Honolulu Civil Beat Inc. v. Dep't of the Attorney Gen.

• Decision Date: 11 March 2020
• Docket Number: SCAP-17-0000480
• Citation: 463 P.3d 942
• Parties: HONOLULU CIVIL BEAT INC., Plaintiff-Appellant, v. DEPARTMENT OF the ATTORNEY GENERAL, Defendant-Appellee.
• Court: Hawaii Supreme Court

463 P.3d 942

HONOLULU CIVIL BEAT INC., Plaintiff-Appellant,

v.DEPARTMENT OF the ATTORNEY GENERAL, Defendant-Appellee.

SCAP-17-0000480

Supreme Court of Hawai‘i.

MARCH 11, 2020

Robert Brian Black for Petitioner

Kaliko‘onalani D. Fernandes (Clyde J. Wadsworth, Honolulu, with her on the briefs) For Respondent

RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ. AND CIRCUIT JUDGE WONG, IN PLACE OF NAKAYAMA, J. RECUSED

OPINION OF THE COURT BY WILSON, J.

In response to a Uniform Information Practices Act ("UIPA")¹ request from Plaintiff-Appellant Honolulu Civil Beat Inc. ("Civil Beat") to Defendant-Appellee the Department of the Attorney General ("the Department") for the results of an investigation into the Office of the Auditor, the State refused to produce any documentation; its refusal was based in part on the lawyer-client privilege and the professional rule protecting confidential lawyer-client communications. We hold that the State may not exclude a government record from disclosure under the UIPA on the basis of a lawyer-client relationship between two State entities which is "asserted but not proved[.]" Ipse Dixit, Black's Law Dictionary (11th ed. 2019). "An ipse dixit claim of privilege is insufficient." Sapp v. Wong, 62 Haw. 34, 38, 609 P.2d 137, 140 (1980).

I. BACKGROUND

A. Investigation of the Office of the Auditor

Pursuant to the Hawai‘i Constitution, the legislature, by a majority vote of each house in joint session, appoints a state auditor, who serves for an eight-year term. Haw. Const. art. VII, § 10. The auditor's constitutional duties are to conduct post-audits of the transactions, accounts, programs, and performance of all state departments, offices, and agencies; to certify the accuracy of financial statements issued by the respective accounting officers; to report the auditor's findings and recommendations to the governor and the legislature; and to make additional reports and conduct additional investigations as directed by the legislature. Id. The legislature can remove an auditor for cause by a two-thirds vote of the members in joint session. Id.

On April 22, 2015, the Department began an investigation of the Office of the Auditor in response to information it received from a legislator. On April 23, 2015, the Department requested that the legislator send it a letter formally requesting an investigation. A letter from the legislator requesting the investigation was received by the Department on April 24, 2015. The contents of the letter are not in the record.

An employee of the Department conducted the requested investigation, which the employee referred to as an "administrative investigation[.]" The employee drafted a report based on the investigation. That report, dated February 8, 2016, is in the record under seal, as is a declaration of its author and a brief follow up report dated April 11, 2016. The report was sent to the legislature in the spring of 2016.

B. Civil Beat's UIPA Request

On April 27, 2016, a reporter for Civil Beat emailed a special assistant to the attorney general, requesting, "[p]ursuant to Hawaii's public records law," "access to or copies of all final investigative reports related to the state auditor's office from Jan. 1, 2015 to present." The term "Hawaii's public records law" in the April 27, 2016 email was understood by the trial court to be referring to the UIPA. The only document in the Department's custody that met the reporter's description was the February 8, 2016 investigative report.

On May 11, 2016, the Department responded with a "Notice to Requester" which denied Civil Beat's request in its entirety based on two exceptions to the UIPA's disclosure requirements, HRS § 92F-13(1) and (3).² As justification for its denial of the request under these exceptions, the Department explained that disclosure of the report would constitute a clearly unwarranted invasion of personal privacy and would frustrate a legitimate government purpose:

The individuals identified in the requested record have a significant privacy interest in the personnel information contained in the record which outweighs any public interest in disclosure. Due to the nature of the information contained within the record, segregation of identifying information is not possible. Disclosure of the requested record would constitute a clearly unwarranted invasion of personal privacy of the individuals identified within the record.

In addition, the requested record is protected by the deliberative process privilege and must remain confidential in order to avoid the frustration of a legitimate government function.

On August 23, 2016, the Department sent Civil Beat an "Amended Notice to Requester" denying the request in its entirety on the basis of an additional exception, HRS § 92F-13(4).³ As justification, the Department stated that the record was "confidential and subject to the attorney client privilege."

C. Circuit Court Proceedings

Civil Beat filed a complaint against the Department in the Circuit Court of the First Circuit ("circuit court"). In its complaint, Civil Beat alleged that the Department's stated reasons for nondisclosure did not justify withholding the requested record in its entirety and that the Department had denied Civil Beat its right to access government records under the UIPA. Civil Beat requested that the circuit court enter an order directing the Department to disclose all public information sought in its April 27, 2016 request.

The Department filed an answer and a motion for summary judgment, arguing that the UIPA exceptions it identified in its Notice to Requester and Amended Notice to Requester protected the record from disclosure. The Department attached to its motion for summary judgment a declaration of the First Deputy Attorney General ("First Deputy Declaration"). The First Deputy Declaration states that in the spring of 2015, the Department "received a communication from the Legislature requesting that the Department conduct an investigation and provide a report to the Legislature on matters relating to the Office of the Legislative Auditor[,]" that the Department conducted the investigation and transmitted the report to the legislature in the spring of 2016, and that "[t]he report contains information which would reveal the communications between the Legislature and the Department, which are attorney client communications related to legal services provided by the Department to the Legislature." Civil Beat also filed a motion for summary judgment on the grounds that the Department had not and could not meet its burden to prove that the record was exempt from disclosure.

In the Department's reply memorandum in support of its motion for summary judgment and in opposition to Civil Beat's motion, the Department stated that it would be willing to submit the requested record to the court under seal.⁴ Civil Beat opposed in camera review of the report in its reply memorandum. Prior to a hearing on the motions, the circuit court reviewed the record in camera.

On April 20, 2017, the circuit court held a hearing on the Department's motion for summary judgment and Civil Beat's cross-motion for summary judgment.⁵ The court granted the Department's motion for summary judgment and denied Civil Beat's motion for summary judgment.

The court concluded that HRS § 92F-13(4), which exempts government records protected from disclosure by state law from the requirements of the UIPA, applies to the facts of this case. The court first stated that HRS § 26-7 (2009) "authorizes the Department to render legal services to the State legislature"⁶ and that HRS § 28-4 (2009) "requires that the Attorney General advise and counsel the legislature without charge at all times when called upon."⁷ The circuit court defined the parameters of the lawyer-client privilege with reference to Hawai‘i Rules of Evidence ("HRE") Rule 503 (1992) and the professional rule protecting confidential communications with reference to Hawai‘i Rules of Professional Conduct ("HRPC") Rule 1.6 (2014). It explained that HRE Rule 503 "recognizes a lawyer-client privilege" for "confidential communications between a lawyer or a representative of the lawyer and that lawyer's client made for the purpose of facilitating the rendition of professional legal services to the client."⁸ The circuit court noted that HRPC Rule 1.6(a) "states that a lawyer shall not reveal confidential information relating to the representation of a client unless the client consents."⁹

The court, having reviewed the report in camera, found that "it was prepared by the Department in response to the legislature's request for a rendition of services[,]" and concluded that it was a communication subject to the lawyer-client privilege under HRE Rule 503. Because there was no evidence that the legislature had consented to the Department revealing any of the information contained in the report, the circuit court further concluded that the report was a confidential communication covered by HRPC Rule 1.6. Accordingly, it held that the report was protected from disclosure under state law— HRE Rule 503 and HRPC Rule 1.6—and was therefore exempt from the UIPA under HRS § 92F-13(4).

The circuit court entered final judgment in favor of the Department and against Civil Beat, and dismissed any remaining claims with prejudice.

D. Appeal and Transfer

Civil Beat filed an appeal in the Intermediate Court of Appeals ("ICA"). On appeal, Civil Beat raised three points of error:

1. Whether the circuit court erred by, sua sponte, using HRPC 1.6 as a confidentiality statute to bar disclosure of non-privileged client information in the possession of the Department of the Attorney General.

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2. Whether the circuit court erred by holding that the Department of the Attorney General met its burden of proof to justify withholding from the public the non-privileged facts in the Department's investigation of the Office of the Auditor.

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3. Whether the circuit court erred by reviewing the investigation report in

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