S Memo 20-6

Posted on Jun 9, 2020 in Informal Opinions - Sunshine Law

S Memo 20-6
June 9, 2020
Unanticipated Executive Meeting and
Disclosure of Executive Meeting Minutes

OIP consolidated two appeals that arose out of the same meeting and were brought by the same individual (Requester), one alleging Sunshine Law violations, and the other asking for a decision on a denial of records under the UIPA.

First, Requester asked whether the Board of Land and Natural Resources (BLNR) violated the Sunshine Law during its public meeting on December 8, 2017 (Meeting).  He specifically asked whether BLNR inappropriately entered an executive session (Executive Session) because it was not noticed on the Meeting agenda (Agenda).  Requester also complained that the Agenda contained inappropriately vague boilerplate language regarding executive sessions; and asked that whether the underlying subject matter that BLNR went into the Executive Session for, i.e., deliberation and taking action on the request for a contested case, violated the Sunshine Law.

Second, Requester sought a decision as to whether the Department of Land and Natural Resources (DLNR) properly withheld access under the UIPA to a copy of the Executive Session minutes (Executive Minutes).

Meeting agendas must list executive sessions anticipated in advance, but the Sunshine Law allows boards to enter executive sessions not anticipated in advance when the Sunshine Law’s procedures in section 92-4, HRS, are followed.  During BLNR’s public discussion at the Meeting of Agenda item D-4 (Item D-4), sections 92‑4, 92-5(a)(4), and 92-7(a), HRS, allowed it to vote to enter the Executive Session to discuss with its attorney both Item D-4 and a request for a contested case made during the public discussion on Item D-4, even though the Executive Session was not listed on the Agenda, because the Executive Session had not been previously anticipated.  However, the minutes of the Meeting (Minutes), which OIP must treat as an accurate reflection of what happened at the Meeting, showed that BLNR failed to announce the purpose of the Executive Session prior to its vote, which was a violation of section 92‑4, HRS.

The generic language at the end of the seven-page Agenda indicating that BLNR might enter an executive session did not violate the notice provisions of the Sunshine Law because it was not an Agenda item, and BLNR did not rely upon it as such.  Rather, it was instructive in nature and served to inform the public of the possibility that BLNR could hold an unanticipated executive session to discuss an item that the Agenda indicated would be discussed in public session only.

The Executive Minutes contain attorney-client privileged communications.  DLNR was therefore authorized to withhold the Executive Minutes by section 92-9(b), HRS, which allows minutes of executive meetings to be withheld so long as their publication would defeat the lawful purpose of the executive meeting, but no longer, and section 92F-13(3), HRS, which allows agencies to withhold records to avoid the frustration of a legitimate government function.  Here the legitimate government function would be protecting attorney-client privileged communications.