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Oral Argument Before the Hawaii Supreme Court — No. SCAP-17-0000480

(Amended, 10/08/18)

(2nd Amendment, 10/12/18)

No. SCAP-17-0000480, Thursday, October 18, 2018, 10:30 A.M.


The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for appellant:

Robert Brian Black

Attorneys for appellee:

Clyde J. Wadsworth, Solicitor General, and Kaliko onalani D. Fernandes, Deputy Solicitor General

NOTE: Order granting Application for Transfer, filed 03/01/18.

NOTE: Certificate of Recusal, by Associate Justice Paula A. Nakayama, filed 10/04/18.

NOTE: Order assigning Circuit Court Judge Paul B.K. Wong, in place of Nakayama, J., recused, filed 10/08/18.

COURT: MER, C.J., SSM, RWP, and MDW, JJ., and Circuit Court Judge Wong, in place of Nakayama, J., recused.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

This case concerns the request of Honolulu Civil Beat Inc. (“Civil Beat”) to the Department of the Attorney General (“Department”) for “access or copies of all final investigative reports related to the state auditor’s office from Jan. 1, 2015 to present.” On May 11, 2016, the Department provided Civil Beat with a Notice to Requester stating that its request was denied in its entirety based on HRS § 92F-13(1) and (3) of the Uniform Information Practice Act (“UIPA”). On August 23, 2016, the Department provided Civil Beat with an Amended Notice to Requester further denying its request on the basis that the requested report is confidential and subject to the attorney-client privilege and is therefore not required to be disclosed under HRS § 92F-13(4), which excludes government records protected from disclosure by state or federal law from UIPA.

On September 5, Civil Beat filed a complaint against the Department in the Circuit Court of the First Circuit seeking to compel the Department to disclose the report. The circuit court reviewed the report in camera over Civil Beat’s objection. After hearing arguments on the cross-motions, the circuit court determined that the Department is authorized by statute to provide legal services to the Legislature, that those services are covered by the attorney-client privilege under Hawai i Rule of Evidence 503 and qualify as confidential communications under Hawai i Rule of Professional Conduct 1.6, and that the report was prepared in response to a request for legal services. Thus, the circuit court concluded that the report is protected from disclosure by HRS § 92F-13(4).

Civil Beat appealed the circuit court’s judgment to the Intermediate Court of Appeals (“ICA”), raising the following three points of error on appeal: (1) whether the circuit court erred by, sua sponte, using HRPC Rule 1.6 as a confidentiality statute to bar disclosure of non-privileged client information in the Department’s possession; (2) whether the circuit court erred by holding that the Department met its burden of proof to justify withholding from the public the non-privileged facts in the Department’s investigation of the Office of the Auditor; and (3) whether the circuit court erred by reviewing the investigation report in camera without first requiring the Department to provide non-privileged information about the report in the public record. After briefing on the appeal was complete, Civil Beat filed a transfer application, which the Hawai i Supreme Court accepted on March 1, 2018.