Civil Beat Law Center for the Public Interest, Inc. v. City and County of Honolulu.

• Court: Hawaii Supreme Court
• Decided: June 26, 2019
• Docket: SCAP-17-0000899
• Status: Published

Opinion

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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 HAWAII

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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 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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 Hawaii’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 Hawaii 275, 280-81, 81

P.3d 1190, 1195-96 (2003) (quoting Blair v. Ing, 95 Hawaii 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

Hawaii 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 Hawaii 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

Hawaii 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 Hawaii 275, 280, 81 P.3d

1190, 1195 (2003) (quoting Blair v. Ing, 95 Hawaii 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 Hawaii 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 Hawaii 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 Hawaii 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 Hawaii 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.

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.”

Kahoohanohano v. State, 114 Hawaii 302, 332, 162 P.3d 696, 726

(2007) (emphasis omitted) (quoting Kemp v. State of Hawaii Child

Support Enforcement Agency, 111 Hawaii 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 Hawaii, 102 Hawaii 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 Hawaii 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.

21 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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

22 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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.

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

23 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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

24 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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. 25 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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 Hawaii 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 Hawaii.” HRS § 92F-2. Thus, disclosure is not required if it “would constitute a clearly unwarranted invasion of personal privacy[.]” HRS § 92F-13(1). 27 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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

28 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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 Hawaii 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 Hawaii 408, 322 P.3d 948 (2014); Stand. Comm. Rep. No. 69, in Proceedings of the Constitutional Convention of Hawaii 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)). 29 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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 Hawaii Mkt. Recovery Fund v. Alm, 69 Haw. 449, 453,

746 P.2d 79, 82 (1987); State of Hawaii Org. of Police Officers

v. Soc’y of Prof’l Journalists - Univ. of Hawaii Chapter [SHOPO

v. SPJ], 83 Hawaii 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 Hawaii have a legitimate expectation of privacy where

their personal financial affairs are concerned”); SHOPO, 83

Hawaii 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

30 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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

31 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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 Hawaii (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 32 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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 Hawaii, the

OIP addressed whether employment information already disclosed by 33 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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.

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. 34 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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.

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

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.” 35 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

“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). 36 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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 37 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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 Hawaii 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 Hawaii 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 Hawaii 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 38 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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) 39 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

(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 Hawaii 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 Hawaii 236, 251 n.11, 349 P.3d 343, 358 n.11 (2015) (quoting Marvin v. Pflueger, 127 Hawaii 490, 499 n.11, 280 P.3d 88, 97 n.11 (2012)). 40 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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 41 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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 Hawaii 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 Hawaii at 252 n.13, 349 P.3d at 359 n.13 (quoting HRCP Rule 19(a)). 42 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

Kealoha’s ability to protect his contractual interests. See,

e.g., Kellberg, 135 Hawaii 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 Hawaii 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 Hawaii 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 Hawaii at 251 n.12, 349 P.3d at 358 n.12 (“The timing for raising a (continued...) 43 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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. 44 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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.

45 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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 46 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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

47 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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

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 48 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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 Hawaii 465, 484, 78 P.3d 1, 20 (2003) (“The

attorney-client privilege is codified in the Hawaii 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 49 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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 50 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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. 51 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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 Kauai v. Office of Info. Practices, 120 Hawaii 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 52 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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 53 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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). 54 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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

55 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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 Hawaii 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 Hawaii 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. 56 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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.”

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”). 57 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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 58 *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

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