The Star-Advertiser reported today that the city has delayed responding to certain parts of three federal subpoenas for records of the city’s troubled rail project.
Apparently the biggest sticking point surrounds minutes of executive sessions of the Honolulu Authority for Rapid Transportation board, and the city now says it is hiring an attorney to protect its interests.
The Star-Advertiser’s Kevin Dayton reported:
The third federal grand jury subpoena served on HART sought complete and unredacted copies of all HART board of directors meeting executive session minutes.
Those records documenting confidential meetings of the HART board were the focus of controversy last year when state Auditor Les Kondo said HART was not cooperating with his request for executive session minutes for 2014, 2015 and 2016. At the time, Kondo said he had received only heavily redacted minutes from June 2016 to September 2017.
HART Board Chairman Damien Kim has said HART will do its best to comply with that subpoena but that it raises some legal issues.
“Executive session is so that we can confer with our attorneys about some of the issues that might be in there,” Kim said in February. “So, like with the state audit, we just was worried that there’s some attorney-client privileges in there that we just want to exercise our rights and make sure that if we need to do something, we’ll do it. But we have to see what our attorneys have to say.”
Dayton’s story tells the reader what Mayor Caldwell’s spokesman had to say, what the deputy corporation counsel assigned to advise HART had to say, what HART’s executive director had to say, and what HART’s board chairman has had to say.
What isn’t mentioned is what state law says.
So I took a look at the state’s public records law, the Uniform Information Practices Act (UIPA) has to say about this situation.
§92F-19 Limitations on disclosure of government records to other agencies. (a) No agency may disclose or authorize disclosure of government records to any other agency unless the disclosure is:
(3) To another agency, another state, or the federal government, or foreign law enforcement agency or authority, if the disclosure is:
(A) For the purpose of a civil or criminal law enforcement activity authorized by law; and
(B) Pursuant to:
(i) A written agreement or written request, or
(ii) A verbal request, made under exigent circumstances, by an officer or employee of the requesting agency whose identity has been verified, provided that such request is promptly confirmed in writing.
That seems pretty straightforward, doesn’t it?
Applied to the subpoena for HART’s executive meeting minutes, the request is from a federal agency, by written subpoena, authorized by law, and for the purpose of “civil or criminal law enforcement activity”. In this circumstance, it certainly looks like HART is authorized to respond to the subpoenas by turning over the unredacted minutes.
Two points to make.
First, since this type of disclosure of otherwise confidential information was anticipated when the law was written, what’s really the problem?
Keep in mind that this isn’t a request to make the minutes public. It’s a request to provide them to a federal grand jury, which has its own confidentiality provisions that are enforced with criminal penalties for unauthorized disclosures. Under these circumstances, privacy isn’t a concern. Why the foot dragging?
And, second, this is a good example of my pet peeve about the mainstream media’s all-too-frequent reliance on the “he said-she said” reporting style apparently preferred by editors even when additional objective information (like looking at the law itself) would assist the reader in evaluating what’s being said.
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Thank you for making it clear, Ian.
How far are HART and the city going to go before they eventually turn over the information? How much more is their apparent noncompliance going to cost us? And most importantly, what are they trying to hide?
Despite my support for “mainstream” media, it is a fact that laziness and subjectivity abounds. More so perhaps in small markets where pay may not commensurate with the high cost of living and daily expenses of line journalists.
This disaster of a project and the characters that have enabled it is, pardon the pun, a train wreck.
Sadly it is the people of the state (yes, the state) that will be left holding the bag
when alleged mayor Cadwell terms out and tries to run for other offices. Same goes for all the other Ringling Bros clowns in city council, etc.
Yes, but the statute you cite merely says an agency “may” disclose under the enumerated circumstances. It doesn’t say “shall” disclose.
There may be legitimate reasons for treading carefully here, lest a rash decision lead to additional legal problems.
Nothing in the statute contradicts the very reasonable quote attributed to Mr. Kim, so examining the statute at length in a news story would not have produced much in the way of clarity.
While I share your pet peeve regarding simplistic “he said-she said” analyses, it is also peeveing when observers with limited expertise or insight get way ahead of themselves in their desire for simple and direct answers to scenarios that do not necessarily lend themselves to such.
I’ve been trying to think of examples of why it might make sense to withhold information that’s been requested under a federal subpoena, and I haven’t been able to come up with anything that’s more important than allowing the FBI to get a complete picture of what’s happened with rail.
Agreed.
And yet it’s just not that simple.
Ian,
I hadn’t seen your post here. But I just posted the following on my FB page.
“As an old crime, courts and investigative reporter I’ve been warning friends that this Kealoha federal investigation and prosecution could grow to even larger criminal investigations as various individuals tied to the Kealoha case want to save their butts by rolling over on officials involved in kickbacks and crimes in other areas. The construction of the crazily expensive “rail project” is ripe for corruption (as all rail projects going from the trains across the old west to the “train to nowhere” in California.
Now comes news today that the city is hiring an outside attorney to help handle issues related to a federal criminal investigation of the Honolulu rail project. Not a surprise after all. With various unions (concrete, electric, steel, etc) heavily involved in the rail project, there’s a chance that some high level public officials, including elected officials, could be involved. There’s a lot of money in the rail and a lot of political palms that need to be greased to keep the project going. Those people in the Kealoha case under investigation need to offer up higher ups and more important people than they are. City Prosecutor Keith Kaneshiro, who had to take leave of his post after receiving a federal subpoena because he worked closely with Mr. and Mrs. Kealoha and could possibly know a lot more about the Kealoha hui. If Kaneshiro roles over on someone, it’s going to have to be some BIG. (Hint: Think “mayor” or “governor” who likely have received a lot of campaign donations from the rail folks and others involved in state and city construction projects.)
I may be completely wrong about this but my old investigative reporter’s Spidey Sense is tingling.”
https://www.facebook.com/charles.memminger
Any thoughts?
Spidey needs to get his facts straight and temper his tingling.
Kaneshiro did not step aside because of a subpoena.
He stepped aside after he was strongly pressured to do so following his official notification that he was a target of a federal investigation.
The basis of that targeting remains unclear.
There has been no indication that Kaneshiro’s targeting has anything whatsoever to do with the rail project or that he is in any position to “role” over on anyone regarding “something big.” Absolutely none.
And there certainly has been no indication whatsoever that the governor could be implicated in anything illegal connected to any part of this, or anything else.
Yeah, get your criminals straight Memminger!
Kaneshiro’s criminality is most likely due to his role in the sweetheart “safe house” deal in Makiki, vociferously defending (Ms) Kealoha to the end and lordy knows what else!
I do hope he rolls as well as Cadwell minion Donna Leong. A wildfire is sometimes needed to get fresh growth for a clean, new beginning.
Well, Feet dragging may delay prison time… joining with the Kealoha’s and other reeking City officials, even perhaps our Mayor. And with the OHA LLC conspirators ruling by Judge CrabTree, everything happens at once! The LLC’s must turn over asset income and check registers within 30 days. This is probably why Trustees except Dr. Akina formed a “PIG” circular firing squad before the “Kukae” hits the fan! Funny tax payer money floating all over Hawaii!
Very revealing one line quote by Caldwell today telling people he respects the process and it’s time for people to move on. I’m sure he would love for the Feds investigating billions that disappeared with rail to move on.
Compare that to the in depth reactions of other officials.