The Hawaii Supreme Court is considering a public records case that could have broad implications in the state’s ability to keep investigations into its own agencies secret.
In an hour-long hearing Thursday, justices heard arguments in a case brought by Honolulu Civil beat in 2016 after the Attorney General’s office refused to release the findings of its year-long investigation into the State Auditor’s office. The Legislature had requested the probe in 2015.
The justices focused on the extent of attorney-client privilege, when it should apply and what triggers it in such circumstances. They took the matter under advisement.
Civil Beat attorney Brian Black, seen here in this 2017 photo arguing before the Supreme Court, said Thursday’s hearing went well in the case involving the public release of the auditor’s investigation.
Cory Lum/Civil Beat
State Circuit Judge Keith Hiraoka ruled against the news outlet in April 2017, saying the investigation should be kept private in large part due to attorney-client privilege.
“I think the court understands the issues and is asking the right questions,” Black said after Thursday’s hearing. “We’ll see how they end up dealing with some pretty interesting questions as far as what the role of the attorney general is when it conducts these investigations.”
Attorney Kaliko’onalani Fernandes, representing the AG’s office, declined comment after the hearing.
Justices spent most of the hearing grilling Fernandes after she told them Civil Beat’s position threatens to undermine “one of the most sacred privileges.”
The justices did not dispute the importance of attorney-client privilege when it comes to providing legal advice. But they underscored the distinction between invoking the privilege protecting advice and counsel versus the findings of an investigation into a public agency.
Justice Richard Pollack highlighted how the Legislature asked the AG’s office to investigate the auditor’s office and that the attorney general at that point had the discretion to do so.
He explained that, under the law, this did not appear to be the Legislature seeking legal advice that should necessarily be protected, though aspects of the findings could be.
Black noted that Civil Beat expects the investigative report might require some redactions.
Hawaii Supreme Court Justice Richard Pollack, right, Justice Sabrina McKenna and Chief Justice Mark Recktenwald, seen here in a 2015 photo, asked tough questions of the state Attorney General’s.
Cory Lum/Civil Beat
Justice Sabrina McKenna and Chief Justice Mark Recktenwald each asked why witness statements, for instance, given to an investigator from the AG’s office should be protected under attorney-client privilege.
Fernandes said such statements should be protected because they are part of an official communication from the AG’s office to its client, the Legislature.
She said if Civil Beat had requested only the witness statements — as opposed to the investigation report that contained them — that those would perhaps then not fall under attorney-client privilege.
Black, however, pointed out that Civil Beat did not know what the investigation report included, so it would have been unable to ask for specific documents in it.
Senate President Ron Kouchi told Civil Beat at the time that he had a copy of the AG’s investigative report, but he would not share it publicly. He said there were concerns about confidentiality concerning personnel matters.
Jan Yamane was acting auditor at the time of the investigation, a role she assumed in December 2012 and held until April 2016.
Right around the time the investigation was completed, the Legislature voted to replace her with Les Kondo, who was serving as executive director of the state Ethics Commission. There was little explanation as to why the change was made.
Yamane is now executive director and legal counsel for the Honolulu Ethics Commission. She and Kondo have declined to comment on the case.
Fernandes said it is not the state’s position that every investigation the attorney general does would be protected by attorney-client privilege. But it was unclear what exactly would trigger it or why.
Pollack, visibly frustrated at times with her arguments, said if the Legislature can just claim attorney-client privilege when it asks for an investigation from the AG’s office, then even if criminal wrongdoing was found the Legislature could keep the findings secret if it hypothetically wanted to protect someone who was “friendly” with legislative leaders.
There’s no timetable for the court to make a decision on the case. The justices could clarify some portion of the law, such as the use of attorney-client privilege as a reason to withhold the investigation. But that would likely leave the lower court to take up other reasons the AG’s office has argued the report should remain private, including exemptions under Hawaii’s open records law.
Read the past court filings from the law center and AG’s office here.
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