F20-01Posted on Dec 20, 2019 in Formal Opinions
Opinion Ltr. No. F20-01
December 20, 2019
Transcript and Audio Recording
of Executive Meeting
Requester requested a transcript and audio record of a Maui County Council (Council) executive session discussing a resolution to appoint staff to the Maui Office of Council Services (OCS), which OCS had originally denied in its entirety. After Requester’s appeal to OIP, OCS disclosed the majority of the transcript, redacting primarily portions of the Council’s (1) discussions about the possible hire of Requester and other employees, including their past performance, and (2) consultations with its attorney regarding OCS management issues. See HRS §§ 92-9(b), 92F-13(4), and 92F-22(5) (2012) (allowing an agency to withhold records protected by another law in response to either a general government record or a personal record request; and allowing a board to withhold executive session minutes to the extent disclosure would frustrate the purpose of the executive session); Civil Beat Law Center for the Public Interest v. City & County of Honolulu, 144 Haw. 466, 445 P.3d 47 (Haw. 2019) (discussing the personnel-privacy and attorney consultation executive session purposes).
Part I of chapter 92, HRS (the Sunshine Law), allows a board to hold an executive session closed to the public for a limited list of purposes. HRS §§ 92-4, -5 (2012). The minutes of such an executive session may be withheld so long as necessary to prevent frustration of the executive session, but no longer. HRS § 92-(9)(b); see also HRS §§ 92F-13(4), -22(5) (both allowing an agency to withhold information protected by statute in response to UIPA requests). OIP found that most of the discussion in the redacted portions of the transcript fell within one of two permitted executive session purposes, one allowing a closed meeting to consider the “hire, evaluation, dismissal, or discipline” of a government employee where matters affecting individual privacy are concerned (personnel-privacy purpose) and the other allowing a closed meeting for a board to consult with its attorney regarding “the board’s powers, duties, privileges, immunities, and liabilities” (attorney-consultation purpose). HRS § 92-5(a)(2) and (4). However, a small portion of the redacted discussion would not frustrate the purpose(s) of the executive session if disclosed, and OIP therefore concluded that OCS must therefore disclose to Requester certain portions concerning Requester’s employment that did not qualify for the personnel-privacy purpose, including the name and approximate salary of another employee identified in the discussion. OCS must also disclose a redacted version of the requested audio recording, redacting the same portion of the discussion as for the written transcript.