S Memo 16-2

Posted on Nov 4, 2015 in Informal Opinions - Sunshine Law

S Memo 16-2
November 4, 2015
Executive Session for Attorney-Client
Privileged Matters

The Maui County Council’s Policy and Intergovernmental Affairs Committee (PIA) held a public meeting on August 14, 2013.  The agenda item at issue (Item 41) pertained to a PIA investigation of several County executive agencies regarding the “potential misuse of County funds appropriated for the rehabilitation of the Old Wailuku Post Office.”

According to the meeting minutes, for Item 41, 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.

Requester stated that, after the executive meeting, the PIA voted (1) to write a letter to ask the county auditor to intervene in the matter and (2) to exempt the Department of the Corporation Counsel (Corporation Counsel) from the investigation.  Requester asked OIP whether section 92-5(a)(4), HRS, covered the executive meeting that took place, or whether some of the PIA’s deliberations of Item 41 should have been done in public.

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 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, OIP sought an in camera review of the executive session minutes.  Initially, the Corporation Counsel 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, the Corporation Counsel 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 Corporation Counsel 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.

OIP reviewed the second set of redacted executive minutes provided for in camera review and found it was 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.  These discussions appeared to be attorney-client privileged discussions between the PIA and its attorney.  Thus, OIP 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).