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A state Circuit Court judge ruled Wednesday that the Hawaii Department of the Attorney General can keep secret its year-long investigation of the state auditor’s office.
The ruling came as part of a public records lawsuit Honolulu Civil Beat filed against the attorney general in September to gain access to the department’s investigative findings.
Attorneys for the state said that information should be kept private for a number of reasons, including maintaining its lawyer-client privilege.
Newly appointed Circuit Court Judge Keith Hiraoka agreed with the attorney general, and issued a ruling that could have sweeping ramifications for access to public records.
In essence, Hiraoka said that any records compiled by the attorney general’s office on behalf of a client — in this case the Legislature — should be kept private.
“The court concludes the report is a communication subject to the lawyer-client privilege,” Hiraoka said. “The court will maintain the report under seal.”
Civil Beat’s attorney Brian Black called Hiraoka’s ruling an overly broad interpretation of attorney-client privilege that doesn’t hold up to scrutiny under the public records law.
Black, executive director of the nonprofit Civil Beat Law Center for the Public Interest, said if Hiraoka’s ruling stands, any state agency would be able to withhold information from the public so long as the attorney general was involved.
“The average citizen should be concerned about any broad exemptions that are not tailored to the particular facts of the case,” Black said.
“That just creates scenarios where the government can avoid scrutiny, for example, by conducting a year-long fact investigation and having it handled by the AG’s office just so that they don’t have to ever talk about it.”
According to court records, the Legislature asked the attorney general to investigate the Hawaii Office of the Auditor in the spring of 2015.
The investigation was completed almost a year later, right around the time lawmakers voted to replace acting auditor Jan Yamane with Les Kondo, who at the time was the executive director of the Hawaii State Ethics Commission.
It was a surprising decision, not just because of Kondo’s fractious relationship with the Legislature over following ethics rules, but also because Yamane’s departure came with no explanation.
Senate President Ron Kouchi told Civil Beat at the time that he had a copy of the AG’s investigative report, but said that he would not share it publicly.
“I have asked the attorney general for written instructions as to how it will be available and to whom,” Kouchi said at the time. “There is some concern that it is a personnel matter and there are confidentiality issues regarding the individuals.”
Yamane is now the executive director of the Honolulu Ethics Commission.
Civil Beat filed its lawsuit against the attorney general in September after the agency refused to release the findings of its investigation. The news organization had requested a copy of the investigative report in April 2016.
Officials from the AG’s office initially denied the request in May, saying that the individuals involved have a “significant privacy interest.” Confidentiality was also necessary, they said, to “avoid the frustration of a legitimate government function.”
Several months later in August, the AG’s office offered up another reason for withholding the records — attorney-client privilege.
It’s that argument that Hiroaka seized upon when ruling from the bench Wednesday.
Hiroaka, who is Gov. David Ige’s former campaign manager, had made up his mind before entering the courtroom, which is not uncommon. He told Black that he intended to side with the attorney general’s office before hearing any oral arguments.
“It could be that this was a witch hunt or it could be that this was something that was justified and there was actual wrongdoing.” — attorney Brian Black
After Black pleaded his case, Hiraoka was unmoved. In fact, he was so explicit in his support for the state that Deputy Attorney General Stella Kam didn’t even stand up to defend her agency’s position in the courtroom.
Kam declined to comment on the results of Wednesday’s proceeding.
Black said he plans to appeal Hiraoka’s decision on behalf of Civil Beat. He said that the facts of the attorney general’s investigation should not be considered privileged information.
Black added that there’s a strong public interest in knowing what the agency discovered during its inquiry into the auditor’s office, one of the most important government watchdog agencies in the state.
“It could be that this was a witch hunt or it could be that this was something that was justified and there was actual wrongdoing,” Black said. “No matter what it is, there’s good reason for the public to know.”
The Civil Beat Law Center for the Public Interest is an independent nonprofit organization created with funding from Pierre Omidyar, who is also CEO and publisher of Civil Beat.org. Civil Beat Editor Patti Epler sits on its board of directors.