Circuit Court Judge Joel August has ordered Attorney General Mark Bennett and Commerce and Consumer Affairs director Larry Reifurth to turn over a copy of a previously secret legal opinion for court review.

The order came in a legal challenge brought by Akaku: Maui Community Television, represented by Maui attorney Lance Collins.

In a September 29 opinion and order, August turned down a request made by Akaku to immediately make the opinion public, but said he order disclosure unless his own review finds that it falls directly within an exemption to Hawaii’s public records law.

Cable regulators have referred to the unpublished legal opinion as the basis for their decision to award contracts for the provision of public access, educational, and government programming via open competitive bidding, but claimed that it could not be made public because of “attorney-client privilege”.

Advocates of the current PEG providers say there is no other jurisdiction in the country where access providers are selected by competitive bidding.

Since 1961, Hawaii law has required AG opinions which respond to questions of law posed by department heads to be filed with the Lt. Governor and made public within three days. August said that at the time this requirement was added in 1961, the legislature was concerned about basing public policy on secret legal opinions.

A separate provision of law authorizes the Attorney General to offer “advice and counsel” to department heads regarding their official duties. This “advice and counsel” is not required to be made public.

In his opinion, August found that this opinion resulted from a request by a department head for advice on a matter of law, and it was used as the legal basis for subsequent policy decisions. August criticized the AG and DCCA for then redefining the opinion as “advice and counsel” in order to avoid public disclosure.