OIP Memo Opinion on Executive Session for Attorney-Client Privileged Matters

Posted on Nov 20, 2015 in Featured, What's New

The State Office of Information Practices (OIP) has posted on its website a summary of S Memo Op. 16-2, which concluded that the Maui County Council’s Policy and Intergovernmental Affairs Committee (PIA) properly entered into a closed executive session in order to discuss attorney-client privileged matters with its legal counsel.

The opinion arose from a public meeting held on August 14, 2013, regarding an agenda item pertaining to a PIA investigation of several County executive agencies.  According to the meeting minutes, the Chair stated during the public portion of the meeting that he would ask the PIA to enter an executive meeting to consult with Corporation Counsel on a couple of scenarios that the Chair felt were important for the PIA to consider regarding the strategy of how to move forward on the agenda item.

The Sunshine Law generally requires that every meeting of all boards shall be open to the public. HRS § 92-3 (2012).  Despite this general requirement of openness, the Sunshine Law does allow boards to hold executive meetings closed to the public under section 92-4, HRS, and executive meetings must be limited to one or more of the purposes listed in section 92-5, HRS.  One of those purposes, applicable in this case, allows a board to enter an executive meeting “[t]o consult with the board’s attorney on questions and issues pertaining to the board’s powers, duties, privileges, immunities, and liabilities[.]”  HRS § 92-5(a)(4) (2012).

In order to determine whether the PIA had properly entered into an executive session for this purpose, OIP sought an in camera review of the executive session minutes.  Initially, the Maui Corporation Counsel (MCC) provided over 14 pages of completely redacted minutes, from which no information about what happened at the executive session could be ascertained.  On behalf of Maui County, MCC then filed a lawsuit for injunctive relief challenging OIP’s authority to review attorney-client privileged documents in camera and seeking to prevent OIP from taking adverse action against Maui County in County of Maui v. State of Hawaii Office of Information Practices, Civil No. 13-1-1079 (2)( 2nd Cir. Ct.).  The parties stipulated to dismiss the lawsuit, however, after the MCC provided OIP with a second redacted copy of the executive session minutes for OIP’s in camera review, which withheld only the attorney’s statements and provided sufficient information to resolve the underlying case.

Based on its in camera review of the minimally redacted executive session minutes, OIP found it clear that the PIA’s attorney was in the executive meeting and that he was being asked legal questions to which he provided responses throughout the meeting.  As these discussions appeared to be attorney-client privileged discussions between the PIA and its attorney, OIP thus concluded that the PIA’s executive meeting was in compliance with sections 92-4 and 92-5(a)(4), HRS.  See County of Kauai v. Office of Information Practices, 120 Haw. 34, 44-45, 200 P.3d 403, 413-14 (2009).

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