i L i n d . n e t

The University of Hawaii says it will not publicly disclose a copy of a recent arbitrator’s ruling which concluded the terms of the faculty 2003-2009 contract remain in force even though the contract expired at the end of June.

Arbitrator and former Hawaii Supreme Court Associate Justice Mario Ramil decided in favor of the UH Professional Assembly, the faculty union that brought a class action grievance to enforce a so-called “evergreen clause”.

At issue was Article XXX of the UHPA contract, which is a public record. It provides:

A. This Agreement shall be effective as of July 1, 2003 and shall remain in effect to and including June 30, 2009. During the term of this Agreement, the parties, each on the call of the other, shall meet to bargain in good faith on matters covered herein. In the event that agreement cannot be reached on these matters, the current language of the Agreement shall continue in force and effect and Article XXIX, No Strike or Lockout, shall control the actions of the parties.

B. Negotiations for renewal shall be as provided by law. [emphasis added]

Ramil concluded the language of the contact is “plain and clear”, and UH “failed to make a plausible conflicting interpretation” that would create ambiguity.

The arbitrator’s decision was issued on July 20, and later mentioned briefly by UH President David McClain and noted in passing in several news stories, for example, in the Advertiser and Star-Bulletin.

When my initial inquiries failed to turn up an available copy of the decision, I couldn’t help wondering how it could have been reported on if the document wasn’t available to the news media and, by extension, the public.

So earlier this week I contacted Carolyn Tanaka, a former reporter and now Associate Vice President for External Affairs and University Relations at the University of Hawaii, to request a copy of Ramil’s decision.

After failing to get an acknowledgement or an answer after several days, I tried again.

Yesterday Cheryl Ernst responded in Tanaka’s absence. According to Ernst, the arbitrator’s decision is considered confidential because “the decision is covered under the bargaining terms of the contract.”

Ernst cited attorney-client privilege, attorney work product privilege, and agreements on confidentiality of negotiations to justify continued nondisclosure.

These justifications are disingenuous at best. Ramil’s decision clearly is not the work product of a UH attorney, nor was it a privileged communication between a UH attorney and the university as client since Ramil is not a UH attorney and the decision was obviously disclosed to others, including the union. Finally, it was the result of a grievance arbitration and clearly not a product of confidential negotiations.

Despite the university’s claims, the contract clearly recognizes arbitration decisions may have to be public.

A grievance is a complaint by a Faculty Member or the Union concerning the interpretation and application of the express terms of this Agreement. All matters under this Article, including investigations, shall be considered confidential. Information pertaining to the decision of an arbitrator may be subject to disclosure under the provisions of Section 92F, Hawaii Revised Statutes.

And Section 92F-11 provides, in part:

All government records are open to public inspection unless access is restricted or closed by law.

There are only a limited number of exceptions, and remember–if it doesn’t fall under one of these exceptions, the document has to be made public.

§92F-13 Government records; exceptions to general rule. This part shall not require disclosure of:

(1) Government records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy;

(2) Government records pertaining to the prosecution or defense of any judicial or quasi-judicial action to which the State or any county is or may be a party, to the extent that such records would not be discoverable;

(3) Government records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function;

(4) Government records which, pursuant to state or federal law including an order of any state or federal court, are protected from disclosure; and

(5) Inchoate and draft working papers of legislative committees including budget worksheets and unfiled committee reports; work product; records or transcripts of an investigating committee of the legislature which are closed by rules adopted pursuant to section 21-4 and the personal files of members of the legislature.

Does the arbitrator’s decision fall under any of these exceptions?

Let’s see. Unwarranted invasion of personal privacy? No way. It contains absolutely no personal information.

Defense in a court case? Nope.

To avoid frustration of a government function? Nope.

Specifically protected by law? Nope.

Legislative working papers? Not even close.

It sounds like UH is just grasping at straws to justify its policy.

The best thing is that despite the university’s continued secrecy, I was finally able to obtain a copy of the original file from another source. You can read the 10-page decision for yourself. [Ooops. The link initially didn't work, but has been corrected.]

See anything in there that requires secrecy? I certainly don’t.