A settlement has been reach in a civil lawsuit against Jimmy Pleuger, the state, Kauai County, and other defendants brought by families of victims of the 2006 failure of Kaloko Dam, according to a Hawaii Reporter story by Malia Zimmerman.

But, according to Zimmerman, the public be blocked from learning the terms of the settlement and the possible cost to taxpayers because Pflueger’s lawyers are asking the court to seal the settlement to prevent public disclosure.

The move comes despite a series of legal opinions by the Office of Information Practices barring public agencies from entering into confidentiality agreements that contradict the law requiring most government records to be available for public inspection and copying.

In an October 1992 opinion drafted by attorney Hugh Jones (Op. No. 92-21), OIP ruled that “a public entity cannot enter into enforceable promises of confidentiality regarding records (or information contained therein) that are not protected by an applicable statutory exception. ”

A similar conclusion was reached in a February 2002 opinion (Op. No. 02-01) involving a settlement of a lawsuit between the University of Hawaii and researcher.

The OIP reviewed the Agreement, and found that the Agreement contains no information that would qualify as a significant privacy interest, and that the Agreement does not contain information that would not be discoverable in a judicial or quasi-judicial action to which the University is or may be a party. The OIP also found that disclosure of the Agreement would not cause the frustration of a legitimate government function.

Regarding confidentiality agreements, the OIP found that a confidentiality provision in a settlement
agreement that contravenes the agency’s duty to the public is impermissible under Hawaii law.

Based on these opinions, it seems most likely that the Kaloko settlement will also eventually be made public.

However, an earlier OIP case suggests that the timing of that disclosure may be a legitimate issue.

In Opinion No. 89-10, also drafted by Jones, OIP ruled that a settlement could be kept confidential until approved by all defendants, in order to avoid giving some defendants an unfair advantage in negotiations.

Under these circumstances, we are constrained to conclude that disclosure of the information contained in the settlement agreements would give a manifestly unfair advantage to the remaining defendants in the settlement negotiation process, thereby resulting in the “frustration of a legitimate government function” under section 92F-13(3), Hawaii Revised Statutes.

However, upon the final resolution of this lawsuit involving “weathering steel” used in the construction of the stadium, these settlement agreements must be made available for public inspection and copying under the UIPA. The civil claims asserted by the State ultimately belong to the people. There is a significant public interest in whether the State has prosecuted these claims in a diligent manner. Should any settlement proceeds be insufficient to remedy or repair the defects present in the stadium, the shortfall will ultimately be paid by State taxpayers. These considerations demand, in light of the policy of openness and disclosure fostered by the UIPA, that such documents ultimately be subject to public scrutiny. More importantly, following the conclusion of this lawsuit, no exception to the UIPA will authorize the nondisclosure of these settlement agreements. This result is not changed by the confidentiality provisions of the agreements, which must yield to the provisions of the UIPA.

In her story on the pending settlement, Zimmerman notes Pflueger still faces a trial on criminal charges stemming from the dam collapse, including seven counts of manslaughter.

Based on Opinion 89-10, Pflueger’s lawyers could argue that disclosure of the civil settlement could be prejudicial to his defense in the pending criminal trial and that any disclosure should await resolution of the criminal charges. It will be up to Fifth Circuit Court Judge Katherine Watanabe to make that initial decision.