Here we go again. Another instance of the Abercrombie administration trying to turn back years of precedent in favor of secrecy.
The matter was reported by Civil Beat today (“It’s Your Money: Hawaii Residents Expected to Pay for Whistleblower Suit, But the state and the fired employee have agreed to keep details of what happened a secret).
According to CB, the state has entered into a confidential settlement of a whistleblower lawsuit, and is refusing to disclose details of the $90,000 settlement.
What the story doesn’t report is that this is far from a new issue. The Office of Information Practices has repeatedly held that the state and other public agencies cannot enter into such confidential settlements except to protect information exempted by statute from public disclosure. The opinions go back to 1989, OIP’s very first year.
Here are the prior OIP opinions, with excerpts from its case summaries.
Under the UIPA’s frustration of legitimate government function exception, the Department of the Attorney General may withhold access to settlement agreements in the Aloha Stadium litigation where the State has entered into settlements with fewer than all the defendants. Under these circumstances, the disclosure of settlement agreements between the State and settling defendants would give a manifestly unfair advantage to the non-settling defendants. Once the litigation is concluded, however, all the settlement agreements must be publicly available.
A settlement agreement in a 1963 film exhibition anti-trust suit brought by the State must be made available for public inspection and copying by the Department of the Attorney General. The OIP reached this conclusion despite the presence of a clause in a court-approved stipulation between the State and the defendants that the Attorney General argued could reasonably be construed to contain a promise by the State not to disclose the settlement agreement. Based upon court decisions surveyed in a 1989 opinion letter, the OIP stated 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.
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.
Kauai County asked whether the County could keep confidential the amounts paid under its private liability insurance policies to settle claims against the County related to the Ka Loko Dam breach on March 14, 2006 (the Insurance Proceeds).
OIP opined: (1) that the Insurance Proceeds could not be kept confidential based upon a confidentiality clause in the settlement agreement because such a clause must yield to the UIPA’s provisions; and (2) that no UIPA exception allows the County to withhold the Insurance Proceeds from public disclosure.
In so finding, OIP rejected a distinction between settlement payments made from public coffers versus private insurance proceeds. OIP found that the County’s total settlement amount reflects the expenditure of public funds, either directly from County coffers or indirectly through the payment of insurance premiums.
It’s very disappointing to run into another of these situations where the administration is going down the secrecy path. Sunshine Week is coming up soon, and this is another reminder of why the issue of open government is so important.
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Well, then, the thing to do is to urge our legislators to refuse to fund the settlement unless and until the terms of the settlement and the reasons for it are disclosed.
Both SB 2738 and HB 2476 are pending Third Reading in their respective houses before being sent over to the other side for further consideration.
Contact your legislators and the Chairs of the committees to which they are referred (Judiciary & Labor and Way & Means in the Senate; Judiciary and Finance in the House) to express your opposition.
Contact info may be found at capitol.hawaii.gov along with status and text of the bills.
Failing to fund the settlement unfairly hurts the whistleblower, who was after all the victim here. If you want to withhold something that might make a difference here, ask the Legislature to withhold some portion of the appropriation for the AG’s Office.
Well, that assumes that the claim has merit and, without seeing the terms of the settlement and the reason for it, we can’t come to that conclusion.
Of course, if it’s just the standard “we admit no liability, we’re settling to avoid the costs of trial,” then we won’t learn much. However, I have to assume there’s more to it than that; otherwise, why keep it secret?
Also, the AG is required by law to demonstrate that measures have been undertaken to reduce and avoid repetition of similar claims against the State; if we don’t know the what amn d why, how can we assess wherther the AG has done what’s bnecessary to make sure the same thing doesn’t happen again?
If the taxpayers are asked to pay…they should get the information.