It sounds to me that state auditor Les Kondo has overreacted to the public disclosure of a draft audit prepared by his office.

Last week, Civil Beat published a story based on a draft copy of a critical audit of the Office of Hawaiian Affairs. According to the story by CB reporter Anita Hofschneider, the audit found a pattern of inappropriate spending with little oversight.

Among the findings: OHA trustees tripled their personal allowances and are spending them on questionable expenses such as fancy dinners, international flights, seating upgrades, religious ceremonies, political events and medical expenses for the relative of a trustee.

The results of the initial analysis portray an agency where a handful of officials have power to disburse large sums of money with few checks and balances. Some even told auditors that it’s hard to say no to funding requests that they know don’t meet requirements.

At the time the story was published, the draft audit was already in the hands of OHA administrators, and was on the agenda for discussion at a board of trustees meeting that same day.

But Kondo’s response to the Civil Beat story was to hold a press conference blasting the “leak” of the document, and calling for an investigation to find who was responsible.

Kondo said computers in the auditor’s office had been searched to determine whether the leak originated there. He also said that he had written to the State Ethics Commission urging them to launch their own investigation.

Prior to taking over the auditor’s post in 2016, Kondo served as director of the State Ethics Commission from 2011-2016.

Kondo “contends the release of the audit violated ethics law because it consisted of information that wasn’t readily available to the public,” Civil Beat reported.

I decided to take a closer look at Kondo’s claim that the draft report was essentially a secret, classified document that, by law, should not have been disclosed.

It seems to me that this goes beyond what state law and good public policy would require.

First, of course, there’s the state law governing public access to government records.

It’s starting point is simple. Here’s the first part of Chapter 92F, Part II, “Freedom of Information.”

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

Okay. And what kinds of government records are exempt from this general presumption of openness?

These are specifically spelled out.

§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. [L 1988, c 262, pt of §1; am L 1993, c 250, §1]

None of those appear to apply to a draft audit, except perhaps #3. But even there, the draft audit in question had already been sent out for the agency’s response. It was not an early draft that might include much preliminary information. Once a draft is sent outside the auditor’s office for broader comment from the subject of the audit, it is likely no longer subject to the “frustration of a legitimate government function” exemption.

And it’s important to keep in mind that even those itemized exemptions are not necessarily declared to be somehow “top secret”. Those involving privacy may still be subject to a balancing test, with disclosure required if the public interest in disclosure outweighs the interests in continued confidentiality.

But what about Kondo’s reference to the state ethics code? Here’s the relevant section.

§84-12 Confidential information. No legislator or employee shall disclose information which by law or practice is not available to the public and which the legislator or employee acquires in the course of the legislator’s or employee’s official duties, or use the information for the legislator’s or employee’s personal gain or for the benefit of anyone; provided that this section shall not preclude a person who serves as the designee or representative of an entity that is a member of a task force from disclosing information to the entity which the person acquires as the entity’s designee or representative.

Notice that this section refers to “information” rather than specific documents, and prohibits disclosure of information “which by law or practice is not available to the public….”

It seems to me that since state audits are required by law to be available to the public, the information they contain is not a type which “by law or practice is not available to the public.” On the contrary, a draft audit contains precisely the kind of information which by law is meant to be available to the public, and its disclosure does not violate the ethics provision on confidential information.

It also seems to me Kondo misstated the ethics confidentiality provision by saying it covered information that wasn’t “readily available” to the public, which would appear to be broader than the actual language of the law.

However, state law regarding the auditor’s office has its own provision dealing with confidential information, which was added in 1996. But it doesn’t refer to the kind of information that would be in a draft already being circulated for agency comments.

[§23-9.5] Confidentiality. The auditor shall not be required to disclose any working papers. For the purposes of this section, “working papers” means the notes, internal memoranda, and records of work performed by the auditor on audits and other investigations undertaken pursuant to this chapter, including any and all project evidence collected and developed by the auditor.

Clearly, an audit is separate and distinct from the “working papers” on which it is based. So this provision also does not appear to cover a late-stage draft audit already being circulated outside the auditor’s office for comment.

All in all, it seems to me that the auditor needs to take a deep breath, forget about being embarrassed by the premature disclosure, embrace the benefits of the public’s right to know, and just get on with the job of getting the audit into final form.