Office of Information Practices

Opinion Ltr. No. F25-04
March 21, 2025
Written Testimony Submitted for Canceled Meeting

Requester asked whether the Maui County Planning Commission (Commission) violated the Sunshine Law by failing to consider testimony submitted for a canceled meeting when the same agenda item was next heard at a later meeting.  Requester had submitted testimony for a meeting scheduled for February 7, 2023 (February 7 Meeting).  The Commission’s board packet for the February 7 Meeting did not include the testimony from Requester and others whose testimony came in too late to be included in the board packet, but the February 7 Meeting was ultimately canceled.  The proposed rule amendments Requester and others testified on were finally considered at a meeting held March 28, 2023 (March 28 Meeting).  The Commission had intended to treat all testimony from the canceled February 7 Meeting as testimony for the March 28 Meeting, but it again failed to include Requester’s testimony in the board packet for the March 28 Meeting or otherwise distribute it to its members.

OIP concluded that the Commission had not violated the Sunshine Law’s testimony requirement with respect to the canceled February 7 Meeting because the Sunshine Law does not require a board to distribute written testimony for a canceled meeting or a canceled agenda item.  A board’s failure to distribute written testimony rises to the level of a Sunshine Law violation when the board considers the agenda item the testimony was submitted for without having first made the testimony available to the board’s members.  HRS § 92-3 (Supp. 2024); OIP Op. Ltr. No. 03-06.  A board thus cannot violate the Sunshine Law through its failure to distribute written testimony for an agenda item that it did not consider, either because the entire meeting was canceled or because that particular agenda item was canceled.

However, OIP concluded that even though Requester’s testimony was submitted for a canceled meeting, in these circumstances the Commission should have reasonably understood it to be intended for consideration as testimony for the March 28 Meeting at which the Commission held its public hearing on proposed rule amendments that was originally scheduled for the canceled meeting date.  The Commission’s failure to distribute the testimony before the rescheduled meeting, although unintentional, violated the Sunshine Law’s testimony requirement.  HRS § 92-3.  Nonetheless, the Commission’s subsequent action to schedule yet another public hearing on the same proposed rule amendments, for which it would distribute Requester’s testimony and other testimony submitted previously, mitigated the public harm from that violation.

full text