Lingle keeps lid on Superferry records
Administration cites both attorney-client and executive privilege
The Lingle administration, citing attorney-client privilege and executive privilege, has declined a request by The Advertiser to publicly release hundreds of e-mails and other documents related to its decision to exempt the Hawaii Superferry project from environmental review.
The documents include e-mails from late 2004 from a deputy attorney general assigned to the project that discuss an environmental review.
A December 2004 e-mail from a state Department of Transportation design engineer to a project consultant, previously released to the newspaper under the state's open-records law, suggests the deputy attorney general's legal analysis supported those within the department who were pressing for a review.
"Our attorney ... feels that one statewide comprehensive document is necessary that would cover the improvements as well as the cumulative operational impacts," the design engineer wrote.
State lawmakers had asked Lingle administration officials last year to disclose what, if any, legal advice they received before they exempted the project in February 2005. But the administration would not discuss the matter because of attorney-client privilege.
Lawmakers wanted the information to determine whether the Lingle administration considered the legal risks before issuing the exemption.
The state Supreme Court ruled unanimously last August that the exemption was an error, a decision that led to further court challenges and public protests that halted ferry service. Gov. Linda Lingle signed a bill passed in a special session of the state Legislature that allowed ferry service to resume while a statewide environmental review is completed.
In the weeks after the Supreme Court's decision, Lingle and Barry Fukunaga — the former harbors and Transportation Department director and now the governor's chief of staff — said Superferry was being singled out and treated unfairly and described the court's ruling as a dramatic change in the state's environmental review policy.
But documents released under the open-records law have shown there was significant debate within the administration about an environmental review and explicit warnings by staff of the legal and public-relations consequences of exempting the project.
State Attorney General Mark Bennett's office, in a written response to questions from The Advertiser, said the state routinely declines to release information requested through the open-records law because of attorney-client privilege.
Bennett's office could not recall the administration specifically citing executive privilege to decline an open-records request, but said the term can in some circumstances be used interchangeably with the deliberative process privilege, which is a well-defined exception to the open-records law. The deliberative process privilege protects documents to avoid the frustration of a legitimate government function.
Executive privilege, which is rooted in the separation of powers between the executive, legislative and judicial branches of government found in the U.S. Constitution, protects material compiled to advise chief executives such as the president or governors.
According to Bennett's office, executive privilege is "justified on the ground that the quality of advice and the candor of policy discussions would be greatly impaired if the private discussions and reports of advisers were given a public airing."
State Senate Majority Leader Gary Hooser, D-7th (Kaua'i, Ni'ihau), who wanted an environmental review of Superferry, said the administration's decision not to release all of the documents is disappointing.
"It seems clear that there was a legal analysis and the Lingle administration needs to provide that," he said. "And, I would think, that if the legal analysis supported their position, they would have provided it already."
appeal also denied
The Advertiser requested the documents to help reconstruct the state's decision to exempt the Superferry project from environmental review after the project became the subject of statewide debate last year.
The Lingle administration would not release records from Bennett and his deputies, citing attorney-client privilege. The state Office of Information Practices denied an appeal by the newspaper to revisit a 1991 ruling that found that advice and counsel from the attorney general to state agencies is protected by the privilege and excepted from the open-records law.
The administration agreed to release thousands of documents from other administration officials — 21 boxes in all — in increments over the past six months. On Thursday, the administration provided a log that briefly describes additional documents being withheld because of attorney-client privilege and executive privilege. The newspaper has appealed to the Office of Information Practices for the release of some of these documents.
The newspaper has asked the OIP to review the content of several of the documents to determine whether attorney-client privilege and executive privilege are being properly claimed. The newspaper has argued that it is in the public interest of government transparency for the administration to release these select documents.
The Lingle administration also has provided thousands of Superferry-related documents to Marion Higa, the state auditor, for a performance audit of the administration's handling of the Superferry project that was required under the law that allowed ferry service to resume.
Higa has complained about the administration's use of attorney-client privilege and executive privilege to restrict her access to additional material.
Lawmakers had considered asking the Lingle administration to voluntarily waive attorney-client privilege as part of Higa's audit but removed the language from the bill after objections from the governor's office.
Several lawmakers, however, worried that the administration would liberally assert the privilege and prevent a full accounting of what happened.
"In hindsight, maybe giving them the benefit of the doubt was not the best thing to do," said state Rep. Marcus Oshiro, D-39th (Wahiawa), who aggressively questioned administration officials about Superferry last year. "I had hoped for and expected them to be more forthcoming and fess up to what most of us believe anyone would do, and that would be to request a legal opinion from their legal counsel."
Oshiro, an attorney, said he does not see any justification for the administration to withhold a legal analysis of whether an exemption was warranted, or discussions about strategy related to an environmental review, because of attorney-client privilege. He said, since the decision itself has been ruled an error by the Supreme Court and is no longer the subject of any Superferry lawsuits, the only reason for the administration to withhold the documents is to avoid embarrassment.
'they really messed up'
Oshiro described the administration's use of executive privilege as even more extraordinary. He said executive privilege is rarely invoked nationally and he can recall no previous time it has been used in Hawai'i to deny lawmakers or the public records linked to a public-policy decision.
"Either way, they really messed up on this one," he said. "If they did not ask for a legal opinion, they were negligent. If they did ask for a legal opinion and they did not follow that, they were grossly negligent."
Bennett's office, in the written response to the newspaper, said executive privilege is a necessary part of state executive power and has been applied to governors by the courts. The office said the courts focus less on the nature of the records sought and more on the effect of the records' release in discouraging candid discussions within government agencies.
Bennett's office cited a 1991 opinion in Times Mirror Co. vs. Superior Court in California that protected a governor's appointment calendars from public disclosure to the Los Angeles Times.
"The deliberative process privilege is grounded in the unromantic reality of politics; it rests on the understanding that if the public and the governor were entitled to precisely the same information, neither would likely receive it," the court found. "Politics is an ecumenical affair; it embraces persons and groups of every conceivable interest: public and private; popular and unpopular; Republican and Democratic and every partisan stripe in between; left, right and center.
"To disclose every private meeting or association of the governor and expect the decision-making process to function effectively, is to deny human nature and contrary to common sense and experience."
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