Posted on Jan 21, 2005 in Formal Opinions

Opinion Letter No. 05-04
January 21, 2005
Executive Meetings to Interview Mayor’s Appointees

A member of the Kauai County Council (the “Council”) asked OIP for an advisory opinion regarding whether the Council may convene an executive meeting to interview individuals who are appointed by the Mayor to county boards and commissions.

OIP advised that the Council cannot meet in executive session in order to interview the nominees because the interviews do not qualify for any of the exemptions to the Sunshine Law’s open meeting requirements, as set forth in section 92-5, HRS.

OIP rejected the argument that the Council’s interviews of nominees triggered the Sunshine Law exemption that allows a board to meet in executive session in order to “deliberate or make a decision upon a matter that requires the consideration of information that must be kept confidential pursuant to a state or federal law” based upon the fact that the Council might have been able to protect certain information from disclosure for privacy reasons under the UIPA. The UIPA is not a state law under which information “must be kept confidential” because the UIPA does not mandate confidentiality of government records, but rather permits withholding under certain exceptions to its general rule of public disclosure.

Also, although the UIPA recognizes that individuals have a significant privacy interest in “applications” and “nominations” for “appointment to a governmental position,” OIP has previously opined that this significant privacy interest is outweighed by the public interest in application information concerning successful applicants or nominees because such information “sheds light upon the composition, conduct, and potential conflicts of interest of government board and commission members.” Haw. Rev. Stat. § 92F-14(b)(4). OIP Op. Ltr. No. 91-8.

Furthermore, although the Revised Charter of the County of Kauai (“Charter”) requires open meetings “[w]ith the exception of deliberations relating to confirmation of appointees[,]” appearing to indicate that the Council’s hearings to confirm appointees should be closed to the public, the Charter is not a “state law” for purposes of invoking the exemption to the open meeting requirements provided at section 92-5(a)(8), HRS.

Finally, because an individual nominated to a board or commission will not be serving for pay or compensation, a nominee cannot be considered a “hire” for purposes of invoking the exemption in section 92-5(a)(2).

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