Thanks to Honolulu attorney Rebecca Copeland’s “Record on Appeal” blog for calling my attention to a recent Hawaii Supreme Court case with unsettling implications for public access to government documents (“County has no legal duty to maintain records“).

Here’s her mini-summary of the case:

The case involved property on the Big Island. Molfino purchased the property intending to subdivide it. Molfino’s search of the County of Hawaii’s records revealed that the property had never been granted a subdivision for more than two lots. He sought a determination from the planning director, Yuen, for the approval of a seven-lot subdivision, but was denied. He then sold the property since he was unable to develop it. After he sold the property, Yuen approved the new owner a seven-lot subdivision. Later, Molfino learned that the property had, in fact, been approved for a six lot subdivision, but the record of the approval was not in the subdivision records when Molfino reviewed them on several occasions before he sold the property. He sued the County for negligence in failing to maintain proper records.

Here’s a slightly longer version lifted from the Supreme Court’s opinion in the case.

Molfino wanted to create a subdivision on the property. He visited the Planning Department and made copies of the property’s TMK file. Based on the property’s zoning classification, Molfino
understood that his property might consist of only two pre- existing lots. Allegedly missing from the TMK file at that time was an April 2000 letter from a realtor to the former Planning Director, which requested a pre-existing lot determination, and the former Planning Director’s May 2000 response letter, which stated that the property consisted of six pre-existing lots.

Mollify sued the county after he sold the property and only later learned of the key documents that had been missing from the file. In his lawsuit, he alleged the county “breached a legal duty to use reasonable care in maintaining the TMK file, and that this breach caused Molfino monetary damages.”

The lawsuit pointed to county rules, and later to the sate public records law, Chapter 92F HRS, and argued the county had an obligation to make all records available to the public.

The rules state, in part:

All public records shall be available for inspection by any person during established office hours unless public inspection of such records is in violation of any other state, federal, or county law….

Similarly, Chapter 92F provides:

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

The county argued that although the law required public inspection, it did not require the county to “maintain” any specific records.

The circuit court agreed and found in the county’s favor.

It ruled, in part:

4. If a duty and liability is to be imposed upon the County to maintain Planning Department records with unerring accuracy, it should be imposed by a legislative body. A legislative body is the proper entity to determine whether [to spend] the County’s scarce resources on such a duty and is capable of providing additional economic resources which may be necessary;

5. The Planning Department owes no duty to keep its records accurate and complete for persons who seek information regarding the degree to which real property may be capable of subdivision.

The case was appealed to the Intermediate Court of Appeals, which affirmed the decision, and then on to the Supreme Court.

The Hawaii Supreme Court also affirmed the decision in the county’s favor.

From their opinion:

Molfino’s sole support for his claim that the County owed him a legal duty to maintain accurate Planning Department records was Rule 1-8, which requires only that “[a]ll public records shall be available for inspection by any person,” and contains no express duty to maintain these records in “accurate, relevant, timely, and complete” condition.

The bottom line for the court apparently was that the public records law, known as the Uniform Information Practices Act (or UIPA), requires disclosure of public records and prohibits disclosure of confidential personal records, but does not explicitly require government agencies to keep complete records. As a result, the government does not face any liability for damage caused by missing documents which may, as in this case, have caused monetary damages.

The court took this position even though the Hawaii County Planning Director had confirmed that their policy is to retain all records as public records essentially forever.

This is worrisome, because documents can go missing as a result of routine misfiling or temporary removal from a particular file during a specific internal use, but they can also go missing as a result of deliberate efforts to conceal information from the public. Without a duty to maintain those records, and some means of holding agency officials and employees accountable, the public can’t trust that requests for public records will be honestly complied with.

In the absence of a legal duty to maintain public records in good order, the public can’t trust that requests to inspect public records will provide a true look at the agency’s actions. It necessarily weakens the public’s right to know.

Perhaps there’s some separate legal angle, not mentioned in this opinion, that can provide accountability without liability for damages of the type that were at issue in this case. Perhaps others will know.

The Supreme Court seemed to recognize that the lack of a statute requiring records to be kept and maintained in good order may be problematic, but took the position that this requires a legislative remedy and not a judicially-imposed fix.

So it looks to me like another item to go onto a legislative wish-list of things that would strengthen the public’s right to know.