March 19, 1992 Ms. Barbara Marshall KHON-TV 1170 = Auahi Street Honolulu Hawaii 96813 Dear Ms. Marshall:

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March 19, 1992

Ms. Barbara Marshall

KHON-TV

1170 Auahi Street

Honolulu Hawaii=20 96813

Dear Ms. Marshall:

Re:Judicial Selection = Commission's=20 List of Nominees

to Fill Judicial=20 Vacancy

This is in reply to your letter dated March 10, 1992,=20 which

was telefaxed to the Office of Information Practices ("OIP") = on

March 11, 1992, regarding the above-referenced=20 matter.

ISSUES PRESENTED

Whether, under the Uniform Information Practices=20 Act

(Modified), chapter 92F, Hawaii Revised = Statutes=20 ("UIPA"), the

Judicial=20 Selection = Commission of = the State=20 of Hawaii

("Commission") is = an=20 "agency."

II.

Whether, under the UIPA, the following = information

maintained by the Commission must = be made=20 available for public

inspection and copying:

1.The list(s) of individuals who have applied or who=20 have

been recruited to apply for the vacancies in = the

Hawaii=20 Supreme Court, Intermediate Court of

Appeals, or Circuit Courts;

2.The number of individuals applying for each=20 current

judicial=20 vacancy;

3.The list of nominees to fill a judicial = vacancy that=20 is

delivered to the Governor by the Commission;

Ms.=20 Barbara Marshall
March 19, 1992
Page 2

OIP Op. Ltr. No. 92-3

4.The number of lists of nominees for appointment=20 to

judicial=20 office delivered to the Governor by the

Commission;

5.The number of individuals on each list of=20 nominees

delivered to the Governor by the Commission;

6.The number of female nominees on each list delivered=20 to

the Governor by the Commission;

7.The Commission's voting tabulations concerning=20 the

nominees appearing on any list delivered to = the

Governor; and

8.The names of commissioners who did not vote on=20 any

applicant and the reason they did not = vote.

BRIEF ANSWERS

Yes. The UIPA requires the disclosure of=20 "government

records" unless access to the same is closed or restricted=20 by

law. Under the UIPA, the term "government record"=20 means

"information maintained by an agency in written,=20 auditory,

visual, electronic, or other physical form." Haw. Rev.=20 Stat.

=EF=80=A7=20 92F-3 (Supp. 1991) (emphasis added). The term "agency" = is

defined by the UIPA to include any unit of government in=20 this

State, including a "commission." = Haw. Rev.=20 Stat. =EF=80=A7 92F-3 (Supp.

1991).

The UIPA does not apply to the nonadministrative=20 functions

of=20 the courts of this State. See Haw. Rev. Stat. =EF=80=A7 92F-3 = (Supp.

1991); OIP Op. Ltr. No. 90-4 (Jan. 29, 1990). Although=20 under

article VI, section 4 of the Constitution of the State of = Hawaii

("State Constitution"), the Commission is = attached to=20 the

Judiciary "for purposes of administration," based upon=20 a

decision by the U.S. Court of Appeals, Ninth Circuit, it is=20 our

opinion that the Commission = exercises an=20 executive or

administrative function, as opposed to a judicial = function.=20

Richardson v. Koshiba, 693 F.2d 911 (9th Cir. 1982).=20

Accordingly, we conclude that information maintained by=20 the

Commission in = any=20 physical form constitutes a "government

record," and that the Commission is = subject to=20 the provisions of

the UIPA.

II.

Under the UIPA, agencies are not required to=20 disclose

"[g]overnment records which, pursuant to state or federal=20 law

Ms.=20 Barbara Marshall
March 19, 1992
Page 3

OIP Op. Ltr. No. 92-3

including an order of any state or federal court, are=20 protected

from disclosure." Haw. Rev. Stat. =EF=80=A7 92F-13(4) (Supp. = 1991).

Article VI, section 4 of the State Constitution=20 expressly

provides that the "deliberations of the Commission = shall=20 be

confidential." Additionally, article VI, section 4 of the=20 State

Constitution authorizes the Commission "to = promulgate=20 rules

which shall have the force and effect of law." The record=20 of

proceedings of the Constitutional Convention of 1978=20 reflects

that the delegates considered it essential that the=20 Commission's

deliberations be confidential. It further reflects that=20 the

delegates intended that the Commission = establish the=20 boundaries

and limits of the confidentiality of the=20 Commission's

proceedings and actions under its constitutionally=20 delegated

rulemaking powers.

Rule 7 of the Judicial Selection Commission of = Hawaii=20 Rules

("Commission = Rules")=20 provides that "all commission=20 records,

proceedings and business, including the names of all=20 proposed

nominees and the names of nominees forwarded to the=20 appointing

authority, shall be confidential." Where, as here, the power = to

adopt rules has been delegated to an agency by the=20 State

Constitution itself, that delegation is absolute, except=20 as

limited by the State Constitution, the Constitution of=20 the

United States, or by the Legislature pursuant to a=20 power

expressly granted by the State Constitution. As such, it is=20 our

opinion that rules adopted pursuant to an express=20 constitu-

tional grant of rulemaking power that have the force and=20 effect

of=20 law qualify as a State law that protects government = records

from disclosure within the meaning of section 92F-13(4), = Hawaii

Revised Statutes.

While Rule 7 of the Commission = Rules purports=20 to protect

"all commission = records" from=20 disclosure, in our opinion, this

rule should be interpreted to protect from disclosure only=20 those

Commission = records,=20 proceedings and business that would reveal

the Commission's deliberative process. For example, we do=20 not

believe that Rule 7 of the Commission = Rules should=20 be read to

encompass the personnel, purchasing, or other=20 administrative

records of the Commission = since the=20 disclosure of this

information would not reveal the Commission's=20 constitutionally

protected deliberations.

However, because Rule 7 of the Commission = Rules=20 expressly

provides that "the names of all proposed nominees and the=20 names

of nominees forwarded to the appointing authority, shall=20 be

confidential," and because Commission = Rules have the=20 force and

Ms.=20 Barbara Marshall
March 19, 1992
Page 4

OIP Op. Ltr. No. 92-3

effect of law, we must conclude that under section=20 92F-13(4),

Hawaii=20 Revised Statutes, the Commission is = not=20 required to make

such lists available for public inspection and copying. It=20 is

important to recognize that the OIP does not have the=20 authority

to=20 opine on any question regarding the constitutionality of=20 Rule

7=20 of the Commission=20 Rules. This issue is more appropriately

within the jurisdiction of the State Attorney General and=20 the

courts.

Further, because the Commission's written = receipts

evidencing delivery of each list of nominees to the=20 appointing

authority would not reveal the Commission's deliberations,=20 and

because these receipts are not expressly protected=20 from

disclosure by the Commission's confidentiality rule, we=20 conclude

that these written receipts should be made available for=20 public

inspection and copying under the UIPA. The disclosure of=20 these

receipts will serve to verify the delivery date of each=20 list,

which will in turn disclose the date triggering=20 appointment

action under the Constitution. Additionally, because Rule=20 5(B)

of=20 the Commission=20 Rules specifically authorizes the Commission

to=20 disclose whether a commissioner did not vote on the

consideration of an applicant, it is our opinion that=20 this

information should also be publicly = announced.

Lastly, in our opinion, because Rule 7 of the Commission

Rules expressly provides that the names of all=20 nominees

forwarded to the appointing authority are confidential,=20 once

delivered to the governor in accordance with Rule 14 of=20 the

Commission = Rules, the=20 Commission's lists of judicial=20 nominees

continue to be confidential under State law. Thus, it is=20 our

opinion that once delivered to the governor, each list=20 of

Commission = nominees is=20 protected from required disclosure by

section 92F-13(4), Hawaii Revised=20 Statutes.

FACTS

The Judicial Selection Commission of = the State=20 of Hawaii

("Commission") = was=20 established in 1979 after voters ratified an

amendment proposed by the State's Constitutional Convention=20 of

1978. As ratified by the voters, article VI, section 3 of=20 the

Constitution of the State of Hawaii ("State=20 Constitution") sets

forth the process by which persons are appointed to=20 fill

vacancies in the office of the chief justice, or in the=20 Supreme

Court, the Intermediate Court of Appeals, or the Circuit=20 Courts.

This constitutional provision provides in pertinent=20 part:

Ms.=20 Barbara Marshall
March 19, 1992
Page 5

OIP Op. Ltr. No. 92-3

Section 3.

The governor shall, with the consent of

the senate, fill a vacancy in the office of the=20 chief

justice, supreme court, intermediate appellate=20 court

and circuit courts, by appointing a person from a=20 list

of not less than six nominees for the = vacancy,

presented to the governor by the judicial selection

commission.

If the governor fails to make any = appointment

within thirty days of presentation, or within ten=20 days

of the senate's rejection of any previous=20 appointment,

the appointment shall be made by the judicial

selection=20 commission from the=20 list with the consent of

the senate. If the senate fails to reject = any

appointment within thirty days thereof, it shall=20 be

deemed to have given its consent to such=20 appointment.

If the senate shall reject any appointment, = the

governor shall make another appointment from the=20 list

within ten days thereof. The same appointment = and

consent procedure shall be followed until a = valid

appointment has been made, or failing this, = the

commission = shall make the=20 appointment from the list,

without senate consent

.=20 . . .

Haw. Const. art. IV, =EF=80=A7 3 (emphasis = added).

The Commission is = created by=20 article VI, section 4 of the

State Constitution. Under article VI, section 4 of the=20 State

Constitution, the Commission "is = attached=20 to the judiciary

branch of the state government for purposes of=20 administration."

This constitutional provision also provides in pertinent=20 part:

The judicial selection commission = shall=20 select

one of its members to serve as chairperson. = The

commission = shall=20 promulgate rules which shall have the

force and effect of law. The deliberations of = the

commission = shall be=20 confidential.

Haw. Const. art. VI, =EF=80=A7 4 (emphasis = added).

When a judicial = vacancy occurs,=20 the Commission=20 publishes a

"Notice of Vacancy" in newspapers having a statewide=20 circula-

tion. The Notice of Vacancy announces that the Commission=20 is

accepting names of applicants for a particular judicial=20 vacancy,

Ms.=20 Barbara Marshall
March 19, 1992
Page 6

OIP Op. Ltr. No. 92-3

and routinely states that "[a]ll names submitted to=20 the

Commission will = be kept=20 confidential."

Applicants to fill a judicial = vacancy and=20 individuals whose

names have been furnished to the Commission by = others=20 must

complete a written "questionnaire," which we understand to=20 be

similar to an application form. The form transmittal=20 letter

used by the Commission to = send this=20 questionnaire to an

applicant is stamped "PERSONAL AND CONFIDENTIAL."=20 After

receiving this questionnaire, the Commission = interviews=20 each

applicant and conducts an investigation of each=20 applicant's

background, experience, and character, among other things.=20 See

Rules 9, 10 and 11 of the Commission=20 Rules.

Rule 5(C) of the Commission's Rules provides that=20 all

communications between commissioners, between a commissioner = and

an=20 applicant, or between any other person or organization = with

respect to the judicial = qualifications=20 of an applicant shall be

kept confidential. Indeed, the OIP's review of the=20 Commission's

standard form letters to applicants and third persons=20 reveals

that the Commission = consistently=20 reminds the recipients of this

Commission=20 policy.

After voting by secret ballot, the Commission = approves=20 a

list of not less than six nominees to fill each judicial

vacancy. See Rule 12(C) of the Commission = Rules. Under=20 Rule 14

of=20 the Commission=20 Rules, this list of nominees must be in

alphabetical order and hand delivered to the=20 appointing

authority, which in this case was the Governor. The OIP=20 is

informed by the Commission that = the list=20 of nominees is provided

to=20 the governor in the form of a letter, and the Commission

obtains a written receipt that confirms the date of=20 the

governor's receipt of each list of nominees submitted to=20 the

governor. The Commission also = informed=20 the OIP that it does not

notify the individuals whose names appear on each list=20 of

nominees that they have been nominated to fill a judicial

vacancy.

On or about March 7, 1992, Governor John Waihee=20 announced

that subject to the consent of the Senate, he was=20 appointing

Judges Robert G. Klein and Steven H. Levinson of the=20 First

Circuit Court to fill two vacancies in the Supreme Court of=20 the

State of Hawaii. The = Governor also=20 announced that he was

appointing First Deputy Attorney General Corinne K. A.=20 Watanabe

to=20 fill a vacancy in the Intermediate Court of Appeals, = and

Acting Ombudsman Karen N. Blondin to fill a judicial = vacancy=20 in

the First Circuit Court.

Ms.=20 Barbara Marshall
March 19, 1992
Page 7

OIP Op. Ltr. No. 92-3

By letter telefaxed to the OIP dated March 10, 1992,=20 you

requested an opinion concerning KHON-TV's right to inspect=20 the

lists of nominees delivered to the Governor by the Commission,

along with other information. In particular, your letter to=20 the

OIP stated:

We would like to have the list of all applicants=20 for

each vacancy in the Judiciary, or, if not those=20 names,

at least the number applying for each vacancy. We=20 are

seeking the names on the list sent to the Governor=20 for

each vacancy, which would inherently supply us=20 with

the number of lists actually sent to the Governor.=20 At

the very least, we would request the number of=20 names

on each list, the number of women on each list,=20 and

the number of lists each individual applicant=20 appeared

on.

We also feel it should be public knowledge as to=20 the

numerical vote on each name which made the final=20 list,

and the names of and [sic] commissioners who did=20 not

vote (and the reason) on any name.

Letter from Barbara Marshall to Kathleen A. Callaghan,=20 Director

of=20 the Office of Information Practices (March 10, = 1992).

DISCUSSION

WHETHER THE COMMISSION IS = AN=20 AGENCY

The UIPA, the State's open records law, applies only to=20 the

public inspection and copying of "government records."=20 Under

the UIPA, the term "[g]overnment record means=20 information

maintained by an agency in written, auditory,=20 visual,

electronic, or other physical form." Haw. Rev. Stat. = =EF=80=A7=20 92F-3

(Supp. 1991) (emphasis added). The term "agency" is defined=20 by

the UIPA as follows:

`Agency' means any unit of government in this=20 State,

any county, or any combination of = counties;

department; institution; board; commission;=20 district;

council; bureau; office; governing authority;=20 other

instrumentality of state or county government; = or

corporation or other establishment owned, operated,=20 or

managed by or on behalf of this State or any=20 county,

but does not include the nonadministrative=20 functions

of the courts of this State.

Haw. Rev. Stat. =EF=80=A7 92F-3 (Supp. 1991) (emphases=20 added).

Ms.=20 Barbara Marshall
March 19, 1992
Page 8

OIP Op. Ltr. No. 92-3

While the UIPA's definition of the term "agency"=20 expressly

includes "commission[s]," = it does=20 not include "the nonadmin-

istrative functions of the courts of this State." Haw.=20 Rev.

Stat. =EF=80=A7 92F-3 (Supp. 1991). The UIPA's legislative=20 history

indicates that the judicial = functions of the=20 State courts were

excluded from the UIPA's coverage "to preserve the=20 current

practice of granting broad access to the records of=20 court

proceedings," and that it was the intention of the=20 Legislature

that the UIPA apply only to the "administrative records" of=20 the

Judiciary. See S. Conf. Comm. Rep. No. 235, 14th Leg.,=20 1988

Reg. Sess., Haw. S.J. 689, 690 (1988); H.R. Conf. Comm. Rep. = No.

112-88, 14th Leg., 1988 Reg. Sess., Haw. H.J. 817, 818=20 (1988).

Because under the State Constitution the Commission=20 is

attached to the Judiciary, we must determine whether=20 the

Commission = exercises a=20 judicial = function.=20 If so, it is excepted

from the UIPA's coverage. See generally, OIP Op. Ltr. No.=20 90-4

(Jan. 29, 1990).

In Richardson v. Koshiba, 693 F.2d 911 (9th Cir. 1982),=20 the

Commission = contended that=20 its functions were judicial in=20 nature

and, therefore, it should enjoy absolute immunity from a=20 civil

claim brought by a former district court judge. In=20 rejecting

the Commission's contention, the U.S. Court of Appeals,=20 Ninth

Circuit reasoned:

Although the Commission = describes its=20 responsi-

bilities in "judicial" = terms, these=20 functions bear

little resemblance to the characteristic of = the

judicial=20 process that gave rise to the recognition of

absolute immunity for judicial = officers:=20 the

adjudication of controversies between adversaries.=20

[Citation omitted.] Rather, these = responsibilities

indicate that the Commission's functions are=20 executive

in nature.

Richardson, 693 F.2d at 914 (emphasis = added).

Based upon the decision of the U.S. Court of Appeals,=20 Ninth

Circuit in the Richardson case, we conclude: (1) that=20 the

Commission does = not=20 exercise a judicial=20 function and, therefore,

it=20 is an "agency" within the meaning of section 92F-3, Hawaii

Revised Statutes, and (2) that the information it maintains=20 in

any physical form constitutes a government record which=20 is

subject to the provisions of the = UIPA.

Ms.=20 Barbara Marshall
March 19, 1992
Page 9

OIP Op. Ltr. No. 92-3

II.

ACCESS TO COMMISSION=20 RECORDS

Under the UIPA, "[e]xcept as provided in section=20 92F-13,

each agency upon request by any person shall make=20 government

records available for inspection and copying during=20 regular

business hours." Haw. Rev. Stat. =EF=80=A7 92F-11(b) (Supp. = 1991).=20

Thus, unless protected from required disclosure by one of=20 the

exceptions set forth by section 92F-13, Hawaii Revised=20 Statutes,

all Commission = records must=20 be made available for public

inspection and copying upon request by any = person.

Under section 92F-13(4), Hawaii Revised = Statutes,=20 agencies

are not required by the UIPA to disclose "[g]overnment=20 records

which, pursuant to state or federal law including an order=20 of

any state or federal court, are protected from disclosure."=20 As

previously stated, article VI, section 4 of the=20 State

Constitution, provides that the Commission's deliberations=20 shall

be=20 confidential. Additionally, article VI, section 4 of = the

State Constitution provides that the Commission's Rules=20 shall

have "the force and effect of law." This leads us to Rule 7=20 of

the Judicial = Section Commission of = Hawaii Rules = ("Commission

Rules"), which provides:

Rule 7. CONFIDENTIALITY.

Under the Constitution of the State of Hawaii,

the commission's proceeding [sic] must = be

confidential. Therefore, all commission=20 records,

proceedings and business, including the names of=20 all

proposed nominees and the names of nominees=20 forwarded

to the appointing authority, shall be confidential=20 and

may not be discussed outside commission=20 meetings,

except among commission = members, or as=20 made necessary

by Rule 10, or Rule 13, or pursuant to Rule = 14.

[Emphases added.]

With respect to the selection of = nominees to=20 be sent to the

appointing authority, Rule 12(C) of the Commission=20 Rules,

provides that "[t]he commission = members shall=20 vote by secret

ballot," and that each member of the Commission = shall vote=20 to

select six qualified nominees for any given judicial=20 office

vacancy unless otherwise provided by the Commission.

Additionally, Rule 5(B) of the Commission = Rules=20 provides:

B. If a commissioner knows of any = personal,

business, or litigious relationship as a party = or

attorney which the commissioner or = another

Ms.=20 Barbara Marshall
March 19, 1992
Page 10

OIP Op. Ltr. No. 92-3

commissioner had with applicant or petitioner=20 (which

refers to a judge who petitions for another term),=20 the

commissioner must report this fact to the commission.

The commission = shall then=20 decide the extent to which

the involved commissioner shall participate in = the

proceedings concerning said applicant or petitioner.=20

In the event that a commissioner does not vote,=20 the

fact that a commissioner did not vote may be=20 announced

publicly.

[Emphasis added.]

The record of the proceedings of the 1978=20 Constitutional

Convention provides guidance concerning the intended scope=20 and

effect of the confidentiality provision of article VI, = section=20 4

of=20 the State Constitution, as well as the intended scope of = the

rulemaking power conferred upon the Commission by=20 this

constitutional provision. The Constitutional=20 Convention's

Committee on Judiciary recommended that the State=20 Constitution

be=20 amended to create a judicial selection commission, and = that

its deliberations be kept confidential. In Standing=20 Committee

Report No. 52, the Committee on Judiciary=20 explained:

One important concern your Committee = addressed

was in regard to the actions of the judicial selection

commission in = the=20 confidentiality of their

deliberations. Confidentiality is necessary = to

encourage and protect those prospective = candidates

The Commission = Rules were=20 revised effective February 14,

1992. However, even under Rule 5(B) of the Commission = rules=20 as

revised, the Commission is = authorized=20 to disclose whether a

commissioner took part in voting upon a nominee. Revised=20 Rule

5(B) of the Commission = Rules=20 provides:

A=20 commissioner must report any personal

professional, business, or legal relationship as = a

party or attorney which the commissioner or=20 another

commissioner has or had with an applicant = or

petitioner to the commission. The = commission=20 shall

then decide the extent to which the = involved

commissioner shall participate in the = proceedings

concerning such applicant or petitioner. = The

commission may = disclose=20 its decision on this issue.

Ms.=20 Barbara Marshall
March 19, 1992
Page 11

OIP Op. Ltr. No. 92-3

who otherwise would not be willing to be considered=20 if

the deliberation process of the commission were = to=20 be

made public.

1=20 Proceedings of the Constitutional Convention of Hawaii=20 of

1978 at 626 (1980) (emphasis added).

Likewise, Committee of the Whole Report No. 10=20 indicates

that it was the intention of the Convention's Committee of=20 the

Whole that the judicial selection = commission's=20 rules establish

the boundaries of the confidentiality provision proposed by=20 the

Convention:

There were several amendments to the = proposed

language in this section which were either=20 withdrawn

or failed to obtain the necessary votes for passage.=20

One of the amendments proposed related to = the

confidentiality of the actions of the judicial

selection=20 commission. After=20 considerable debate the

amendment was withdrawn, with the understanding=20 that

the judicial selection commission = would have=20 power by

way of its own rules to determine its boundaries=20 and

limits on the confidentiality of its = actions.

2=20 Proceedings of the Constitutional Convention of Hawaii of=20 1978

at=20 1015 (1980) (emphasis added).

Our research indicates that constitutional provisions=20 that

delegate rulemaking authority to a state agency are unique.=20

Rather, in the usual case, an administrative agency's=20 rulemaking

authority derives from the Legislature, not from=20 the

constitution. In Guthrie v. Taylor, 185 S.E.2d 193 (N.C.=20 1971),

the court examined whether regulations adopted by a=20 department

of=20 education pursuant to a state constitutional provision = were

valid. The Guthrie court noted that as a general rule=20 the

legislature may not delegate rulemaking power to an=20 agency

without establishing standards to guide the agency's=20 rulemaking,

but the court also noted:

This principle has no application to a = direct

delegation by the people, themselves, in = the

Constitution of the State, of any portion of = their

power, legislative or other. In such case, we = look

only to the Constitution to determine what power=20 has

been delegated. Where, as here, the power to = make

rules and regulations has been delegated to = an

administrative board or agency by the=20 Constitution,

Ms.=20 Barbara Marshall
March 19, 1992
Page 12

OIP Op. Ltr. No. 92-3

itself, the delegation is absolute, except insofar=20 as

it is limited by the Constitution of the State, by=20 the

Constitution of the United States or by = the

Legislature or some other agency, pursuant to=20 power

expressly conferred upon it by the = Constitution.

Guthrie, 185 S.E.2d at 200 (emphasis = added).

The OIP believes that it should refrain from=20 second

guessing the public policy choices of the people's delegates = to

the 1978 Constitutional Convention of the State of Hawaii.=20 The

people's delegates to the 1978 Constitutional=20 Convention

balanced the public interest in the disclosure of=20 the

Commission's deliberations against the Commission's need=20 for

secrecy and, after doing so, recommended that the=20 deliberations

of=20 the Commission be=20 confidential.

The people's delegates also recommended that the Commission

have the power to promulgate rules that have the force=20 and

effect of law. These recommendations were ratified by=20 the

voters of the State of Hawaii. Because = the State=20 Constitution,

as=20 ratified by the people, provides that the = Commission's

deliberations must be confidential, and invests the Commission

with the power to enact rules that have the force and effect = of

law, the OIP is constrained to conclude that Rule 7 of=20 the

Commission = Rules is a=20 State law that protects government records

from disclosure within the meaning of section 92F-13(4), = Hawaii

Revised Statutes.

It is important to recognize that the = OIP

does not have the authority

It is our opinion that an agency rule prohibiting=20 the

disclosure of government records which is adopted pursuant = to=20 a

general legislative delegation of rulemaking power is not=20 a

state law that protects a government record from=20 disclosure

under section 92F-13(4), Hawaii Revised = Statutes.=20 A contrary

conclusion would permit agencies to readily defeat the=20 compre-

hensive legislative scheme established by the UIPA.=20 See

generally, Washington Post Co. v. HHS, 690 F.2d 252, 273=20 (D.C.

Cir. 1982); Society of Professional Journalists v. Sexton,=20 324

S.E.2d 313 (S.C. 1984) (department of health=20 regulation

repugnant to state FOIA law and, therefore, invalid); Cashel = v.

Smith, 324 N.W.2d 336 (Mich. App. 1982). In this opinion,=20 we

merely conclude that a valid and enforceable rule adopted by = an

agency pursuant to an express constitutional delegation of=20 to

Ms.=20 Barbara Marshall
March 19, 1992
Page 13

OIP Op. Ltr. No. 92-3

opine on any question regarding the constitutionality of = Rule=20 7

of=20 the Commission=20 Rules. Thus, whether the scope of Rule 7 is

overly broad is an issue more appropriately within=20 the

jurisdiction of the State Attorney General and the=20 courts.

However, because the Commission's confidentiality rule=20 was

adopted to implement the constitutional protection afforded=20 to

the Commission's deliberations, in our opinion, Rule 7 of=20 the

Commission = Rules is most=20 sensibly interpreted to protect from

disclosure only those Commission = records that=20 would expose the

Commission's deliberations.

There is no basis to believe that the people's delegates=20 to

the 1978 Constitutional Convention intended the=20 State

Constitution to cast a shroud of secrecy over Commission=20 records

that reveal nothing about the Commission's deliberative=20 process.

This conclusion is supported by the text of Rule 7 of=20 the

Commission = Rules, which=20 states that "[u]nder the Constitution of

the State of Hawaii, the = commission's=20 proceeding[s] must be

confidential." [Emphasis added.] In truth, the=20 State

Constitution provides that the Commission's "deliberations=20 shall

be=20 confidential." Haw. Const. art. IV,

=EF=80=A7=20 4 (emphasis added). See also, OIP Op. Ltr. No. 91-22

(Nov. 25, 1991) (State statute establishing the=20 confidentiality

of=20 "all records" of the Civil Rights Commission only = applies=20 to

records

rulemaking power qualifies as a state law that protects=20 govern-

ment records from disclosure under section 92F-13(4), Hawaii

Revised Statutes.

It is a fundamental rule of statutory construction=20 that

departure from the literal construction of a statute=20 or

regulation is justified when such construction would produce = an

absurd or unreasonable result and would clearly be=20 inconsistent

with the purposes and policies of the act in question. 2A=20 N.

Singer, Sutherland Statutory Construction =EF=80=A7 45.13 = (4th ed.=20 rev.

1984); see also State v. Torres, 66 Haw. 281, 286, 660 P.2d=20 522

(1984). In our opinion, interpreting Rule 7 of the Commission

Rules to protect all Commission = records from=20 disclosure would

produce an unreasonable result, insofar as the rule=20 would

protect records that have no connection whatsoever to=20 the

Commission's deliberations, such as administrative records=20 of

the Commission.

Ms.=20 Barbara Marshall
March 19, 1992
Page 14

OIP Op. Ltr. No. 92-3

associated with its investigatory and adjudicative=20 functions,

not its administrative records).

Accordingly, in our opinion, not all Commission = records=20 are

deliberative in character and, thus, not all of its records=20 are

protected from disclosure by Rule 7 of the Commission = Rules.=20

For example, in our opinion, the disclosure of the=20 Commission's

personnel, purchasing, or other administrative records would = not

result in the exposure of the Commission's deliberative=20 process

and, therefore, these records should not fall within=20 the

protections afforded by the Commission's confidentiality = rule.=20

Rather, the disclosure of these Commission = records would=20 be

determined in accordance with the UIPA's=20 provisions.

However, it is the Commission's position that the lists=20 of

not less than six nominees that are hand delivered to=20 the

Governor under article VI, section 3 of the State=20 Constitution

are deliberative in character. For this reason, Rule 7 of=20 the

Commission = Rules=20 expressly provides that "the names of nominees

forwarded to the appointing authority, shall be = confidential."=20

Because the Commission = Rules have the=20 force and effect of law,

and because Rule 7 of the Commission = Rules=20 unambiguously

establishes the confidentiality of the names of=20 nominees

forwarded to the appointing authority, we believe=20 that

Commission = lists=20 delivered to the governor under article VI,

section 3 of the State Constitution are protected=20 from

disclosure by section 92F-13(4), Hawaii Revised=20 Statutes.

On the contrary, however, disclosure of the=20 Commission's

written receipts for delivery of the Commssion's lists=20 of

nominees would not reveal the names of the=20 Commission's

nominees, nor otherwise result in the exposure of=20 the

Commission's deliberations. Because these receipts are=20 not

expressly within the coverage of Rule 7 of the Commission=20 Rules,

and because we believe that these written receipts do not=20 fall

within the intended protection of Rule 7 of the Commission

Rules, we believe the Commission must = make=20 these written

delivery receipts available for public inspection and=20 copying

under the UIPA.

Further, because Rule 12(C) of the Commission=20 Rules

provides that all votes shall be by "secret ballot," under=20 the

UIPA, the Commission is = not=20 required to disclose the votes of

each commissioner. However, because Commission = Rules=20 also

expressly permit the Commission to = disclose=20 whether a

commissioner did not vote in proceedings concerning=20 an

Ms.=20 Barbara Marshall
March 19, 1992
Page 15

OIP Op. Ltr. No. 92-3

applicant, it is our opinion that under the UIPA,=20 this

information should be disclosed to the public upon=20 request.

Because Commission = Rules have the=20 force and effect of law

and expressly provide that the names of nominees forwarded=20 to

the appointing authority shall be confidential, and because=20 we

conclude that rules adopted by the Commission = constitute a=20 state

law that protects records from disclosure under=20 section

92F-13(4), Hawaii Revised = Statutes,=20 we conclude that when

received by the Governor, the Commission's list of not less=20 than

six nominees continues to be protected from disclosure=20 under

section 92F-13(4), Hawaii Revised=20 Statutes.

CONCLUSION

We conclude that the Commission is = an "agency"=20 under the

UIPA, and that any information it maintains in a physical=20 form

constitutes a government record. Under the UIPA, agencies=20 are

not required to disclose "[g]overnment records which=20 are

protected from disclosure by state or federal law." Haw.=20 Rev.

Stat. =EF=80=A7 92F-13(4) (Supp. 1991). It is our opinion = that Rule=20 7

of=20 the Commission=20 Rules, which has the force and effect of law,

and which was promulgated pursuant to an express=20 constitutional

delegation of rulemaking authority, is a State law that=20 protects

records from disclosure under the UIPA. Consequently,=20 we

conclude that under the UIPA, the Commission is = not=20 required to

permit public inspection of lists of individuals nominated=20 to

fill judicial = vacancies under=20 article VI, section 3 of the State

Constitution.

While Rule 7 of the Commission = Rules provides=20 that "all

commission = records" are=20 confidential, we believe that this Rule

is=20 most reasonably construed to protect only those Commission

records that are deliberative in character. In the=20 Commission's

view, lists of nominees it delivers to the Governor=20 are

deliberative in nature and, therefore, the=20 Commission's

confidentiality rule expressly makes confidential the names=20 of

nominees forwarded to the appointing authority. Because Rule = 7

of=20 the Commission=20 Rules has the force and effect of law, and

because under Commission = Rules the=20 names forwarded to the

appointing authority are confidential, we conclude that=20 under

section 92F-13(4), Hawaii Revised = Statutes,=20 the Commission's

list of not less than six nominees to fill judicial=20 vacancies

are government records protected from = dis-

closure by State law.

Ms.=20 Barbara Marshall
March 19, 1992
Page 16

OIP Op. Ltr. No. 92-3

On the contrary, we conclude that the Commission=20 may

publicly disclose whether a commissioner did not vote=20 in

proceedings concerning an applicant, because Commission=20 rules

authorize such a disclosure. Similarly, we conclude that=20 the

Commission's written receipts for delivery of its lists to=20 the

governor should be made available for public inspection=20 and

copying, because such receipts would not reveal the=20 Commission's

deliberative process, nor are they protected from disclosure = by

any other UIPA exception to required public=20 disclosure.

Finally, because we find that Rule 7 of the Commission

Rules is a State law that protects government records=20 from

required disclosure, we conclude that lists of=20 nominees

delivered to the governor by the Commission = continue to=20 be

confidential even after they have been delivered to=20 the

governor. Accordingly, we conclude that under the UIPA=20 the

governor should not make available for public inspection=20 and

copying lists of nominees delivered to the governor by=20 the

Commission = under article=20 VI, section 3 of the State

Constitution.

In closing, we suggest that the Commission=20 carefully

reexamine Rule 7 of the Commission = Rules and the=20 extent to which

it=20 comports with the State constitutional provision = protecting

Commission=20 deliberations.

Very truly yours,

Hugh R. Jones

Staff Attorney

Kathleen A. Callaghan

Director

KAC/HRJ:sc

Honorable John Waihee

Governor, State of Hawaii

Honorable Warren Price, III

Attorney General

C. Michael Hare, Esquire

Chairperson, Judicial Selection Commission

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