appealed to the Intermediate Court of Appeals, which upheld Nakamura’s ruling, and ended up before the Hawaii Supreme Court.

During oral arguments, Malfino’s attorney, Peter Van Name Esser, tried to clarify that he didn’t expect perfect record keeping. “This case is not about flawless county files, perfect records, absolutely and completely correct information,” Esser argued.

But, he asserted, the county does have an obligation to exercise “reasonable care.”

The question for the court, Esser argued, was not whether the county had a duty to keep records in complete and perfect order at all times. “The question is whether there’s any duty at all,” Esser argued.

This duty to keep accurate records follows logically and legally from the duty to make public records available to any person on request, Esser said.

The county disagreed. State law — and county rules — “mandates inspection of public records, not the maintenance of those records.”

That sounds a little like: If we’ve got it, you can see it. If we can’t find it, tough luck.

If changes to the law are needed, those should come from the legislature and not via a fix imposed by a judge, the Supreme Court concluded.

And the courts, including the Supreme Court, agreed. The court rulings, right up to the high court, are consistent and clear.

It’s key finding is brief and to the point. Whether the county had a legal duty to exercise “reasonable care,” or any level of care whatever, is purely a question of law, according to the court. And in looking at the public records law, the court found no specific applicable provisions.

The court noted the law contains penalties if public records are improperly withheld from the public, or if confidential personal records are improperly made public, but no penalties for problems like the “temporarily missing” letter, which Molfino experienced.

“HRS Chapter 92F, when read as a whole, does not reflect a legislative intent to impose tort liability for merely negligent acts or omissions of government agencies in the maintenance of public records,” the court concluded.

“In other words, HRS Chapter 92F does not create a statutory legal duty, flowing from the Planning Department to Molfino, to maintain a property’s TMK (Tax Map Key) file in accurate, relevant, timely, and complete condition at all times, such that the Planning Department should be liable for negligence because the May 2000 letter was temporarily missing from the file.”

If changes to the law are needed, those should come from the legislature and not via a fix imposed by a judge, the Supreme Court concluded.

Robert Thomas, the attorney and blogger, said he wasn’t at all surprised by the court’s ruling. “I didn’t think it was a close call at all,” he said in a telephone interview.

“If you wish they should have a duty to maintain these records, and maybe they should, then go down to the legislature,” Thomas advised.

This could turn out to be a very narrow decision restricted to questions of legal liability and potential damages, and won’t trickle down in a way that makes it harder for the public and the press to gain access to public records.

But it also certainly won’t make it any easier, and the finding that there is no duty of care when it comes to maintaining public records could encourage or condone foot-dragging among agencies and personnel already reluctant to open their files to public view.

About the Author

  • Ian Lind
    Ian Lind is an award-winning investigative reporter and columnist who has been blogging daily for 15 years. He has also worked as a newsletter publisher, public interest advocate and lobbyist for Common Cause in Hawaii, peace educator, and legislative staffer. Lind is a lifelong resident of the islands. Read his blog here. Opinions are the author's own and do not necessarily reflect Civil Beat's views.