Opinion Letter No. 05-04
January 21, 2005
Executive Meetings to Interview Mayor's Appointees
A member of the Kauai County Council (the “Council”)
asked OIP for an advisory opinion regarding whether the Council
may convene an executive meeting to interview individuals who are
appointed by the Mayor to county boards and commissions.
OIP advised that the Council cannot meet in executive session in
order to interview the nominees because the interviews do not qualify
for any of the exemptions to the Sunshine Law’s open meeting
requirements, as set forth in section 92-5, HRS.
OIP rejected the argument that the Council’s interviews of
nominees triggered the Sunshine Law exemption that allows a board
to meet in executive session in order 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”
based upon the fact that the Council might have been able to protect
certain information from disclosure for privacy reasons under the
UIPA. The UIPA is not a state law under which information “must
be kept confidential” because the UIPA does not mandate confidentiality
of government records, but rather permits withholding under certain
exceptions to its general rule of public disclosure.
Also, although the UIPA recognizes that individuals
have a significant privacy interest in “applications”
and “nominations” for “appointment to a governmental
position,” OIP has previously opined that this significant
privacy interest is outweighed by the public interest in application
information concerning successful applicants or nominees because
such information “sheds light upon the composition, conduct,
and potential conflicts of interest of government board and commission
members.” Haw. Rev. Stat. § 92F-14(b)(4). OIP Op. Ltr.
Furthermore, although the Revised Charter of the County of Kauai
(“Charter”) requires open meetings “[w]ith the
exception of deliberations relating to confirmation of appointees[,]”
appearing to indicate that the Council’s hearings to confirm
appointees should be closed to the public, the Charter is not a
“state law” for purposes of invoking the exemption to
the open meeting requirements provided at section 92-5(a)(8), HRS.
Finally, because an individual nominated to a board or commission
will not be serving for pay or compensation, a nominee cannot be
considered a “hire” for purposes of invoking the exemption
in section 92-5(a)(2).