The high court ruled in a 59-page opinion Wednesday that boards and commissions are not required by law to close meetings to discuss personnel matters. To do so, they must prove that they are protecting a legitimate privacy interest.
The court also reaffirmed an interpretation of state law that boards can only close meetings to discuss matters with their attorneys and not issues of public policy.
The case stems from several Honolulu Police Commission meetings in January 2017 during which the commission moved into closed session to discuss matters such as a federal target letter addressed to the former police chief and his retirement benefits under the belief that Kealoha’s privacy had to be protected. The Civil Beat Law Center for the Public Interest sued and commissioners responded that closing the meeting was their only option.
The Supreme Court now says that’s not so.
Former Honolulu Police Commission Chair Max Sword, left, talks to media during a 2017 meeting shortly before going into closed session.
Cory Lum/Civil Beat
“Hopefully, this will lead to a little better behavior by boards when it comes to personnel issues and attorney consultations,” Brian Black, executive director for the law center, said.
Duane Pang, a deputy corporation counsel who represented the city in the case, did not return a phone call Wednesday afternoon.
Loretta Sheehan, the current chair of the police commission, welcomed the court opinion.
“It brings much needed clarity to the area of open meeting law interpretation,” she said. “I’m very glad this opinion came down.”
The law center also alleged that the commission’s violation of Hawaii’s open meeting law should invalidate Kealoha’s retirement package. The circuit court had dismissed that part of the complaint, but the Supreme Court sent the question back to the lower court.
The Supreme Court didn’t rule on that question over worries that it would violate Kealoha’s due process privileges, writing that Kealoha must be a party to the proceedings. If he can’t, the circuit court needs to determine if the case can continue.
Kealoha and his wife, former deputy city prosecutor Katherine Kealoha, are currently on trial in federal court, accused of framing her uncle for the theft of their mailbox and lying to federal investigators.
No Easy Privacy Exceptions
The justices laid out a framework for how state boards should weigh privacy interests. Board members can’t simply close a meeting by claiming a privacy interest exists — they must prove it.
The need for privacy should be determined case-by-case, the Supreme Court wrote.
“Some circumstances may reduce or perhaps entirely defeat the legitimacy of a person’s expectation of privacy,” the court opinion says.
The court also ruled that certain information that’s required to be publicly disclosed — such as salaries, employee names and job titles — can’t be the basis of closing a meeting.
Information already made public can’t become private again, the high court said.
Sheehan plans to discuss the court opinion at the commission’s next meeting and said its lawyers still need to review its potential impact.
Sheehan said the opinion may not change the commission’s operations too much because many executive sessions, such as those covering sensitive matters regarding police officers, are covered by a legitimate expectation of privacy.
She says the court opinion might mean commissioners just ask themselves more questions before moving into a closed session.
“It makes our jobs a little more complex, but it’s the law. It’s what we have to do,” Sheehan said. “So it’s what we’re going to do.”
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Blaze Lovell is a reporter for Civil Beat and a graduate of the University of Nevada, Las Vegas. He was born and raised on Oahu. You can reach him at firstname.lastname@example.org or follow him on Twitter at @blaze_lovell