Before the Honolulu City Council voted earlier this month to approve the proposed settlement of the long-running lawsuit over sewage treatment, the public was offered an opportunity to testify on its terms. Unfortunately, the public didn’t have the benefit of having a chance to review the settlement before offering testimony.

I was subsequently asked for my opinion whether this information was properly withheld from the public prior to the council’s vote to approve. My initial reaction was that it was likely proper, given that it involves a case in litigation, but I decided to take a closer look.

The Office of Information Practices has said several times that legal settlements involving public agencies must be disclosed, but those decisions have involved settlements that have already been approved, with disclosure sought (and eventually required) after the fact.

The issue of disclosure prior to final approval has, to my knowledge, not been addressed directly by OIP.

Section 92F-13 lists the statutory exceptions to the general rule that government records must be available to the public for inspection and copying.

§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.

Exemption 2 is what is typically relied on to keep matters pertaining to ongoing litigation from the public, in order to protect the agency’s ability to prosecute the case or defend itself.

In a very early opinion (No. 89-10), OIP explained the limits of this exception.

With respect to the exception created by section 92F-13(2), Hawaii Revised Statutes, government records under this exception are protected only “to the extent that such records would not be discoverable.” This section protects from disclosure those documents which would be protected under Rule 26 of the Hawaii Rules of Civil Procedure. Thus, this section preserves protection for documents involving the attorney-client, work product or other judicially recognized privileges.

In the current case, however, the proposed settlement would not appear to fall within the exception because the settlement is known to all parties to the lawsuit and does not appear to fall in one of the usual areas of legal privilege. Public disclosure of the terms of the settlement would not create any surprises for the other parties nor give them any additional information. It would, however, provide the public some reasonable ability to comment on the terms of the settlement.

The opinion, by the way, was authored by Hugh Jones, now a deputy attorney general and current president of the Hawaii State Bar Association.

Exception 3, the so-called “deliberative process” exception, might could also be argued to apply.

Another OIP opinion authored by Jones (No. 91-22) appears relevant.

While we conclude that certain records discussed by the Commission at its October 10, 1990 meeting fall within the protections of the deliberative process privilege, we also conclude that, in this case, any privilege attaching to these records was waived through substantial discussion of their contents at a meeting open to the public. While a determination of whether a party has, by their conduct, waived the protections of a privilege is a question of fact that must be decided on a case-by-case basis based upon the totality of circumstances, we find that such a waiver occurred in this case.

Further, while the UIPA does not expressly address whether government records that would otherwise be subject to the deliberative process privilege should be publicly available when discussed at a meeting open to the public, we note that the legislatures of several states have specifically addressed this question as part of state open meeting or open records laws.

This logic, spelled out in detail in the opinion, appears to undercut the claim for a continued exemption from disclosure when the matter is on a public agenda for substantive discussion.

But, frankly, handling information from legal cases is a sensitive area.

Anyone out there with a better fix on the legal issues involved in whether or not such matters can be/are required to be disclosed prior to final court approval of a settlement?