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Oral Argument Before the Hawaii Supreme Court–SCAP-21-0000057

No. SCAP-21-0000057, Wednesday, October 20, 2021, 10 a.m.

HONOLULU CIVIL BEAT, Plaintiff-Appellant, vs. DEPARTMENT OF THE ATTORNEY GENERAL, Defendant-Appellee.

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

The oral argument was held remotely and  livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts.

Attorney for Appellant Honolulu Civil Beat:

Robert Brian Black

Attorneys for Appellee Dept. of the Attorney General:

Patricia Ohara and Stella M.L. Kam, Deputy Attorneys General

NOTE: Certificate of Recusal, by Associate Justice Paula A. Nakayama, filed 08/04/21.

NOTE: Order assigning Circuit Court Judge Paul B.K. Wong, in place of Nakayama, J., recused, filed 08/11/21.

NOTE: Order granting Application for Transfer, filed 08/13/21.

COURT: Recktenwald, C.J., McKenna, Wilson, and Eddins, JJ., and Circuit Judge Wong, in place of Nakayama, J., recused

[  Listen to the entire audio recording in mp3 format  ]

Brief Description:

Acting on a request from the Hawaiʻi State Legislature, Defendant-Appellee Department of the Attorney General (the State AG) compiled a report about the Office of the Auditor (the Report). Plaintiff-Appellant Honolulu Civil Beat Inc. (Civil Beat) requested a copy of the Report pursuant to Hawaiʻi’s Uniform Information Practices Act (the UIPA). The State AG told Civil Beat no. It claimed the Report was exempt from disclosure under three provisions of the UIPA:

  1. HRS § 92F-13(1) (exempting from disclosure “[g]overnment records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy”);
  2. HRS § 92F-13(3) (exempting from disclosure “[g]overnment records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function”); and
  3. HRS § 92F-13(4) (exempting from disclosure “[g]overnment records which, pursuant to state or federal law . . . are protected from disclosure”).

The circuit court sided with the State AG. It agreed that the Report was a confidential attorney-client communication and, by extension, protected from disclosure under HRS § 92F-13(4). The circuit court did not address either of the State AG’s other two justifications for withholding the Report.

On appeal, we reversed the circuit court. See Honolulu Civ. Beat Inc. v. Dep’t of Att’y Gen., 146 Hawaiʻi 285, 463 P.3d 942 (2020). The Report might have been prepared at the legislature’s request, but it was not prepared in the context of an attorney-client relationship. And, as a result, was not shielded from the UIPA’s disclosure requirements by HRS § 92F-13(4). We remanded the case to the circuit court for a determination of whether the Report should be withheld under HRS § 92F-13(1) or HRS § 92F-13(3).

On remand, the circuit court again sided with the State AG. It said the withholding of the Report was justified under both HRS § 92F-13(1) and HRS § 92F-13(3) and that the Report could not be disclosed in redacted form. Now, in its second appeal, Civil Beat argues that the circuit court erred in this post-remand order. Civil Beat says the Report is subject to disclosure under the UIPA. The State AG disagrees and asks us to affirm the circuit court.