NO. 29059 - Monday, August 10, 2009 - 11 a.m.
COUNTY OF KAUAI, KAUAI COUNTY COUNCIL; BILL "KAIPO" ASING, JAMES KUNANE TOKIOKA, JAY FURFARO, SHAYLENE ISERI-CARVALHO, DARYL W. KANESHIRO, MEL RAPOZO, JOANN A. YUKIMURA, and PETER A. NAKAMURA, in their official capacities, Plaintiffs-Appellees, vs. OFFICE OF INFORMATION PRACTICES, STATE OF HAWAII; and the Director of the Office of Information Practices, in his official capacity, Defendants-Appellants.
Attorney(s) for Petitioners-Defendants-Appellant(s)
Paul T. Tsukiyama, Cathy L. Takase and Jennifer Z. Brooks, Office of Information Practices, and Gail Y. Cosgrove and Kunio Kuwabe (Hisaka Yoshida & Cosgrove)
Attorney(s) for Respondents-Plaintiffs-Appellee(s)
Honorable Matthew S. K. Pyun, Jr., County Attorney, County of Kauai, and David J. Minkin and Becky T. Chestnut (McCorristion Miller Mukai MacKinnon)
NOTE: Certificate of Recusal by Justice Mark E. Recktenwald, filed 5/15/09.
NOTE: Order assigning Judge Glenn Hara in place of Recktenwald, recused, filed 5/18/09.
NOTE: Oral argument rescheduled from 10:00 a.m. to 11:00 a.m.
COURT: RTYM, CJ; PAN, SRA & JED, JJ, and Circuit Judge Glenn Hara in place of Recktenwald, recused.
Petitioners/Defendants-Appellants Office of Information Practices, State of Hawai`i (OIP) and the Director of OIP, in his official capacity (collectively "OIP") filed an application for writ of certiorari seeking review of the Intermediate Court of Appeals' (ICA's) February 19, 2009 judgment on appeal in support of its January 30, 2009 opinion. The ICA's opinion affirmed the Circuit Court of the Fifth Circuit's grant of summary judgment in favor of Respondents-Plaintiffs-Appellees County of Kaua`i, Kaua`i County Council, and Bill "Kaipo" Asing, James Kunane Tokioka, Jay Furfaro, Shaylene Iseri-Carvalho, Daryl W. Kaneshiro, Mel Rapozo, Joann A. Yukimura, and Peter A. Nakamura in their official capacities (collectively "the County") and ordered that the minutes from a meeting conducted by the Kaua`i County Council on January 20, 2005, identified as Executive Session 177 (ES-177), shall not be disclosed. In its application for writ of certiorari before this court, OIP asserts that the ICA gravely erred in (1) affirming the circuit court's jurisdiction to hear the Council's original action under the Sunshine Law, Hawai`i Revised Statutes (HRS) chapter 92, without then limiting its review to determining the applicability of that chapter; (2) not giving effect to the Kauai County Charter's more restrictive standard for closing a counsel meeting; (3) failing to consider the legislative history indicating that the Legislature intentionally narrowed the attorney-client executive meeting purpose provided by HRS § 92-5(a)(4); and (4) failing to defer to OIP's interpretation of Sunshine Law provisions under the palpably erroneous standard.