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Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
26-JUN-2019
09:40 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
CIVIL BEAT LAW CENTER FOR THE PUBLIC INTEREST, INC.,
Plaintiff-Appellant,
vs.
CITY AND COUNTY OF HONOLULU and
HONOLULU POLICE COMMISSION,
Defendants-Appellees.
SCAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-XX-XXXXXXX; CIV. NO. 1CC17-1-000142)
JUNE 26, 2019
RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ.,
AND CIRCUIT JUDGE EDDINS, IN PLACE OF NAKAYAMA, J., RECUSED
I. INTRODUCTION
The issues in this case arise from three closed
meetings the Honolulu Police Commission held in January 2017
concerning then-Chief of Police Louis Kealoha, who had received
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notice that he was the target of a federal criminal
investigation. The Police Commission cited the need to protect
Kealoha’s privacy and to confer with its attorney when closing
the meetings to the public. At the end of the third meeting, the
Commission approved an agreement for Kealoha’s retirement.
Several days later, Plaintiff-Appellant Civil Beat Law
Center for the Public Interest, Inc. (Civil Beat) filed a
complaint against the Honolulu Police Commission and the City and
County of Honolulu (collectively, the Appellees) in the Circuit
Court of the First Circuit (circuit court). Civil Beat pled six
counts, seeking declaratory rulings interpreting Hawaii’s
Sunshine Law, and finding violations of the Sunshine Law. In
addition to declaratory relief, Civil Beat sought an order
requiring the Appellees to attend Sunshine Law training,
releasing the Commission’s executive meeting minutes for the
three closed meetings, and invalidating the Commission’s
retirement agreement with Kealoha. Civil Beat did not join
Kealoha as a party to the action.
The Appellees filed a motion to dismiss, which the
circuit court granted on all counts. Civil Beat appealed to the
Intermediate Court of Appeals (ICA), and we accepted transfer of
this case to resolve matters of first impression concerning the
meaning and scope of the Sunshine Law’s open meeting requirement,
personnel-privacy exception, and attorney-client exception, and
the extent to which closed meetings must conform with these
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exceptions.
We hold that the circuit court erred in dismissing
Civil Beat’s complaint. The Sunshine Law does not require that
meetings related to personnel matters be closed to the public;
rather, that decision is discretionary, provided that certain
statutory requirements are met. Nor does the Sunshine Law
subject board members to criminal penalties for holding an open
meeting. We resolve these and other questions of law in this
appeal, and remand Civil Beat’s claims regarding alleged
violations of the Sunshine Law, with instructions to order that
Kealoha be made a party, or, if he cannot be so joined, the court
shall determine whether in equity and good conscience the action
should proceed in any form among Civil Beat and the Appellees, or
whether it must be dismissed.
II. BACKGROUND
A. Factual Background
Because we are reviewing the circuit court’s order on a
motion to dismiss, our review is “strictly limited to the
allegations of the complaint, and we must deem those allegations
to be true.” In re Estate of Rogers, 103 Hawaii 275, 280-81, 81
P.3d 1190, 1195-96 (2003) (quoting Blair v. Ing, 95 Hawaii 247,
252, 21 P.3d 452, 457 (2001)).
1. The Target Letter
In December 2016, Kealoha received an FBI Target Letter
from the U.S. Attorney’s Office notifying him that he was the
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target of a federal grand jury investigation. In response to the
Target Letter, Kealoha voluntarily placed himself on temporary
restricted duty. The same day, the Chair of the Police
Commission acknowledged the Target Letter and confirmed that
Kealoha placed himself on leave. The Chair said that the
Commission would consider the issue at its next meeting on
January 4, 2017.
2. The Commission Discusses the “Status of the Chief of
Police” in Executive Session
The Commission’s January 4, 2017, meeting agenda
indicated that the “Status of the Chief of Police” would be
discussed in an executive session, closed to the public, pursuant
to HRS § 92-5(a)(2) and (4), respectively, for the Commission to
consider personnel actions “where consideration of matters
affecting privacy will be involved” and to consult with the
Commission’s attorneys. During the public portion of the
Commission’s January 4 meeting, the Chair stated that “because of
Hawaii Revised Statute on personnel matters, we have to discuss
[the Police Chief] in executive session.”
The Commission continued the January 4 meeting
regarding the “Status of the Chief of Police” to January 6, 2017,
and on that day met solely in executive session. After the
January 6 executive session, the Commission publicly announced
that it had come to “an agreement in principle on [the Chief of
Police’s] retirement.”
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3. The City Council is Denied a Briefing on the Retirement
Agreement
On January 12, 2017, the Honolulu City Council
requested a briefing from the Commission on the retirement
agreement. The next day, the Chair of the Commission declined
the Council’s request, stating that according to the Sunshine
Law, “only the individual [employee] concerned may request an
open meeting” when personnel matters involving the hire,
evaluation, dismissal, or discipline of that employee are
discussed. The Chair stated that “without the consent of Chief
Kealoha, the Commission cannot discuss this personnel matter in
open session.” The Chair indicated that the Commission members
may be subject to criminal penalties if personnel matters were
discussed in open session.1
4. The Commission Approves a Retirement Agreement with
Kealoha in Executive Session
The Commission’s agenda for its next meeting on
January 18, 2017 stated again that the “Status of the Chief of
Police” would be discussed in executive session pursuant to HRS
§ 92-5(a)(2) and (4) for the Commission to consider personnel
actions “where consideration of matters affecting privacy will be
involved” and to consult with the Commission’s attorneys. At the
January 18 meeting, the Commission voted in executive session to
approve a retirement agreement with Kealoha.
1
The complaint did not provide a direct quotation of this
statement.
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B. Circuit Court Proceedings
1. Civil Beat’s Complaint
On January 26, 2017, Civil Beat filed a complaint in
circuit court against the Appellees.2 Civil Beat sought
declaratory and injunctive relief, including voiding final action
taken by the Commission. Civil Beat asserted six claims:
Count 1: Sunshine Law does not require closed
meetings;
Count 2: Board members cannot be criminally
prosecuted for holding an open Sunshine
Law meeting;
Count 3: Not all personnel actions may be
discussed in closed session;
Count 4: Personnel evaluations of a police chief
must be discussed in open session;
Count 5: The City and the Commission violated the
Sunshine Law on January 4 and 6, 2017.
Count 6: The City and the Commission violated the
Sunshine Law on January 18, 2017.
a. Counts 1 and 2
In Counts 1 and 2, Civil Beat sought declaratory relief
interpreting the Sunshine Law’s open meeting requirement, HRS
§ 92-3, and criminal penalties provision, HRS § 92-13.
In Count 1, Civil Beat alleged that the Commission
misinterpreted the Sunshine Law’s open meeting requirement and
that Commission members incorrectly believed that they were
required to enter into an executive session to discuss the Chief
2
The Honorable Virginia L. Crandall presided.
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of Police. Civil Beat asserted that when voting to enter
executive session, members of the Commission “did not believe
that they had the option to vote for an open session - stating
that ‘without the consent of Chief Kealoha, the Commission cannot
discuss this personnel matter in open session.’” Civil Beat
sought an order “declaring that the Sunshine Law does not require
boards to enter into executive session[.]”
In Count 2, Civil Beat asserted that the Commission
misinterpreted the Sunshine Law’s criminal penalties provision
because Commission members “believed that they were subject to
criminal prosecution if they discussed the matter in open
session.” Civil Beat sought “an order declaring that the
Sunshine Law does not subject Sunshine board members to criminal
prosecution under HRS § 92-13 for holding an open meeting[.]”
b. Counts 3 and 4
In Counts 3 and 4, Civil Beat sought declaratory relief
interpreting the Sunshine Law’s personnel-privacy exception, HRS
§ 92-5(a)(2), and applying this interpretation to require the
“Status of the Chief of Police” to be discussed in open meetings
in all circumstances as a matter of law.
In Count 3, Civil Beat alleged that Commission members
misinterpreted the personnel-privacy exception “to permit an
executive session “for any discussion that involved ‘the hire,
evaluation, dismissal, or discipline of an officer or employee or
of charges brought against the officer or employee’ . . .
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regardless whether ‘consideration of matters affecting privacy
will be involved.’” Civil Beat contended that HRS § 92-5(a)(2)
“requires an analysis of whether the personnel discussion
involves private matters and a balancing of the privacy interests
against the public interests in disclosure.”
In Count 4, Civil Beat applied this balancing test to
argue that, as a matter of law, the “Status of the Chief of
Police” cannot be discussed in executive session due to the
public’s compelling interest in monitoring the person serving as
Chief of Police. Civil Beat argued that “[p]rivacy is not an
absolute when it concerns conduct of government officials” and
noted that the Chief of Police, “unlike most government
employees,” performs “a critical function to our community that
impacts thousands of people daily.” Civil Beat thus argued that
the public has a compelling interest “in monitoring both the
Chief of Police and the Commission,” and that this “outweighs any
privacy interests the Chief of Police may have” in discussions
regarding the “Status” of this position. “To prevent future
violations of the Sunshine Law,” Civil Beat requested “an order
declaring that discussion of the ‘Status of the Chief of Police’
is not a matter ‘where consideration of matters affecting privacy
will be involved’ and thus cannot be held in executive session.”
c. Counts 5 and 6
In Counts 5 and 6, Civil Beat alleged that the
Commission’s discussions concerning the “Status of the Chief of
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Police” in the January 4, 6, and 18 executive sessions violated
section 92-5(b) of the Sunshine Law because portions of these
discussions were not “directly related” to any permissible
exception.
In Count 5, Civil Beat first raised the issue of
whether HRS § 92-5(a)(2), the personnel-privacy exception, was
permissibly invoked in the specific circumstances here. Unlike
in Count 4, Civil Beat’s allegations in Count 5 addressed
Kealoha’s privacy interests, the Target Letter, and the nature of
the Commission’s deliberations. Civil Beat claimed that the
Commission did not discuss “any highly sensitive information”
concerning Kealoha in the executive meetings. Rather, “the only
development presented to the Commission was the FBI Target Letter
that was already public knowledge.” Civil Beat argued that
“[t]he Commission’s deliberations about what it planned to do
about the FBI Target Letter, the evaluative criteria it
considered, the options it weighed, and how it approached the
situation are not private merely because it may affect
[Kealoha’s] reputation or may be embarrassing.” Moreover,
according to Civil Beat, any privacy interests were outweighed by
the public interest in Kealoha’s evaluation.
As such, Civil Beat claimed, “[o]n information and
belief,” that “portions of the January 4 executive session,
continued on January 6, concerning the ‘Status of the Chief of
Police’ were not ‘directly related’ to ‘consideration of matters
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affecting privacy.’” Additionally, Civil Beat alleged that
portions of the same January 4 executive session, continued on
January 6, “were not ‘directly related’ to questions for the
Commission’s attorney ‘pertaining to the board’s powers, duties,
privileges, immunities, and liabilities.’” Civil Beat thus
argued that the closed meetings “exceeded the scope of any
permissible [exception].” Civil Beat sought an order declaring
that the Commission violated the Sunshine Law, and “requiring
disclosure of any audio or other recordings and any meeting
minutes or similar record” of the first two executive meetings at
issue.
Count 6 was substantially similar to Count 5, though it
focused on matters from the Commission’s January 18, 2017,
executive meeting, including “the basis for [Kealoha’s]
retirement, how the Commission evaluated the terms of that
retirement, and the reasons that the Commission chose to spend
public monies on that retirement[.]” Like in Count 5, Civil Beat
alleged that portions of the January 18 executive meeting were
not “directly related” to “consideration of matters affecting
privacy” or to questions for the Commission’s attorney
“pertaining to the board’s powers, duties, privileges,
immunities, and liabilities.” As such, Civil Beat argued that
the Commission “exceeded the scope of any permissible
[exception].”
In addition to seeking declaratory relief and
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disclosure of the January 18 executive meeting minutes, Civil
Beat sought an order “voiding [the Commission’s] approval of the
retirement agreement,” pursuant to HRS § 92-11.
2. Dismissal of the Complaint
On February 16, 2017, the Appellees filed a motion to
dismiss the complaint pursuant to Hawaii Rules of Civil
Procedure (HRCP) Rule 12(b)(6) (2000). The Appellees argued that
there was no controversy to resolve in Counts 1 and 2, and that
Counts 3 to 6 relied on incorrect interpretations of the Sunshine
Law. In opposition, Civil Beat argued that the Appellees
misconstrued the law and that they “move to dismiss by simply
ignoring the facts as alleged.” Regarding Counts 5 and 6 in
particular, Civil Beat argued that it would be inappropriate to
dismiss the matter due to the presence of disputed issues of fact
concerning the scope of the Commission’s discussions.
After a hearing on the motion, the circuit court
entered a written order dismissing the complaint. The order
provided as follows:
1. As to Counts [1] and [2], there is no
dispute that Defendant Honolulu Police Commission (the
“Commission”) followed the required procedures and
properly met in executive session pursuant to Hawaii
Revised Statutes (“HRS”) §§ 92-4, 92-5(a)(2), and 92-
5(a)(4) to protect privacy interests of the Honolulu
Chief of Police and to preserve the attorney-client
privilege between the Commission and its counsel. The
Commission had the authority to and did meet in
executive session to preserve its attorney-client
privilege, even if the Commission was not required to
meet in executive session to discuss the status of the
Honolulu Chief of Police. Therefore, Counts [1] and
[2] are dismissed as moot.
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2. As to Counts [3] and [4], HRS Chapter 92
does not require a “balancing of private interest
against the public interest in disclosure” in deciding
whether a board may properly meet in executive
session. The balancing test set forth in HRS Chapter
92F applies to the “disclosure of a government record”
and not whether the Commission properly decided to
meet in executive session. The Commission properly
entered into executive sessions pursuant to HRS §§ 92-
4, 92-5(a)(2), and 92-5(a)(4). As such, Counts [3]
and [4] are dismissed for failure to state a claim
upon which relief can be granted.
3. Counts [5] and [6] set forth conclusory,
rather than factual, allegations and are therefore
dismissed without prejudice for failure to state a
claim upon which relief can be granted.
On November 30, 2017, the circuit court entered final
judgment “in favor of Defendants City and County of Honolulu and
Honolulu Police Commission on all claims for relief” in Civil
Beat’s complaint.
C. Appellate Proceedings
Civil Beat timely appealed the circuit court’s judgment
to the ICA, and we later accepted transfer of this case.
Civil Beat raises three issues on appeal:
[1]. Whether the public is entitled to declaratory
relief to prevent violations of the Sunshine Law
by correcting a government board’s erroneous
understanding that its vote to enter executive
session was meaningless because the Sunshine Law
required a closed meeting and permitted criminal
prosecution of the board members for holding an
open meeting (Counts [1] and [2]).
2. Whether the circuit court erred in holding that
the Sunshine Law personnel privacy exception
broadly applies to all discussion of personnel
matters concerning the chief of police
regardless whether “consideration of matters
affecting privacy will be involved” (Counts [3]
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and [4]).
[3]. Whether a complainant alleging that a government
board exceeded the scope of permissible
exceptions to the Sunshine Law during a closed
meeting (Counts [5] and [6]) may be dismissed as
a matter of law for failure to state a cause of
action under HRS § 92-12.
III. STANDARDS OF REVIEW
A. Motion To Dismiss
A circuit court order granting a motion to dismiss is
reviewed de novo. Hungate v. Law Office of David B. Rosen, 139
Hawaii 394, 401, 391 P.3d 1, 8 (2017). “A complaint should not
be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his or her claim that would entitle him or her to
relief.” In re Estate of Rogers, 103 Hawaii 275, 280, 81 P.3d
1190, 1195 (2003) (quoting Blair v. Ing, 95 Hawaii 247, 252, 21
P.3d 452, 457 (2001)). Our review is “strictly limited to the
allegations of the complaint,” which we view in the light most
favorable to the plaintiff and deem to be true. Id. at 280-81,
81 P.3d at 1135-36 (quoting Blair, 95 Hawaii at 252, 21 P.3d at
457). However, “the court is not required to accept conclusory
allegations on the legal effect of the events alleged.” Hungate,
139 Hawaii at 401, 391 P.3d at 8.
B. Statutory Interpretation
“Questions of statutory interpretation are questions of
law to be reviewed de novo under the right/wrong standard.”
Nakamoto v. Kawauchi, 142 Hawaii 259, 268, 418 P.3d 600, 609
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(2018).
C. Indispensable Parties
“[W]here the trial court has made a determination as to
a party’s indispensability, appellate courts must review the
trial court’s decision for an abuse of discretion.” Marvin v.
Pflueger, 127 Hawaii 490, 503, 280 P.3d 88, 101 (2012)
(citations omitted). However, “where the appellate court raises
the issue [of indispensable parties] itself for the first time on
appeal, it follows that the appellate court must perform a de
novo Rule 19 analysis, there being no analysis from the trial
court to review.” Id.
IV. DISCUSSION
We resolve Counts 1 to 4 in the present appeal based
purely on principles of statutory interpretation. The circuit
court erred in dismissing Counts 1 and 2 as moot, and we resolve
these counts by declaring that the Sunshine Law does not require
closed meetings, and that the Sunshine Law does not subject board
members to criminal prosecution under HRS § 92-13 for holding an
open meeting. We resolve Counts 3 and 4 by declaring that the
Sunshine Law’s personnel-privacy exception does not include a
balancing test, but requires the person at issue to have a
legitimate privacy interest in the matters discussed.
We vacate and remand Counts 5 and 6. The circuit court
improperly applied a heightened pleading standard to dismiss
these counts, which sufficiently alleged violations of the
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Sunshine Law. We remand Counts 5 and 6 with instructions to
order that Kealoha be made a party, or, if he cannot be so
joined, the circuit court shall determine whether in equity and
good conscience the action should proceed in any form among Civil
Beat and the Appellees, or whether it must be dismissed.
A. Counts 1 and 2
The circuit court erred in dismissing Counts 1 and 2 as
moot. In both counts, Civil Beat established a live controversy
regarding interpretation of the Sunshine Law’s open meetings
requirement, see HRS §§ 92-3 to -5, and its criminal penalties
provision, see HRS § 92-13.
In Count 1, Civil Beat alleged that Commission members
incorrectly believed that the Sunshine Law required personnel
matters to be discussed in executive session, and that the
Commission could discuss such matters in an open meeting only
with the consent of the person being discussed. In Count 2,
Civil Beat alleged that Commission members incorrectly believed
that they may be criminally prosecuted under the Sunshine Law for
holding an open meeting without Kealoha’s consent. While Civil
Beat acknowledged that the Sunshine Law provides criminal
penalties for “[a]ny person who willfully violates any [of its]
provisions,” HRS § 92-13, Civil Beat argued that the Commission’s
belief was erroneous because holding an open meeting does not
violate the Sunshine Law. For both counts, Civil Beat sought
declaratory relief “[t]o prevent future violations” by correcting
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the Commission’s misunderstanding of the law.
In their motion to dismiss, consistent with their
appellate briefs, the Appellees claimed that no controversy
existed by avoiding and recharacterizing Civil Beat’s arguments.
Rather than addressing whether the Sunshine Law requires closed
meetings, the Appellees argued that the “Commission was
authorized to conduct a meeting closed to the public under HRS
§ 92-5(a)(2) and (4) and followed the proper procedures to hold
the executive meeting under HRS § 92-4.” They argued that
because the Commission satisfied statutory requirements,
addressing “whether the Commission members had incorrect
conceptions of the law” would be a needless academic exercise.
With regard to Count 2, the Appellees argued that there
was “no dispute and no relief” because they “agree” with Civil
Beat that Commission members were not subject to criminal
penalties. They explained that they “agree that the members of
the Police Commission were not subject to criminal prosecution
because they followed the requirements of HRS § 92-4 and HRS
§ 92-5(a)(2) and (4) when convening the executive session,” and
because no one alleged a willful violation of the Sunshine Law.
This did not address Civil Beat’s argument in Count 2 that the
Sunshine Law does not provide criminal penalties for holding an
open meeting.
Furthermore, the Appellees argued that had any
Commission members believed that they “may be subject to criminal
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prosecution for violating the Sunshine Law by holding the subject
discussion in an open meeting,” such a belief aligned with
guidance from the Office of Information Practices (OIP),3 “that
only the subject employee may request that a meeting under HRS
§ 92-5(a)(2) be open to the public[.]” (Citing OIP S. Memo 09-
13, at 4).4 The Appellees appeared to contend that because “only
the subject employee may request that a meeting be open to the
public,” a meeting must be closed under section 92-5(a)(2) unless
such a request is made. Under this theory, holding an open
meeting without the employee’s permission would appear to violate
the Sunshine Law.
The Appellees did not assert that the complaint
misrepresented the Commission’s interpretation of the Sunshine
Law, and they did not otherwise suggest that the Commission’s
interpretation of the Sunshine Law had changed since the events
at issue took place. Moreover, in dismissing Counts 1 and 2 on
3
The OIP is the agency charged with administering the Sunshine Law.
HRS § 92-1.5 (2012). “Opinions and rulings of the office of information
practices shall be admissible in an action brought under this part and shall
be considered as precedent unless found to be palpably erroneous.” HRS § 92-
12(d) (2012).
4
The Appellees cited the following excerpt from the OIP’s informal
opinion:
Because OIP believes that an evaluation includes the possibility
of termination, the agenda provided sufficient notice from which
Dr. Shon could have exercised his right to require the BOE to
consider his evaluation in an open meeting. Haw. Rev. Stat. §92-
5(a)(2)(“if the individual concerned requests an open meeting, an
open meeting shall be held”). OIP does not interpret the Sunshine
Law to require personal notice to the employee in addition to the
public notice.
OIP S. Memo 09-13, at 4.
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mootness grounds, the circuit court appeared to conclude that the
Commission’s interpretation of the Sunshine Law was not relevant,
and that clarification of the Sunshine Law was therefore
unnecessary.
“A case is moot if it has lost its character as a
present, live controversy of the kind that must exist if courts
are to avoid advisory opinions on abstract propositions of law.”
Kahoohanohano v. State, 114 Hawaii 302, 332, 162 P.3d 696, 726
(2007) (emphasis omitted) (quoting Kemp v. State of Hawaii Child
Support Enforcement Agency, 111 Hawaii 367, 385, 141 P.3d 1014,
1032 (2006)). “[A] case is not moot . . . so long as the
plaintiff continues to suffer some harm that a favorable court
decision would resolve.” Hac v. Univ. of Hawaii, 102 Hawaii 92,
100, 73 P.3d 46, 54 (2003) (citation omitted). If the “requested
remedies can be effectuated” for the plaintiff, the issues
presented are still “live” for judicial resolution. Id. at 99,
73 P.3d at 53.
Civil Beat argued that declaratory relief clarifying
the proper statutory construction of the Sunshine Law was
necessary to prevent future harm to the public interest.
However, the circuit court held that regardless of what
Commission members believed about the Sunshine Law, the
Commission properly convened the executive meetings under the
attorney-client exception, and thus no harm to the public
interest occurred. As such, the circuit court determined that no
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relief was warranted. This was error, as it overlooked the
parties’ genuine dispute and did not acknowledge that declaratory
relief would prevent future harm to the public interest.
The purpose of the Sunshine Law is to “protect the
people’s right to know[.]” HRS § 92-1(1). Government boards
“are constrained at all times by the spirit and purpose of the
Sunshine Law, as stated in HRS § 92-1.” Kanahele v. Maui Cty.
Council, 130 Hawaii 228, 248, 307 P.3d 1174, 1194 (2013). Board
members are required to understand the requirements of the
Sunshine Law and act in good faith in accord with its spirit and
purpose.
The Sunshine Law declares the policy “that the
formation and conduct of public policy - the discussions,
deliberations, decisions, and action of governmental agencies -
shall be conducted as openly as possible.” HRS § 92-1. The
Sunshine Law implements this policy by establishing the
presumption that all government board meetings will be open to
the public. See HRS § 92-3 (“Every meeting of all boards shall
be open to the public and all persons shall be permitted to
attend any meeting unless otherwise provided in the constitution
or as closed pursuant to sections 92-4 and 92-5.”). Any
permitted exceptions to the open meeting requirement, see HRS
§ 92-5(a),5 must be narrowly construed, HRS § 92-1(3). If an
5
Boards may enter into an executive session only for the following
purposes:
(continued...)
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exception applies, a board “may hold a meeting closed to the
public,” HRS § 92-5(a) (emphasis added), but only if the board
follows statutory procedures in closing the meeting, including
“an affirmative vote, taken at an open meeting, of two-thirds of
the members present,” HRS § 92-4.6
5
(...continued)
(1) To consider and evaluate personal information
relating to individuals applying for
professional or vocational licenses cited in
section 26-9 or both;
(2) To consider the hire, evaluation, dismissal, or
discipline of an officer or employee or of
charges brought against the officer or employee,
where consideration of matters affecting privacy
will be involved; provided that if the
individual concerned requests an open meeting,
an open meeting shall be held;
(3) To deliberate concerning the authority of
persons designated by the board to conduct labor
negotiations or to negotiate the acquisition of
public property, or during the conduct of such
negotiations;
(4) To consult with the board’s attorney on
questions and issues pertaining to the board’s
powers, duties, privileges, immunities, and
liabilities;
(5) To investigate proceedings regarding criminal
misconduct;
(6) To consider sensitive matters related to public
safety or security;
(7) To consider matters relating to the solicitation
and acceptance of private donations; and
(8) To deliberate or make a decision upon a matter
that requires the consideration of information
that must be kept confidential pursuant to a
state or federal law, or a court order.
HRS § 92-5(a).
6
HRS § 92-4 provides in full:
A board may hold an executive meeting closed to the public upon an
affirmative vote, taken at an open meeting, of two-thirds of the
members present; provided the affirmative vote constitutes a
majority of the members to which the board is entitled. A meeting
(continued...)
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Because the decision to close a meeting is
discretionary, board members should thoughtfully weigh the
interests at stake before voting. See OIP Op. No. 03-07, at 7
(“Boards should keep in mind the Sunshine Law’s policy of
openness and should not enter executive meetings unless
necessary.”). If board members misconstrue the Sunshine Law and
take action based on these misconceptions, their conduct
undermines the intent of the Sunshine Law and impairs the
public’s “right to know.” HRS § 92-1. For this reason, the
Sunshine Law provides people access to the courts to ensure that
boards understand and comply with their Sunshine Law obligations.
See HRS § 92-12(c) (“Any person may commence a suit . . . for the
purpose of requiring compliance with or preventing violations of”
the Sunshine Law). Civil Beat sought declaratory relief in
Counts 1 and 2 in accord with this purpose, and was entitled to
have these counts resolved.
To resolve Count 1, we recognize that the Sunshine Law
does not require closed meetings when an exception applies, since
the applicable provisions explicitly recognize that the decision
to close a meeting is discretionary if certain conditions are
met. See HRS § 92-4 (“A board may hold an executive meeting
6
(...continued)
closed to the public shall be limited to matters exempted by
section 92-5. The reason for holding such a meeting shall be
publicly announced and the vote of each member on the question of
holding a meeting closed to the public shall be recorded, and
entered into the minutes of the meeting.
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closed to the public upon an affirmative vote, taken at an open
meeting, of two-thirds of the members present; provided the
affirmative vote constitutes a majority of the members to which
the board is entitled. A meeting closed to the public shall be
limited to matters exempted by section 92-5.”); HRS § 92-5 (“A
board may hold a meeting closed to the public pursuant to section
92-4 for one or more of the following purposes[.]” (Emphasis
added)). As such, a board will not violate the Sunshine Law by
holding an open meeting, so long as the board has complied with
all other Sunshine Law requirements, such as sufficient notice.
See HRS § 92-7.
We reject the Appellees’ contention that when section
92-5(a)(2) applies, an open meeting may be held only upon the
subject employee’s request. When section 92-5(a)(2) applies,
“[a] board may hold a meeting closed to the public pursuant to
section 92-4, . . . provided that if the individual concerned
requests an open meeting, an open meeting shall be held[.]” HRS
§ 92-5(a)(2) (emphasis added); see also OIP S. Memo 09-13, at 4
(recognizing that when section 92-5(a)(2) applies, an employee
has the “right to require the [board] to consider [the
employee’s] evaluation in an open meeting”). This rule does not
establish that an open meeting may be held only upon the subject
employee’s request. Rather, it establishes that an open meeting
must be held if such a request is made. As such, this rule
limits the applicability of an exception, and thus places no
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limitation on the open meetings requirement.
To resolve Count 2, we recognize that pursuant to
section 92-13, members of a government board may be prosecuted
for willful violations of the Sunshine Law, and upon conviction,
will be guilty of a misdemeanor and “may be summarily removed
from the board unless otherwise provided by law.” HRS § 92-13.
Because holding an open meeting does not violate the Sunshine
Law, even when an exception under HRS § 92-5 is applicable, board
members are not subject to criminal prosecution under section 92-
13 for holding an open meeting.
B. Counts 3 and 4
In dismissing Counts 3 and 4, the circuit court ruled
that “HRS Chapter 92 does not require a ‘balancing of private
interests against the public interest in disclosure’ in
determining whether a board may properly meet in executive
session.’” We affirm this ruling on grounds of statutory
interpretation.
In Count 3, Civil Beat sought a declaration defining
the scope of the personnel-privacy exception under section 92-
5(a)(2) as one that “requires an analysis of whether the
personnel discussion involves private matters and a balancing of
the privacy interests against the public interest in
disclosure[.]” As further discussed below, we hold that the
Sunshine Law’s personnel-privacy exception does not include a
public interest balancing test. As such, the circuit court
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properly ruled against Civil Beat on Count 3.
In Count 4, Civil Beat argued that given the overriding
“public interest in monitoring both the Chief of Police and the
Commission,” the circuit court should declare that “discussion of
the ‘Status of the Chief of Police’ is not a matter ‘where
consideration of matters affecting privacy will be involved’ and
thus cannot be held in executive session” as a matter of law.
However, because section 92-5(a)(2) does not include a balancing
test, the public interest in monitoring the Chief of Police would
not preclude the Commission from entering into executive session
to consider matters affecting the legitimate privacy interests of
the Chief of Police. Count 4, which relied on a balancing
theory, was thus properly dismissed.
Moreover, the applicability of section 92-5(a)(2) must
be determined on a case-by-case basis, as an analysis of privacy
requires a specific look at the person and the information at
issue. Although Count 4 referred to “the Chief of Police” and
“the Commission,” the allegations therein were not grounded on
the facts of this case concerning the Commission’s deliberations
about the Target Letter and Kealoha’s retirement taking place
January 4, 6, and 18, 2017. Without knowing the content of
future deliberations about future Chiefs of Police, courts cannot
rule as a matter of law that “matters affecting privacy” are not
involved. We therefore reject Count 4 on this basis as well.
Finally, while the circuit court properly held that the
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personnel-privacy exception does not include a balancing test,
the circuit court improperly concluded in one part that “[t]he
Commission properly entered into executive sessions pursuant to
HRS §§ 92-4, 92-5(a)(2), and 92-5(a)(4).” The personnel-privacy
exception requires the presence of legitimate privacy interests,
and an ipse dixit claim to privacy in personnel discussions does
not establish that the exception was properly invoked. See HRS
§ 92-1(3) (“The provisions providing for exceptions to the open
meeting requirements shall be strictly construed against closed
meetings.”); cf. Sapp v. Wong, 62 Haw. 34, 609 P.2d 137 (1980)
(recognizing that limitations restricting the operation of the
attorney-client privilege “must be assiduously heeded” and that
accordingly, “[a]n ipse dixit claim of privilege is
insufficient”). Even though a matter involves the personnel
status of an employee, it does not necessarily follow that a
legitimate privacy interest was impacted. The record lacks a
sufficient factual basis to support the circuit court’s
conclusion that the Commission properly invoked the personnel-
privacy exception. We therefore vacate this portion of the
order.7
7
Because Counts 3 and 4 concerned issues of statutory
interpretation and allegations regarding hypothetical circumstances, the
circuit court’s determination that the Commission properly entered into an
executive session pursuant to HRS § 92-5(a)(2) was not necessary to dispose of
Counts 3 and 4 in favor of the Appellees. Because this conclusion is more
relevant to Civil Beat's claims in Counts 5 and 6, we address this issue when
discussing Counts 5 and 6 in part IV.C.
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1. The Personnel-Privacy Exception
A board may enter into an executive session “[t]o
consider the hire, evaluation, dismissal, or discipline of an
officer or employee or of charges brought against the officer or
employee, where consideration of matters affecting privacy will
be involved[.]” HRS § 92-5(a)(2). Understanding that this
exception must be “strictly construed against closed meetings,”
HRS § 92-1(3), we construe the first and second clause in section
92-5(a)(2) as separate requirements. Accordingly, not all
personnel discussions are exempt from the open meeting
requirement.
To be within the scope of the exception, discussions
and deliberations about personnel must relate to “the hire,
evaluation, dismissal, or discipline” of personnel, or to
“charges brought against” personnel. HRS § 92-5(a)(2). Also,
such discussions and deliberations must “involve[]” the
“consideration of matters affecting privacy[.]” Id. Thus,
unless “matters affecting privacy will be involved” in a board’s
discussion, personnel matters should presumptively be discussed
in an open meeting. See HRS § 92-3.
The parties dispute the meaning of the “matters
affecting privacy” clause of section 92-5(a)(2). The Sunshine
Law does not describe the “matters” that may “affect[] privacy,”
or set forth a test, aside from this language, to determine the
meaning and scope of the personnel-privacy exception.
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a. HRS § 92-5(a)(2) does not include a balancing test
Civil Beat argues that the Sunshine Law’s personnel-
privacy exception should be construed as equivalent to the
privacy balancing test set forth in the Uniform Information
Practices Act (UIPA).8 We decline to adopt this interpretation.
The UIPA’s privacy exception applies when disclosure of a
government record would constitute a “clearly unwarranted
invasion of personal privacy.” HRS § 92F-13(1). In Peer News
LLC v. City & County of Honolulu, we explained that first,
privacy interests must be identified, and second, privacy
interests “must be balanced against the public interest in
disclosure to determine whether disclosure of the information
would constitute a ‘clearly unwarranted invasion of privacy.’”
138 Hawaii 53, 67-68, 376 P.3d 1, 15-16 (2016) (citing HRS §
92F-14). Neither the language nor structure of the Sunshine
Law’s personnel-privacy exception aligns with the UIPA in this
regard.
The plain language of the privacy clause in section 92-
5(a)(2) of the Sunshine Law differs considerably from that in
8
The UIPA establishes the public’s right to access government
records. See HRS § 92F-2. It provides “that the formation and conduct of
public policy - the discussions, deliberations, decisions, and action of
government agencies - shall be conducted as openly as possible.” Id. To this
end, the UIPA establishes the presumption that “[a]ll government records are
open to public inspection unless access is restricted or closed by law.” HRS
§ 92F-11(a).
The UIPA also recognizes that “[t]he policy of conducting
government business as openly as possible must be tempered by a recognition of
the right of the people to privacy, as embodied in section 6 and section 7 of
[A]rticle I of the [C]onstitution of the [S]tate of Hawaii.” HRS § 92F-2.
Thus, disclosure is not required if it “would constitute a clearly unwarranted
invasion of personal privacy[.]” HRS § 92F-13(1).
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sections 92F-13(1) and 14 of the UIPA. The personnel-privacy
exception plainly allows a closed meeting if “consideration of
matters affecting privacy will be involved” in certain personnel
discussions. HRS § 92-5(a)(2) (emphasis added). The UIPA’s
plain language, on the other hand, allows a record to be withheld
from the public if the record contains information that, if
disclosed, “would constitute a clearly unwarranted invasion of
personal privacy,” HRS § 92F-13(1), and the UIPA sets forth an
express test for determining whether this standard is met, see
HRS § 92F-14.
In addition to these differences in plain language, the
Sunshine Law and the UIPA’s exceptions differ in structure. The
UIPA establishes a distinct process for first identifying and
evaluating privacy interests, and second, determining whether
disclosure would constitute a “clearly unwarranted invasion” of
these interests. HRS § 92F-14. The Sunshine Law lacks a similar
process for determining whether “matters affecting privacy” are
involved in a personnel discussion.
The Sunshine Law and the UIPA’s exceptions also differ
in the mode of their application. When a UIPA exception applies,
the record is directly exempted from the disclosure requirement.
See, e.g., HRS § 92F-13(1) (“This part shall not require
disclosure of: (1) Government records which, if disclosed, would
constitute a clearly unwarranted invasion of personal privacy.”
(Emphasis added)). The Sunshine Law, on the other hand, does not
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provide automatic exceptions, as boards have the discretion to
determine whether a closed meeting must be held. See HRS § 92-4.
When the personnel-privacy exception applies, a
government board may decide to close a meeting to engage in
deliberations without risking the invasion of fundamental privacy
rights.9 Understanding that “the proverbial bell cannot be
‘unrung’ with regard to protecting individual privacy interests,”
OIP S. Memo 14-7, at 7, boards may properly make this decision
before such deliberations take place.
In sum, the Sunshine Law and UIPA differ in both their
plain language and structure. While they share a similar policy
intent, they are different statutes. In light of their
distinctions, we do not read the UIPA’s balancing test into the
Sunshine Law’s personnel-privacy exception. We adhere to the
plain language of this exception, which allows specific personnel
discussions to take place in a closed meeting, conditioned on
whether “consideration of matters affecting privacy will be
involved.” HRS § 92-5(a)(2).
9
Article 1, section 6 of the Hawaii Constitution provides, “The
right of the people to privacy is recognized and shall not be infringed
without the showing of a compelling state interest.” Haw. Const. art. 1, § 6.
This provision protects the right to privacy in the “informational” sense.
See Cohan v. Ayabe, 132 Hawaii 408, 322 P.3d 948 (2014); Stand. Comm. Rep.
No. 69, in Proceedings of the Constitutional Convention of Hawaii of 1978
(Proceedings), Vol. I, at 674. It “concerns the possible abuses in the use of
highly personal and intimate information in the hands of government or private
parties[.]” Nakano v. Matayoshi, 68 Haw. 140, 147, 706 P.2d 814, 818 (1985)
(quoting Comm. Whole Rep. No. 15, in Proceedings, Vol. 1, at 1024). In
essence, it is “the right of an individual not to have his private affairs
made public by the government.” Id. at 148 n.6, 706 P.2d at 819 n.6 (quoting
Whalen v. Roe, 429 U.S. 589, 599 n.24 (1977)).
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b. HRS § 92-5(a)(2) requires the person at issue to
have a legitimate privacy interest in the matters
discussed
For “matters affecting privacy” to be involved in a
personnel discussion, HRS § 92-5(a)(2), the person at issue must
have a “legitimate expectation of privacy” in the information,
Nakano v. Matayoshi, 68 Haw. 140, 148, 706 P.2d 814, 819 (1985).
People have a legitimate expectation of privacy in
“highly personal and intimate” information. See, e.g., Painting
Indus. of Hawaii Mkt. Recovery Fund v. Alm, 69 Haw. 449, 453,
746 P.2d 79, 82 (1987); State of Hawaii Org. of Police Officers
v. Soc’y of Prof’l Journalists - Univ. of Hawaii Chapter [SHOPO
v. SPJ], 83 Hawaii 378, 398, 927 P.2d 386, 406 (1996).
Generally, “highly personal and intimate” information may include
“medical, financial, educational, or employment records.”
Painting Indus., 60 Haw. at 453, 746 P.2d at 82; see, e.g.,
Nakano, 68 Haw. at 148, 706 P.2d at 819 (recognizing that “the
people of Hawaii have a legitimate expectation of privacy where
their personal financial affairs are concerned”); SHOPO, 83
Hawaii at 399, 927 P.2d at 407 (recognizing that “generally,
personnel records may contain information that, if disclosed,
would constitute an invasion of privacy”).
While general conceptions of privacy may provide a
useful template for a person’s reasonable expectations, these
expectations will necessarily differ on a case-by-case basis,
depending on the person and the topic of discussion. As Civil
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Beat correctly points out, “[p]rivacy is not an absolute
concept[.]” Some circumstances may reduce or perhaps entirely
defeat the legitimacy of a person’s expectation of privacy in
certain information.
In Nakano, we recognized generally that people “have a
legitimate expectation of privacy” in information concerning
their “personal financial affairs.” 68 Haw. at 148, 706 P.2d at
819. However, we recognized that this expectation will be
qualified in the presence of other factors, and that reasonable
expectations will depend on the person claiming the interest.
See id. at 148-49. Specifically, we noted:
[W]e cannot say an employee of the State or any of its
political subdivisions may reasonably expect that his
interest in avoiding disclosure of his financial
affairs is protected to the same extent as that of
other citizens, for the convention that proposed an
affirmation of “the right of confidentiality” also
authored constitutional language subjecting him to a
code of ethical conduct. Consequently, the
constitution now compels him to “make confidential
financial disclosures” if he is a public official with
“significant discretionary or fiscal powers.”
Moreover, these disclosures must “include, but not be
limited to, sources and amounts of income, business
ownership, officer and director positions, ownership
of real property, debts, creditor interests in
insolvent businesses and the names of persons
represented before government agencies.”
That any expectation of financial privacy a
public official in the above category may have
possessed has been qualified by Article XIV needs no
belaboring.
Id. at 148-49, 706 P.2d at 819 (citations and footnotes omitted).
Thus, reasonable expectations of privacy may be
affected by a person’s level of discretionary and fiscal
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authority in government. See id.; see also OIP Op. No. 04-07, at
6. For example, with regard to a then-President of the
University of Hawaii (UH), the OIP pointed out that “President
Dobelle’s privacy interest is substantially diminished . . . by
virtue of his position as President of UH.” OIP Op. No. 04-07,
at 6. The OIP explained:
More specifically, it is patently clear that President
Dobelle is one of the more prominent members of our
community. He is the CEO of the State’s only public
system of higher education, an entity that enjoys
semi-autonomous status, and oversees over 45,000
students on three university campuses and seven
community college campuses and a budget of
approximately $660 million. [The University] also
receives millions of dollars in research and other
types of grants, employs thousands, from
administrators and professors to custodians, and
significantly contributes to our State’s economy.
Moreover, President Dobelle is one of the most highly
compensated State employees, earning $442,000 per year
and residing at College Hill.
Id. at 6-7.
Reasonable expectations of privacy will also be
affected by existing laws and regulations concerning the matters
at issue. See Nakano 68 Haw. at 148-49, 706 P.2d at 819. An
example of this principle may be found in the UIPA, which
provides that a person does not have a significant privacy
interest in “[i]nformation disclosed under section 92F-
12(a)(14).” HRS § 92F-14(b)(4)(A). Section 92F-12(a)(14)
provides for the mandatory disclosure of certain types of
government employment information, such as employee names, job
titles, and salary information. Because this information must be
disclosed by law, a person cannot claim a reasonable expectation
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of privacy in information disclosed pursuant to this law.
A similar principle was recognized in Painting
Industry, a case concerning a government contractor’s claimed
privacy interest in his settlement agreement with the State. See
69 Haw. at 452, 746 P.2d at 81. The contractor sought to prevent
disclosure of the settlement agreement because, as he claimed,
public disclosure of the agreement would raise the inference that
the contractor “may have violated state statutes in the past.”
Id. While we held that the agreement did not contain “highly
personal and intimate information,” we recognized,
“[a]dditionally, if [the Department of Commerce and Consumer
Affairs] had decided to hold a formal disciplinary hearing before
the Contractor’s Licensing Board, this information would have
been public under HRS § 444-18.” Id. at 453, 746 P.2d at 82.
Thus, we held that the contractor did not have a legitimate
privacy interest in the settlement agreement. Id.
Finally, a person cannot claim a legitimate privacy
interest in information that has already been made public. See,
e.g., OIP Op. No. 03-16, at 5; OIP Op. No. 06-07, at 4 (“[A]
matter no longer affects the privacy of the individual where it
has been made public[.]”); see also Op. Att’y Gen. No. 94-01, at
4 (“When information which would otherwise be required to be kept
confidential under the public record law is already public, there
is no privacy interest to protect.”). For example, with regard
to a then-head football coach at the University of Hawaii, the
OIP addressed whether employment information already disclosed by
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the University and reported by the media could be withheld on the
basis of privacy. See OIP Op. No. 03-16, at 5. The OIP noted:
There clearly is no basis to withhold information that
[the University] previously released. In our opinion,
any argument to the contrary would be frivolous. Once
[the University] voluntarily disclosed the
information, whether to one member of the public or to
the media, it cannot later claim that the same
information is somehow protected from disclosure. An
agency certainly is not permitted to discriminate by
disclosing records to some and withholding the same
records from others. Stated another way, by its
voluntary disclosure of the information, [the
University] waived any argument that the same
information is protected from future disclosure.
Id.
The OIP acknowledged that “there may be an issue as to
whether statements in the press, without official confirmation,
likewise serve to waive an agency's right to withhold the
information.” Id. However, the OIP determined that the issue
was inapplicable, as the information concerning terms of the
contract “was confirmed by Coach Jones’ agent.” Id. The OIP
recognized:
The bell, therefore, has “rung” with respect to those
terms, and the bell cannot be “unring” [sic] by
denying access to those same terms. In other words,
withholding the information previously made public
serves no legitimate purpose because [the University]
cannot force the public to forget or pretend to forget
that information.
Id.
These factors, while not exhaustive, should be
considered by government boards and commissions - and by
reviewing courts - to determine whether a legitimate privacy
interest is at stake.
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C. Counts 5 and 6
The circuit court erred in dismissing Counts 5 and 6.
In these counts, Civil Beat alleged that the Commission violated
the Sunshine Law at the January 4, 6, and 18, 2017 executive
meetings. In addition to declaratory relief, Civil Beat sought
the release of any recordings or minutes from the executive
sessions, and for the circuit court to invalidate the
Commission’s retirement agreement with Kealoha, pursuant to HRS
§ 92-11.10 The circuit court improperly applied a heightened
pleading standard to dismiss these counts. As set forth below,
we vacate the circuit court’s judgment as to Counts 5 and 6, and
remand them for further proceedings.
In Counts 5 and 6, Civil Beat alleged that the
Commission violated HRS § 92-5(b), which provides, “In no
instance shall the board make a decision or deliberate toward a
decision in an executive meeting on matters not directly related
to the purposes specified [for closing the meeting].” Civil Beat
argued that at some point during the Commission’s three days of
closed deliberations regarding Kealoha’s “Status,” the
Commission’s discussions “exceeded the scope of any permissible
[exception].”
In both counts, Civil Beat primarily sought to
establish that the personnel-privacy exception was not a
10
HRS § 92-11 (2012) provides, “Any final action taken in violation
of sections 92-3 and 92-7 may be voidable upon proof of violation. A suit to
void any final action shall be commenced within ninety days of the action.”
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“permissible” exception because “matters affecting privacy” were
not involved in the Commission’s deliberations.11 Civil Beat
then claimed, on information and belief, that portions of the
January 4, 6, and 18 executive sessions “were not ‘directly
related’ to ‘consideration of matters affecting privacy.’”12
Civil Beat also claimed that portions of the January 4, 6, and 18
executive sessions “were not ‘directly related’ to questions for
the Commission’s attorney ‘pertaining to the board’s powers,
duties, privileges, immunities, and liabilities.”
In response to Counts 5 and 6, the Appellees argued
that the Commission “acted lawfully in closing its discussions
regarding the Chief of Police’s status with HPD and possible
retirement to protect privileged attorney-client information and
the Chief of Police’s privacy interests.” They argued that Civil
Beat did not state a valid cause of action and that Counts 5 and
6 should be dismissed because the factual allegations therein
were “formulaic, conclusory, and based on pure speculation.” The
Appellees asserted that Civil Beat was attempting “to discover
the entire factual bases of its claims through discovery in this
matter, which is impermissible.”
11
Under this argument, the attorney-client exception would be the
only permissible exception, and the scope of permissible discussions in
executive session would be more narrow.
12
We note that this reference to the personnel-privacy exception
incorrectly highlights its “purpose” to be “consideration of matters affecting
privacy.” To be clear, the purpose is “to consider the hire, evaluation,
dismissal, or discipline of an officer or employee or of charges brought
against the officer or employee, where consideration of matters affecting
privacy will be involved.” HRS § 92-5(a)(2) (emphasis added).
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At the hearing on the motion to dismiss, Civil Beat’s
counsel said that while Counts 3 and 4 “deal with the privacy
balancing test[,] Counts 5 and 6 are more about whether or not
the public has a cause of action when [there is] an improper
executive session.” Counsel argued that the Appellees “fault the
complaint for not alleging . . . what happened in the executive
session,” even though Civil Beat “can’t know what happened”
because the meeting was closed to the public.
Further, the circuit court asked Civil Beat’s counsel
whether Counts 5 and 6 could proceed if the court rejected the
privacy balancing test. The following exchange took place:
THE COURT: With respect to Counts 5 and 6, they rely
in large part on the claims in Counts 3
and 4 that you apply a balancing test when
the court reviews the allegations.
[COUNSEL]: Yes.
. . .
THE COURT: So if the court were to agree with the
defendants’ position that the balancing
test that you allege in Counts 3 and 4
does not apply to the meeting, it applies
to the documents, then . . . what would
remain in Counts 5 and 6 to establish that
there was a claim for an improper
executive session?
[COUNSEL]: I think it still would be a question of
whether or not the entire executive
session was proper, . . . [and] that just
can’t be resolved on a motion to
dismiss. . . . [E]ven if they had a
proper invocation of the personnel
exception, even if they had a proper
invocation of the attorney-client
privilege, they still would have to show
in some fashion, which often involves in
camera review, they would have to show in
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some fashion that the entire set of
meetings was properly within the scope of
the executive session.
THE COURT: Okay. Thank you.
In its written order, the circuit court dismissed
Counts 5 and 6 because they “set forth conclusory, rather than
factual, allegations[.]” This was improper. Because Civil
Beat’s claims satisfied the notice pleading standard applicable
in Hawaii courts, the circuit court erred in dismissing Counts 5
and 6 pursuant to HRCP Rule 12(b)(6). See Bank of America, N.A.
v. Reyes-Toledo, 143 Hawaii 249, 263, 428 P.3d 761, 775 (2018).
To overcome an HRCP Rule 12(b)(6) motion to dismiss, a
complaint must satisfy HRCP Rule 8(a) and our traditional notice
pleading standard. See id. The pleading must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief,” HRCP Rule 8(a)(1) (2000), where the
statement “gives the defendant fair notice of the claim and the
ground upon which it rests,” Reyes-Toledo, 143 Hawaii at 258,
428 P.3d at 770 (quoting Hall v. Kim, 53 Haw. 215, 221, 491 P.2d
541, 545 (1971)). “[A] complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of [the] claim
which would entitle [the plaintiff] to relief.” Id. (quoting
Hall at 221-22, 491 P.2d at 545).
Civil Beat alleged that portions of the January 4, 6,
and 18 executive sessions “were not ‘directly related’ to
‘consideration of matters affecting privacy,’” or “to questions
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for the Commission’s attorney ‘pertaining to the board’s powers,
duties, privileges, immunities, and liabilities.” Taking the
allegations in the complaint to be true, as we must when
reviewing a motion to dismiss, Civil Beat has sufficiently
alleged a violation of HRS § 92-5(b).
These allegations establish an issue of fact regarding
whether the Commission’s deliberations during the January 4, 6,
and 18 executive meetings remained within the narrowly-tailored
scope of the personnel-privacy and attorney-client exceptions.
Civil Beat provided notice that, if the discussions were not
within this scope, then Civil Beat would have a claim against the
Commission for violating the Sunshine Law, entitling Civil Beat
to relief. Thus, Civil Beat’s claims in Counts 5 and 6 should
not have been dismissed for failure to state a claim. We vacate
the judgment to this extent and remand Counts 5 and 6 for further
proceedings consistent with the following instructions.
D. Instructions and Relevant Considerations on Remand
1. Indispensable Parties
“Absence of indispensable parties can be raised at any
time[,] even by a reviewing court on its own motion.” Haiku
Plantations Ass’n v. Lono, 56 Haw. 96, 103, 529 P.2d 1, 5 (1974)
(quoting Filipino Fed. of America v. Cubico, 46 Haw. 353, 369,
380 P.2d 488, 497 (1963)). We raise the issue of Kealoha’s
absence sua sponte to ensure due process in the proceedings on
remand. See 7 Charles Alan Wright, Arthur R. Miller, & Mary Kay
Kane, Federal Practice and Procedure § 1602 (3d ed. 2001)
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(hereinafter “Wright & Miller”) (“The failure of the court to
protect those not before it may amount to a violation of due
process should the judgment in the action have the effect of
destroying their rights.”).13
Before proceeding to the merits of Counts 5 and 6, the
circuit court must order Kealoha to be joined as a party to the
action. See HRCP Rule 19(a) (2000). If Kealoha cannot be so
joined, the circuit court must consider whether the action may
proceed in any form among the parties presently before the court,
or whether Counts 5 and 6 must be dismissed altogether. See HRCP
Rule 19(b).
HRCP Rule 19 addresses the joinder of a nonparty
determined to be necessary for a just adjudication. We have
generally recognized a two-step analysis under Rule 19,
corresponding with subsections (a) and (b) of this rule:
First, the court must determine whether an absent
party should be joined if feasible according to the
factors listed in subsection (a). Second, if the
party meets the requirements under subsection (a) but
it is not feasible to join the party to the lawsuit,
the court must proceed to Rule 19(b) to determine
whether it may decide the case without the nonparty.
If the court must dismiss the lawsuit rather than
moving forward without the absent party, the nonparty
is labeled “indispensable.”
Marvin v. Pflueger, 127 Hawaii 490, 499, 280 P.3d 88, 97 (2012)
(citations and footnote omitted).
13
While this treatise addresses the Federal Rules of Civil
Procedure, HRCP Rule 19 is “in all relevant aspects substantively identical to
the federal rule[.]” Kellberg v. Yuen, 135 Hawaii 236, 251 n.11, 349 P.3d
343, 358 n.11 (2015) (quoting Marvin v. Pflueger, 127 Hawaii 490, 499 n.11,
280 P.3d 88, 97 n.11 (2012)).
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Under subsection (a) of Rule 19, an absent person will
be necessary for a just adjudication if one or more of the
following apply:
(1) in the person’s absence complete relief cannot be
accorded among those already parties, or (2) the
person claims an interest relating to the subject of
the action and is so situated that the disposition of
the action in the person’s absence may (A) as a
practical matter impair or impede the person’s ability
to protect that interest or (B) leave any of the
persons already parties subject to a substantial risk
of incurring double, multiple, or otherwise
inconsistent obligations by reason of the claimed
interest.
HRCP Rule 19(a).
“Rule 19 is intended to protect the absentee from
prejudice, to protect those made parties from harassment by
successive suits, and to protect the courts from being imposed
upon by multiple litigation.” Wright & Miller § 1609. The first
of these policies is reflected in the standard set forth in
subdivision (a)(2)(A), which requires joinder of a nonparty whose
interests are at issue and may be harmed if the case is resolved
in that person’s absence. See id. § 1604 (recognizing with
regard to subsection (a)(2)(A) that “[a] standard of this type
has been used by federal courts in the past on many occasions to
determine questions of indispensability[,]” and noting that
“reluctance to affect the rights of persons not before the court
has been a prominent factor in the development of the
indispensability principle”).
Based on the subject matter and claims for relief in
Counts 5 and 6, Kealoha is a party to be joined if feasible
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pursuant to Rule 19(a)(2)(A). Counts 5 and 6 directly concern
whether Kealoha had a legitimate privacy interest at stake in the
Commission’s discussions about the Target Letter and his
retirement. Because this case concerns the subject of Kealoha’s
privacy, he would appear to have “an interest relating to the
subject of the action.” HRCP Rule 19(a)(2); see Kellberg v.
Yuen, 135 Hawaii 236, 252 n.13, 349 P.3d 343, 359 n.13 (2015)
(“[A]n absent party may be silent and still ‘claim an interest’
under Rule 19(a) because ‘ “claims an interest” in this context
means nothing more than appears to have such an interest.’”
(Citation omitted)).14
Further, “as a practical matter,” Kealoha’s interests
may be impaired or impeded by the disposition of Counts 5 and 6
in his absence. HRCP Rule 19(a)(2)(A). In both counts, Civil
Beat requested the release of audio recordings and minutes from
the Commission’s January 4, 6, and 18 executive meetings.
Because Kealoha could claim a privacy interest in the details of
these discussions, the public release of these details may impede
attempts to keep this information private.
Additionally, Civil Beat sought to invalidate Kealoha’s
retirement agreement with the Commission. Resolving this in
Civil Beat’s favor would certainly appear to “impair or impede”
14
This is not to be construed as a determination that Kealoha indeed
had a legitimate privacy interest at stake, as we reserve this question for
the circuit court on remand. “[T]he first step of the Rule 19 analysis asks
whether the absent party ‘claims an interest relating to the subject of the
action[,]’ not whether the absent party has a vested interest.” Kellberg, 135
Hawaii at 252 n.13, 349 P.3d at 359 n.13 (quoting HRCP Rule 19(a)).
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Kealoha’s ability to protect his contractual interests. See,
e.g., Kellberg, 135 Hawaii at 252-53, 349 P.3d at 359-60
(“[I]nvalidating the subdivision would ‘impair or impede’ the lot
owners’ ability to protect their respective property
interests.”); Asato v. Procurement Policy Bd., 132 Hawaii 333,
356, 322 P.3d 228, 251 (2014) (“[G]enerally, the parties to [a]
contract must be made parties to a suit in which the contract is
challenged.”).
Although Rule 19(a) plainly applies, neither party
considered the issue below or on appeal. Contrary to Rule 19(a),
Civil Beat did not join Kealoha as a party to this litigation.
See HRCP Rule 19(a) (“A person who is subject to service of
process shall be joined as a party in the action if . . . (2) the
person claims an interest relating to the subject of the action
and is so situated that the disposition of the action in the
person’s absence may (A) as a practical matter impair or impede
the person’s ability to protect that interest[.]” (Emphasis
added)). Civil Beat also did not comply with Rule 19(c), which
requires a pleading to “state the names, if known to the pleader,
of any persons as described in subdivisions (a)(1)-(2) hereof who
are not joined, and the reasons why they are not joined.”15
15
In their motion to dismiss, the Appellees did not challenge the
pleadings for failure to join a party under Rule 19. See HRCP Rule 12(b)(7).
Thus, if the Appellees were to subsequently raise a defense pursuant to Rule
19(a), it would be deemed waived. See Marvin, 127 Hawaii at 501-02, 280 P.3d
at 99-100 (recognizing that pursuant to HRCP Rule 12, the defense of failure
to join a necessary party under Rule 19(a) is waived if it is not timely
raised in a defendant’s answer or in a pre-answer motion.); see also Kellberg,
135 Hawaii at 251 n.12, 349 P.3d at 358 n.12 (“The timing for raising a
(continued...)
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Given the posture of this case and the circumstances of
our Rule 19 review, we instruct the circuit court on remand to
order Kealoha to be joined as a party pursuant to HRCP Rule
19(a). If Kealoha cannot be so joined, the circuit court must
analyze the factors under Rule 19(b) to determine whether “in
equity and good conscience” the action may proceed in any form
among Civil Beat and the Appellees, or whether it must be
dismissed. HRCP Rule 19(b).
2. Analysis under HRS § 92-5(b).
The circuit court’s analysis on remand will concern
whether the Commission held a closed meeting that exceeded the
scope of any permissible exception, such that the Commission was
obligated to reconvene in an open meeting. See HRS § 92-5(b).
The legislature amended the Sunshine Law in 1985 to,
among other things, prohibit boards from “mak[ing] a decision or
deliberat[ing] toward a decision in an executive meeting on
matters not directly related to the purposes specified” for
closing the meeting. 1985 Haw. Sess. Laws Act 278, § 3 at 592
(emphasis added). This established a narrower standard in
section 92-5(b) than earlier draft language, which would have
allowed deliberations on matters “reasonably related” to the
purpose of the executive session. Conf. Comm. Rep. No. 36, in
1985 Senate Journal, at 867; Conf. Comm. Rep. No. 41, in 1985
15
(...continued)
defense under Rule 19 is critical.”). Here, waiver is not at issue, as the
Appellees have not asserted a defense or objection based on Rule 19.
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House Journal, at 907.
Section 92-5(b) aligns with other Sunshine Law
provisions requiring exceptions to the open meeting requirements
to be “strictly construed against closed meetings.” HRS § 92-
1(3); see HRS §§ 92-4, 92-5. In interpreting these provisions,
the OIP has explained that “when any board discussion extends
beyond the narrow confines of the specified executive meeting
purpose, which purpose must be strictly construed, the board must
reconvene in a public meeting to continue the discussion.” OIP
Op. No. 05-11, at 5. The OIP has also explained:
[A] board may deliberate and decide matters in an
executive meeting only to the extent necessary to
execute the lawful purpose for which the executive
meeting is convened and to maintain the
confidentiality of the matters intended to be
protected by the exception provided. A board, thus,
must reconvene in an open meeting to make or
deliberate toward a decision to the extent it may do
so without defeating the lawful purpose for which the
executive meeting may be held.
Id. at 6.
Based on Civil Beat’s allegations in Counts 5 and 6,
the circuit court should first determine whether the personnel-
privacy exception was a permissible exception for the January 4
meeting, continued to January 6, and for the January 18 meeting.
This determination will inform the nature of the court’s second
inquiry, which is whether the Commission’s discussions at each
meeting remained directly within the scope of the personnel-
privacy exception, if permitted, or were otherwise directly
within the scope of the attorney-client exception.
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a. Permissibility of the Personnel-Privacy Exception
To determine whether the personnel-privacy exception
applied to the January 4 and 6 executive meetings, or the
January 18 executive meeting, the circuit court must determine
(1) whether the Commission considered Kealoha’s “hire,
evaluation, dismissal, or discipline,” or charges against him,
and (2) whether the considerations involved matters in which
Kealoha had a legitimate privacy interest. HRS § 92-5(a)(2).
The circuit court may only resolve this after further development
of the facts and after providing the parties the opportunity to
assert their respective positions.
Based on the limited factual record before this court,
we make the following preliminary observations.
First, a “retirement” is not within the plain meaning
of “hire, evaluation, dismissal, or discipline,” or “charges.”
HRS § 92-5(a)(2). The allegations in the complaint provide that
the Commission, which had already come to an “agreement in
principle” on Kealoha’s retirement on January 6, entered into an
executive session on January 18 to reach a formal agreement as to
Kealoha’s retirement. It is thus unclear, based on the limited
record before us, whether the January 18 executive session in
fact involved considerations within the scope of the first prong
of the personnel-privacy exception. Moreover, as to the
“privacy” prong, because no legitimate privacy interest may be
held in matters already public, Kealoha’s retirement would not
appear to be within the scope of “matters affecting privacy” at
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the January 18 executive session.
Similarly, the circuit court should consider Civil
Beat’s allegations regarding the public nature of the Target
Letter when determining what matters discussed at the January 4
and 6 executive sessions affected Kealoha’s legitimate privacy
interests. The court should further consider other circumstances
that would limit or perhaps diminish Kealoha’s reasonable
expectations of privacy in certain information, given his then-
role as a prominent public servant at the head of the State’s
largest police force, and given any other relevant considerations
regarding the matters under discussion.
b. Whether the Discussions Remained Within the Scope
of the Permissible Exceptions
If the circuit court finds that the Commission had a
proper basis for invoking the personnel-privacy exception at the
executive sessions under review, the court must conduct a two-
step analysis. First, the court will determine to what extent
the Commission’s discussions and deliberations therein fell
within the scope of the personnel-privacy exception. That is,
the court must determine to what extent the Commission’s
discussions and deliberations were “directly related to” the
purpose of closing the meeting pursuant to the personnel-privacy
exception. HRS § 92-5(b).
The personnel-privacy exception allows boards to
discuss the “hire, evaluation, dismissal, or discipline” of
personnel, or “charges brought against” personnel, without the
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risk of invading the person’s privacy. HRS § 92-5(a)(2). The
purpose of this exception is to protect individual privacy
rights. Thus, on remand, the circuit court must examine the
meeting minutes in-camera to determine to what extent the
Commission’s discussions were “directly related to” this purpose.
HRS § 92-5(b).
Second, if portions of the executive meeting minutes
fell outside the scope of the personnel-privacy exception, the
circuit court will then alternatively consider the attorney-
client exception. The court must determine whether the remaining
portions of the executive meeting were “directly related to” 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.” HRS § 92-5(a)(4).
If the circuit court finds that the personnel-privacy
exception was not properly invoked for a given meeting and was
therefore impermissible, then the court must proceed directly to
the second step of the above analysis to identify whether any
portions of the meeting exceeded the scope of the attorney-client
exception.
If any portions of the meetings at issue exceeded the
scope of any permissible exception, then this will indicate that
the Commission did not comply with section 92-5(b).
3. Scope of the Attorney-Client Exception
As discussed above, the circuit court must resolve
whether the Commission held a closed meeting that exceeded the
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scope of any permissible exception, and this analysis will
involve an in-camera review of the January 4, 6, and 18 executive
meeting minutes to determine whether portions of the meeting fell
outside the scope of the Sunshine Law’s attorney-client exception
under HRS § 92-5(a)(4). See HRS § 92-5(b). Because our case law
has not yet construed the scope of this exception, we take this
opportunity to provide guidance.
In the circuit court’s order granting the Appellees’
motion to dismiss, the court ruled that “the Commission had the
authority to and did meet in executive session to preserve its
attorney-client privilege.” We clarify that a board’s authority
to meet in executive session to consult with its attorney
pursuant to HRS § 92-5(a)(4) is narrower in scope than the
attorney-client privilege, as demonstrated by the plain language
and legislative history of the attorney-client exception.
The attorney-client privilege protects “confidential
communications” between a client and the client’s attorney “made
for the purpose of facilitating the rendition of professional
legal services to the client[.]” Hawaii Rules of Evidence (HRE)
Rule 503(b); see also Save Sunset Beach Coal. v. City and Cty. of
Honolulu, 102 Hawaii 465, 484, 78 P.3d 1, 20 (2003) (“The
attorney-client privilege is codified in the Hawaii Rules of
Evidence (HRE) Rule 503[.]”). A confidential communication is
“[a] communication . . . not intended to be disclosed to third
persons other than those to whom disclosure would be in
furtherance of the rendition of professional legal services to
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the client or those reasonably necessary for the transmission of
the communication.” HRE Rule 503(a)(5).
Unlike the attorney-client privilege, the Sunshine
Law’s attorney-client exception protects communications relating
only to “questions and issues pertaining to the board’s powers,
duties, privileges, immunities, and liabilities.” HRS § 92-
5(a)(4). These specific conditions demonstrate that the
attorney-client exception is not equivalent in scope to the
attorney-client privilege.
This has not always been the case. When the Sunshine
Law was first enacted, a board was permitted to enter into an
executive session “[t]o consult with [its] attorney[.]” 1975
Haw. Sess. Laws Act 166, § 1 at 365 (emphasis added). This
original language allowed boards to engage in confidential
communications with their attorneys on a broad range of matters.
During the 1985 legislative session, S.B. 1413 was
introduced for the “purpose of . . . afford[ing] the public more
participation in governmental open meetings and more access to
public records.” S. Stand. Comm. Rep. No. 714, in 1985 Senate
Journal, at 1196. In order “[t]o make government as open as
possible to the public to protect the public interests,” members
of the Senate declared that “strengthening of the Sunshine Law is
necessary.” Id. To strengthen the Sunshine Law, the bill
proposed to amend the attorney-client exception to “require that
closed meetings with the board’s attorney be limited to matters
relating to an actual, threatened or proposed lawsuit in which
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the board is a party[.]” Id. (emphasis added).
In reviewing this proposed language, members of the
House Judiciary Committee expressed the following concern:
[T]he amendment pertaining to the board consulting
with their attorney attempts to abrogate or severely
limit the commonly recognized attorney-client
privilege. There may be instances when a board may
need to consult with their attorney on matters other
than pending or future litigation. Your Committee
felt boards should be able to consult with their
attorney in private, just as private parties do. If a
board consulted with its attorney in an open meeting
the privilege, or confidentiality of their
communications would be lost. Without the
confidentiality, a board may not adequately inform
their attorneys of facts and as a result may receive
misguided advice. Your Committee was not willing to
accept the premise that the client is the public and
therefore the public should be able to attend meetings
when the board consulted with its attorney.
H. Stand. Comm. Rep. No. 889, in 1985 House Journal, at 1424.
The House Judiciary Committee proposed draft language
to “allow a board to meet in executive meeting with their
attorney to consult on their legal responsibilities, on legal
issues or on actual or proposed lawsuits.” Id. (emphasis added).
This version expanded the scope of the attorney-client exception
beyond the version proposed by the Senate, as the House draft
added “legal responsibilities” and “legal issues” to the list of
topics that could be kept confidential.
After the House proposed this broader language, the
bill was revised again in conference. The Conference Committee
amended the draft bill to “permit the board to consult with its
attorneys on questions and issues pertaining to the board’s
powers, duties, privileges, immunities, and liabilities.” Conf.
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Comm. Rep. No. 36, in 1985 Senate Journal, at 867; Conf. Comm.
Rep. No. 41, in 1985 House Journal, at 907. This language was
intended to “limit the situations in which a board could call an
executive meeting with its attorney.” Conf. Comm. Rep. No. 36,
in 1985 Senate Journal, at 867; Conf. Comm. Rep. No. 41, in 1985
House Journal, at 907. This language strikes a middle ground
between the House and Senate versions, and in any event, is far
narrower than the attorney-client privilege.
The OIP has provided further guidance as to the scope
of the attorney-client exception. It has advised that “a board
is authorized to consult with its attorney in an executive
meeting convened for any of the purposes listed in section 92-
5(a), HRS, so long as the consultation is necessary to achieve
the authorized purpose of the executive meeting.” OIP Op. No.
03-17, at 4. The OIP recognized that a “board may need its
attorney’s assistance to explain the legal ramifications of
various courses of conduct available to the board.” Id.; see
also Cty. of Kauai v. Office of Info. Practices, 120 Hawaii 34,
46, 200 P.3d 403, 415 (App. 2009) (determining that the board’s
attorney “consulted . . . consistently and at length throughout
the session regarding the procedure to follow in conducting an
investigation of KPD and that . . . consultation . . . largely
concerned the ramifications of the Sunshine Law on Council’s
investigation, a legal question”).
The OIP has also recognized that “consultation” within
the scope of the attorney-client exception may include helping
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the board limit its discussion to publicly noticed items on the
board’s agenda for that particular meeting. See OIP Op. No. 03-
17, at 5. The OIP advised that an attorney’s assistance to
prevent the board “from inadvertently straying into discussion[s]
or deliberation[s] of a topic not directly related to the
executive meeting’s purpose[] . . . would be consulting” under
HRS § 92-5(a)(4). Id. In other words, the attorney-client
exception may apply to communications between a board and its
attorney to ensure compliance with HRS § 92-5(b).
Reviewing courts, as well as boards and commissions,
should understand that an attorney is not a talisman, and
consultations in executive sessions must be purposeful and
unclouded by pretext. At all times, the “attendance [of] the
[board]’s attorneys at executive meetings must conform to [the]
policy” of requiring “policy-making . . . [to] be conducted in
public meetings, to the extent possible.” OIP Op. No. 03-12 at
10 (citing HRS § 92-1). As such, “once the [board] receives the
benefit of the attorney’s advice, it should discuss the courses
of action in public, and vote in public, unless to do otherwise
would defeat the lawful purpose of having the executive meeting.”
Id. Moreover, “[i]f a non-board member, including the board’s
attorney remains in an executive meeting after his or her
presence is no longer required for the meeting’s purpose, the
executive meeting may lose its ‘executive’ character.” Id. at 6.
The circuit court must consider and strictly apply
these rules when conducting in-camera review of the minutes from
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the Commission’s January 4, 6, and 18 executive meetings.
4. Potential Remedies
If the circuit court finds that the Commission violated
section 92-5(b), the court may award any appropriate remedy. See
HRS § 92-12(b) (“The circuit courts of the State shall have
jurisdiction to enforce the provisions of this part by injunction
or other appropriate remedy.”).
In addition to any other remedy the court may find
appropriate under the circumstances, the court shall order the
Commission to release the applicable executive meeting minutes,
either in full or in redacted form, if a violation is found. The
Sunshine Law requires government boards to “keep written or
recorded minutes of all meetings.” HRS § 92-9(a). These minutes
must be publicly available, unless “such disclosure would be
inconsistent with section 92-5.” HRS § 92-9(b). Where an
executive meeting, or a portion thereof, unlawfully took place
behind closed doors, any minutes reflecting the discussions and
deliberations that should have taken place openly will be subject
to the minutes disclosure requirement in section 92-9(b).16
Moreover, while the Sunshine Law will allow a board to
withhold executive meeting minutes, it “recognizes that, at a
16
Prior to July 1, 2018, section 92-9(b) provided, “The minutes
shall be public records and shall be available within thirty days after the
meeting[.]” In the 2017 legislative session, the legislature amended section
92-9(b) to provide, “The minutes shall be made available to the public by
posting on the board’s website or, if the board does not have a website, on an
appropriate state or county website within forty days after the meeting[.]”
2017 Haw. Sess. Laws Act 64, § 4 at 334 (emphasis added).
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future point in time, the need to maintain the confidentiality of
information contained in an executive meeting’s minutes may end.”
OIP Op. No. 06-07, at 3. “[M]inutes of executive meetings may be
withheld so long as their publication would defeat the lawful
purpose of the executive meeting, but no longer.” HRS § 92-9(b)
(emphasis added). If the circuit court determines that the
Commission lawfully met in executive session pursuant to both the
personnel-privacy and attorney-client exceptions, and that the
Commission’s discussions in executive session were “directly
related” to these exceptions, HRS § 92-5(b), portions of the
meeting minutes may still be subject to disclosure under section
92-9(b). See OIP Op. No. 06-07, at 4 (“[F]or an executive
meeting convened to protect an employee’s privacy interest, when
and to the extent matters considered would no longer affect that
person’s privacy, the minutes or portions of the minutes
reflecting those matters must be made available to the public.”).
Thus, for example, any portions of the executive
meeting minutes concerning information that has already been made
public by the Commission or its members must be made publicly
available. See id. at 1-2 (concluding that disclosure of
executive meeting minutes would not defeat the “executive
meeting’s lawful purpose of protecting the privacy interests of
Dr. Shon” because, among other things, the “[board]’s decision to
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not continue Dr. Shon’s appointment was made public”).17
Finally, so long as Kealoha is joined as a party, if
the circuit court finds that the Commission violated the Sunshine
Law’s open meeting provision at the January 18, 2017 meeting, the
court may void the Commission’s retirement agreement with
Kealoha. See HRS § 92-11 (“Any final action taken in violation
of sections 92-3 and 92-7 may be voidable upon proof of
violation. A suit to void any final action shall be commenced
within ninety days of the action.”).
“HRS § 92-3 or § 92-7 must be violated in order to
invoke the voidability provision.” Kanahele v. Maui Cty.
Council, 130 Hawaii 228, 257, 307 P.3d 1174, 1203 (2013). In
Kanahele, we recognized the ICA’s conclusion that “interaction
among board members that does not fall within HRS § 92-2.5
17
Civil Beat argues that OIP Opinion 06-07 establishes that the
analysis for determining whether a meeting was properly closed under the
personnel-privacy exception is the same analysis for determining whether a
record may be withheld pursuant to the UIPA’s privacy exception. However,
this opinion did not address an alleged violation of the Sunshine Law. At
issue in OIP Opinion 06-07 was a request for executive meeting minutes for a
meeting closed by the Board of Education pursuant to the personnel-privacy
exception.
The OIP held that, for purposes of disclosing the minutes of an
executive meeting, “a matter reported in the minutes affects the privacy of an
individual if it is one that would generally be protected under the UIPA.”
OIP Op. No. 06-07, at 4. When charged with administering the Sunshine Law,
the Attorney General similarly looked to section 92F-13(1) to determine the
standard for disclosing executive meeting minutes pursuant to a UIPA records
disclosure request. Op. Att’y Gen. No. 94-01, at 2.
We do not consider these opinions palpably erroneous for referring
to the UIPA, as they were limited to circumstances related to the disclosure
of meeting minutes. See Cty. of Kauai v. Office of Info. Practices, 120
Hawaii 34, 43, 200 P.3d 403, 412 (App. 2009) (concluding that it was proper
to analyze an issue concerning disclosure of executive meeting minutes
“according to both HRS Chapters 92 and 92F”). As such, these opinions do not
suggest that the UIPA’s disclosure standard must be applied to determine
whether an executive meeting was properly convened.
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constitutes a ‘closed meeting,’ or otherwise violates the open
meetings requirement under HRS § 92-3.” Id. at 257-58, 307 P.3d
at 1203-04. We noted that “[t]his conclusion is consistent with
the position taken by the OIP, which has opined that discussions
among board members concerning board business that are not
permitted by HRS § 92-2.5 or violate HRS § 92-5(b), renders the
board’s action(s) voidable under HRS § 92-11.” Id. at 258, 307
P.3d at 1204 (citations omitted). We resolved the issues in
Kanahele under a different provision and thus did not determine
whether a violation of HRS § 92-5(b) “constitutes a violation of
§ 92-3, so as to trigger the voidability analysis under § 92-11.”
Id.
To provide guidance on remand, we resolve that
deliberations conducted in violation of section 92-5(b) also
violate the open meetings requirement under section 92-3. See
HRS § 92-3 (“Every meeting of all boards shall be open to the
public and all persons shall be permitted to attend any meeting
unless otherwise provided in the constitution or as closed
pursuant to sections 92-4 and 92-5[.]”). As such, where
discussions and deliberations are not “directly related” to a
permissible exception, as required under section 92-5(b), the
board’s final action is voidable pursuant to section 92-11. See
OIP Op. No. 05-15, at 6 (finding that serial one-on-one
discussions directly violated HRS § 92-5(b), and concluding “that
the Council’s approval of the Resolution and matters flowing
therefrom are voidable”).
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Before section 92-1 was revised in 2005, it provided
that final actions “shall be voidable upon proof of wilful
violation” of the open meeting and notice provisions. HRS § 92-
11 (1993) (emphasis added). It now provides, “Any final action
taken in violation of sections 92-3 and 92-7 may be voidable upon
proof of violation.” HRS § 92-11 (2012) (emphasis added). When
proposing this language, the Conference Committee explained, “The
purpose of this bill is to clarify the law on public agency
meetings by: . . . (3) Providing that final actions taken in
violation of open meeting and public notice requirements may be
voidable upon mere proof of the violation.” Conf. Comm. Rep. No.
65, in 2005 House Journal, at 1007, 2005 Senate Journal, at 1794
(emphasis added). As such, proof establishing that a violation
has occurred will trigger the court’s discretion to order such a
remedy.
V. CONCLUSION
For the reasons stated above, we affirm in part and
vacate in part the circuit court’s November 30, 2017 judgment
entered pursuant to its November 20, 2017 order granting the
Appellees’ motion to dismiss. We vacate the circuit court’s
dismissal of Counts 1 and 2, and resolve the issues of statutory
interpretation in these counts in favor of Civil Beat. We affirm
the circuit court’s resolution of Counts 3 and 4 in favor of the
Appellees based purely on grounds of statutory interpretation.
Because we resolve Counts 1 to 4 in the present appeal, we order
no further proceedings on these matters. We vacate the circuit
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court’s dismissal of Counts 5 and 6 and remand these counts to
the circuit court for proceedings consistent with the
instructions in this opinion.
Robert Brian Black /s/ Mark E. Recktenwald
for appellant
/s/ Sabrina S. McKenna
Duane W.H. Pang
(Jessica Y.K. Wong /s/ Richard W. Pollack
with him on the brief)
for appellees /s/ Michael D. Wilson
/s/ Todd W. Eddins
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