The state attorney general can no longer keep its 2016 investigation into allegations of lying, incompetence and workplace bullying by the State Auditor’s office a secret.

The Hawaii Supreme Court ruled Tuesday that the public had a compelling right to access what the court describes as an “explosive” report detailing accusations of wrongdoing against then acting State Auditor Jan Yamane and her top assistants.

“The report is damning: it provides strong evidence of unethical and unprofessional conduct in the Office of the Auditor,” Justice Todd Eddins wrote for the majority.

The majority opinion was the view of Eddins, Justice Michael Wilson and Circuit Judge Paul Wong, who sat in for Justice Paula Nakayama after she recused herself.

Chief Justice Mark Recktenwald and Justice Sabrina McKenna issued a separate ruling that concurred in part and dissented in part, basically agreeing that the report should be made public but disagreeing on what items should be redacted.

Hawaii State Supreme Court Building. Aliiolani Hale.
The Hawaii Supreme Court ruled the AG must release an “explosive” 2016 report into the conduct of the State Auditor’s Office. Cory Lum/Civil Beat/2021

The report itself was not made public Tuesday. The high court gave the Attorney General’s Office 60 days to make redactions consistent with the court’s ruling and 90 days to release it to Civil Beat.

But the court did summarize the investigation’s findings of “unethical and unprofessional conduct” by Yamane, deputy auditor Rachel Hibbard and General Counsel and Human Resources Manager Kathleen Racuya-Markrich.

Specifically, according to the Supreme Court ruling:

“The Report contains information about: (1) the Office of the Auditor’s exaggeration and sensationalizing of its findings; (2) the Office of the Auditor’s fabrication of findings about auditee agencies; (3) the inexperience and incompetence of the Office of the Auditor’s leadership; (4) the Office of the Auditor’s alleged failure to complete an audit it was required, by law, to complete; (5) the Office of the Auditor’s efforts to artificially inflate the number of audit reports it produced; and (6) the toxic workplace at the Office of the Auditor.”

State lawmakers abruptly voted in 2016 to replace Yamane following the conclusion of the AG’s year-long investigation conducted at the Legislature’s request. A few months later, Yamane began her current gig as  executive director of the Honolulu Ethics Commission.

The Legislature then chose Les Kondo to be the State Auditor. He’s recently been under fire by House leaders who have complained he is slow to finish cases and failed to review some concerns they have raised.

Civil Beat requested that the 555-page investigative report on Yamane’s reign as auditor be released under the state’s Uniform Information Practices Act, Hawaii’s public records law. The AG’s office refused, citing right to privacy and attorney-client privilege, among other concerns.

Civil Beat filed suit.

Wednesday marks six years to the day since Civil Beat made its initial information request. Since then, the Circuit Court ruled in favor of the AG but the high court sent it back after Civil Beat appealed. The lower court again ruled in favor of the state, finding that the report should not be made public because the information it contained was private and release of the report would frustrate a legitimate government function.

City Ethics Commission Executive Director and Legal Counsel Jan Yamane. 9 aug 2016
Jan Yamane was replaced as state auditor in 2016 and went to work as executive director of the Honolulu Ethics Commission, a role she still holds today. Cory Lum/Civil Beat

But the Supreme Court ruling made clear that the public interest in the auditor’s office and how it carries out its work outweighs any privacy interest that the top public officials may have. The ruling does allow the state to redact some things from the report — for instance, some information from lower-level employee personnel files, policy infractions by those employees, “sentences concerning the physical health, disability-status, mental illness, or body size of an Office of the Auditor employee.”

“The court makes clear that, just because something’s redacted and even if there were a lot of redactions, you still have to produce it,” said Brian Black, executive director of the Civil Beat Law Center for the Public Interest, who represented the news organization. “If it provides some information, then you still have to disclose.”

The Supreme Court’s analysis of the AG’s assertion of privacy concerns took up the bulk of the ruling.

The court outlined a two-part test in determining whether a public record should be withheld under privacy concerns. Part one asks whether privacy concerns of the investigation’s subjects – auditor Yamane, deputy auditor Hibbard and general counsel Racuya-Markrick – meant the entire report should be kept hidden.

On this, the document failed, as the main subjects were not low-level employees but “top brass,” meaning the public had significant interest into allegations of the officials’ wrongdoing, the court ruled.

“This highly-visible and constitutionally-established office is a first line of defense against government inefficiency – or worse,” Eddins wrote. “The critical role the Office of the Auditor plays in promoting trust and confidence in government enhances the public’s interest in the Report.”

Black said he applauded the Supreme Court’s clear guidance on when a public record can be withheld for privacy concerns, and said the precedent this ruling creates will have “broad impact” on future records requests.

“The decision today regarding how agencies should be analyzing privacy will be extremely helpful for requesters and agencies who are dealing with these issues in the future,” Black said.

The Civil Beat Law Center for the Public Interest is an independent organization created with funding from Pierre Omidyar, who is also CEO and publisher of Civil Beat. Civil Beat Editor Patti Epler sits on its board of directors.

Read the Supreme Court majority opinion and concurring opinion:

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