Office of Information Practices

S Memo 14-5
September 23, 2013
Executive Session

Requesters asked for an investigation into whether the University of Hawaii’s (UH) Board of Regents (Board) violated the Sunshine Law by holding an executive session at its meeting on May 24, 2013, to discuss the search for a new UH President.

OIP found that the Board properly discussed its executive session agenda item regarding the UH President in a closed meeting in accordance with section 92-5(a)(2) and (5), HRS.

In OIP’s opinion, when the Board discussed “the names of three prospective potential candidates,” it fulfilled the criteria of section 92-5(a)(2), HRS, because the Board’s discussion of this topic: (1) related to the “hire” of an “officer,” i.e., the UH President, and (2) named specific individuals as potential candidates, thus making it a “consideration of matters affecting privacy,” i.e., the named individuals’ privacy.

The other topics discussed in executive session did not concern individuals who were named for possible hiring consideration, so these other topics do not qualify under section 92-5(a)(2), HRS, for discussion in executive session. Instead, these other topics, which consisted of the Board’s briefing on the Sunshine Law and drafting of a public statement, were matters that the Board discussed with its legal counsel, who was also serving as the Board’s Acting Secretary at the time.  In OIP’s opinion, the Board’s discussion with its legal counsel on these topics is covered by section 92-5(a)(4), HRS, which allows discussion in executive session for the purpose of “consult[ing] with the board’s attorney on questions and issues pertaining to the board’s powers, duties, privileges, immunities, and liabilities.”

Although OIP found that the Board was authorized to consult with its legal counsel in executive session under section 92-5(a)(4), HRS, the minutes indicate that the Board had only announced that it was going into executive session “pursuant to HRS §92-5(a)(2),” and did not specify that it would also be consulting with legal counsel as well.  The Sunshine Law requires that the Board announce the specific purposes for its discussion in executive session. HRS § 92-4 (2012) (requiring that “[a] meeting closed to the public shall be limited to matters exempted by section 92-5” and that “[t]he reason for holding such a meeting shall be publicly announced”).  OIP advised that, in the future, the Board should announce all of its reasons for meeting in executive session, and cite the authorizing Sunshine Law provisions, in order to fully comply with section 92-4, HRS.