Office of Information Practices

U Memo 23-07
June 30, 2023
Executive Session Minutes

This is an appeal from a denial by the State Public Charter School Commission (PCSC) for a copy of its minutes of an executive session, on the basis that the entire executive session was devoted to its discussion with its counsel on matters pertaining to PCSC’s powers, duties, privileges, immunities, and liabilities.

Upon review of the minutes for the public portion of the meeting and in camera review of the minutes for the executive session, OIP found that PCSC properly convened its executive session and that the executive session consisted of a discussion between PCSC and its attorney on questions and issues pertaining to PCSC’s powers, duties, privileges, immunities, and liabilities regarding a properly noticed agenda item.  OIP therefore concluded that PSCS was properly in executive session for the discussions with its attorney under HRS section 92-5(a).

OIP further found that disclosure of the discussion between PCSC and its attorney during the executive session would frustrate the purpose of the executive session, but that some portions of the executive session minutes were nonsubstantive and may be disclosed.  OIP concluded that PCSC could withhold records of the discussion between PCSC and its attorney, but should disclose the nonsubstantive portion of the executive session minutes.

OIP also found, sua sponte, that the executive session minutes did not convey a true reflection of the matters discussed and the views of the participants and thus found that the minutes were not sufficiently detailed to meet the Sunshine Law’s requirements under HRS Sec. 92-9.  OIP concluded that PCSC must create a new set of minutes for the executive session that includes omitted information, to the best of PCSC’s ability.  Although a new request for the revised minutes could be made, OIP noted that PSCS would not automatically be required to provide a redacted copy of the rewritten minutes as the greater detail in the minutes is likely to more clearly justify PSCS’s withholding them based on its attorney-client discussion.