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Judicial Watch • Application to Inspect Hawaii Voter Rolls

Application to Inspect Hawaii Voter Rolls

Application to Inspect Hawaii Voter Rolls

Page 1: Application to Inspect Hawaii Voter Rolls

Category:Legal Document

Number of Pages:18

Date Created:February 18, 2015

Date Uploaded to the Library:February 18, 2015

Tags:rolls, Kanaiolowalu, Honolulu, hawaiian, Native, voter, Hawaii, Supreme Court


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Counsel
NING LILLY JONES
MICHAEL LILLY
#1681
707 Richards Street, Suite 700
Honolulu, 96813
Telephone: (808) 528-1100
Facsimile: (808) 531-2415
Attorneys for Applicant
JUDICIAL WATCH, INC. THE CIRCUIT COURT THE FIRST CIRCUIT
STATE HAWAII
JUDICIAL WATCH, INC., foreign
corporation,
Applicant,
CLYDE and STATE
HAWAI`I NATIVE HAWAIIAN ROLL
COMMISSION,
Respondents.
S.P.
(Special Proceedings)
APPLICATION FOR ORDER
ALLOWING INSPECTION PUBLIC
RECORDS THE STATE HAWAI`I
NATIVE HAWAIIAN ROLL COMMISSION;
MEMORANDUM SUPPORT
APPLICATION; EXHIBITS
DECLARATION MICHAEL LILLY;
DECLARATION ROBERT POPPER;
NOTICE HEARING AND CERTIFICATE SERVICE
HEARING:
DATE: ____________________________
TIME: ____________________________
JUDGE: ____________________________
APPLICATION FOR ORDER ALLOWING INSPECTION PUBLIC RECORDS THE STATE HAWAI`I NATIVE HAWAIIAN ROLL COMMISSION
COMES NOW Judicial Watch, Inc. Judicial Watch and requests this Court for
order, pursuant HRS, Section 92F-15, directing the State Hawai`i Native Hawaiian Roll
Commission (the NHRC and its Executive Director, Clyde make available
these public records: Copies the complete enrollment list Native Hawaiians, known the
Kanaiolowalu. See first request August 2014 (Exhibit Copies the enrollment list Native Hawaiians, known the Kanaiolowalu,
existed any one point time following your receipt this request. See second
request September 2014 (Exhibit Copies all documents discussing the decision reopen, about August 2014,
registration for the Kanaiolowalu. See third request September 2014
(Exhibit The list people who have registered with the NHRC.
The basis for this Application that the NHRC and its Executive Director have failed
and refused permit Judicial Watch access the foregoing records which, under Chapter
92F, are government records maintained agency the State written, electronic
other physical form.
Respondents refused for reasons not grounded Chapter 92F and violated the spirit
that statute and the Office Information Practices OIP letter October 2014
(Exhibit which advised NHRC that the statute places the burden the agency establish
justification for the nondisclosure government records Exhibit citing HRS, 92F-(c)
(2012). such, Respondents inaction severely infringed upon the publics right know,
entitling Applicant order directing disclosure the requested records and reimbursement its reasonable attorney fees and costs under 92F-15(d).
This Application based HRS, Chapter 92F, the declarations Michal Lilly and
Robert Popper, the attached Memorandum Law, and Exhibits through
DATED: Honolulu, Hawai`i __________________________.
_______________________________________
MICHAEL LILLY
Attorney for Applicant
JUDICIAL WATCH, INC. THE CIRCUIT COURT THE FIRST CIRCUIT
STATE HAWAII
JUDICIAL WATCH, INC., foreign
corporation,
Applicant,
S.P.
(Special Proceedings)
MEMORANDUM SUPPORT
APPLICATION
CLYDE and STATE
HAWAI`I NATIVE HAWAIIAN ROLL
COMMISSION,
Respondents.
MEMORANDUM SUPPORT APPLICATION
INTRODUCTION. member the public, Judical Watch has right review government records
maintained agency the State written, electronic other physical form.
Specifically, Judicial Watch entitled Order directing Respondent produce the
following records: Copies the complete enrollment list Native Hawaiians, known the
Kanaiolowalu. See first request August 2014 (Exhibit Copies the enrollment list Native Hawaiians, known the Kanaiolowalu,
existed any one point time following your receipt this request. See second
request September 2014 (Exhibit Copies all documents discussing the decision reopen, about August 2014,
registration for the Kanaiolowalu. See third request September 2014
(Exhibit The list people who have registered with the NHRC.
The bases upon which Judicial Watch requests these records member the public
are soundly rooted law. Public scrutiny public records serves to: permit the public decide
whether government action proper; improve government operations; reduce distrust the
public the government; maintain the publics interest open government; and improve the
integrity government operations. the Hawaii Supreme Court noted, the public has legitimate interest knowing
whether our ... laws are being properly enforced governmental agencies Painting
Industry Alm, Hawai 449, 746 P.2d 79, (1987). Conversely, maintaining veil
secrecy over the native Hawaiian roll trivializes the Legislature mandate that [o]pening the
government processes public scrutiny and participation the only viable and reasonable
method protecting the public interest. H.R.S., 92F-2. Indeed, the policy Chapter
92F ensure that the discussions, deliberations, decisions, and action government agencies conducted openly possible. Id. Only through open government can one ensure
governmental accountability. H.R.S., 92F-2(3).
Because [a]ll government records are open public inspection unless access
restricted closed law, (SHOPO Soc. Professional Journalists, Hawai 378, 390,
927 P.2d 386 (1996)), Judicial Watch entitled the requested records and award
attorney fees and costs for bringing this matter court.
II.
STATEMENT FACTS.
The State Hawai`i NHRC was created the State Legislature during the 2011
Legislative Session to, inter alia, prepare and maintain roll native Hawaiians. See Section
Act 195. The five-member commission was placed within the Office Hawaiian Affairs for
administrative purposes only. Id. Members the commission were selected the Governor
Hawai`i follows: selecting the five members from nominations submitted qualified Native
Hawaiians and qualified Native Hawaiian membership organizations, the
governor shall appoint the members follows: One member shall reside the county Hawai One member shall reside the city and county Honolulu; One member shall reside the county Kauai; One member shall reside the county Maui; and One member shall serve at-large.
Id.
The NHRC established its own website: http://www.kanaiolowalu.org/ According its
website, the registration ended over year ago with the exception short special extension
that ended May 2014 and reopening until further notice
The registration commenced July 20, 2012, and ended January 19, 2014.
special extension from March May 2014 was approved the
Commission accommodate Hawaiians wishing sign the roll following
the announcement Fall 2014 election delegates convention, Aha.
Since the election delegates has been pushed back 2015, the Commission
reopened the roll until further notice.
The Home page its website states, February 2015, that 125,631 persons have
registered with the NHRC. Declaration Michael Lilly. Registrants are, any time, able check their registration status clicking where indicated. Id. Registration procedures can found this site: http://www.kanaiolowalu.org/about/procedures/. The website further states: May 30, 2014, the current Kana iolowalu Native Hawaiian Roll stands over
125,000.
Over 80% the Roll comprised residents Hawai`i.
*** July 2012, the first on-line indigenous registry the nation was opened. The
registration campaign known Kana iolowalu.
The registry was open for months, officially closing January 19, 2014. just months registration, over 40,000 Native Hawaiians signed
Kana iolowalu.
87,000 Native Hawaiians were transferred Kana iolowalu from three OHA lists: Kau
Inoa, Hawaiian Registry, and Operation Ohana
http://www.kanaiolowalu.org/news/story/?id=49 Its blog states that since re-opening the
official Roll March 17, 2014, more than 125,631 Native Hawaiians have signed up.
May 1[, 2014], the Roll closed http://kanaiolowalu.tumblr.com/ August 2014, after the Roll had exceeded 125,000 registrants, Judicial Watch
requested that the NHRC provide with the complete enrollment list Native Hawaiians,
known the Kanaiolowalu. See first request August 2014 (Exhibit response, its Executive Director, Mr. refused production the requested
list because its work continuing and the complete enrollment list Native Hawaiians you
requested does not exist this time. See September 2014 letter, Exhibit Exhibit
was transmitted Judicial Watch email from Raynette Suganuma-Carlson the NHRC.
Exhibit Ironically, that email admits that Ms. Suganuma-Carlson was one the
125,000 who registered and ready Holomua. [Sic.]To that extent, Judicial Watch has,
least, one the names the enrollment list. September 2014, Judicial Watch refined its request with two supplemental
requests seeking copies the enrollment list Native Hawaiians, known the
Kanaiolowalu, existed any one point time following your receipt this request
(Exhibit and copies all documents discussing the decision reopen, August
2014, registration for the Kanaiolowalu (Exhibit September 25, 2014, Mr. again refused production the requested
documents because Kanaiolowalu have never ceased and thus there need for
documentation administratively reopen the registration roll and our registration work
ongoing and certified enrollment list Native Hawaiians does not exist this time
Exhibit
Holomua stands for progress improve
Neither constitutes justifiable reason, under the UIPA, deny the requested
government documents.
Judicial Watch subsequently filed appeal the OIP which pending. Popper
Declaration. its letter October 2014 the NHRC, the OIP reiterated that the burden
was the NHRC establish justification for nondiclosure public records. Exhibit also stated that Judicial Watch need not wait for OIP decision its appeal before
filing this Application.
The NHRC responded OIP with letter dated October 16, 2014, which reiterated the
non-sensical bases asserted Judicial Watch for denying its requested documents.
Exhibit
III.
ARGUMENT. THE STATE HAWAI`I NATIVE HAWAIIAN ROLL COMMISSION
CONSTITUTES AGENCY UNDER THE UIPA.
The State Hawai`i Native Hawaiian Roll Commission agency under the
Uniform Information Practices Act UIPA
The UIPA provides that, [e]xcept provided section 92-F-13, each agency upon
request any person shall make government records available for inspection and copying
during regular business hours. Section 92-F11(b). The term agency includes:
[A]ny unit government this State, any county, any combination
counties, department; institution; board; commission; district; council; bureau;
office; governing authority; other instrumentality state county government; corporation other establishment owned, operated, managed
behalf this State any county, but does not include the nonadministrative
functions the courts this State.
Section 92F-3. OIP Op. Ltr. No. 05-03, the OIP concluded that the functionally similar
Hawaiian Sovereignty Advisory Commission was agency:
Similarly, the Commission the present case was created advise the
Legislature issues self-determination and selfgovernance for Hawaiians, and
the Commission was placed administratively within the Office State Planning.
Based upon these factors, and the definition agency provided section
92F-3, Hawaii Revised Statutes, believe that the Commission constitutes
agency for purposes the UIPA.
OIP Op. Ltr. No. 05-03,
Section Act 195 directed that Funding for the Native Hawaiian roll commission
shall provided the office Hawaiian affairs itself state agency.
Accordingly, the State Hawai`i NHRC state agency for purposes the UIPA. THE REQUESTED DOCUMENTS ARE PUBLIC RECORDS WHICH ARE
NOT EXEMPT FROM DISCLOSURE UNDER CHAPTER 92F
The requested documents from NHRC are public records which are not exempt from
disclosure under Chapter 92F. Nor has NHRC articulated rational basis, grounded the UIPA, support its nondisclosure overcome its affirmative burden demonstrate why the requested
documents should not disclosed.
The NHRC does not assert that the requested documents are confidential private
otherwise exempt under any provision the UIPA. Rather, merely quibbles with the words
used the requests. Judicial Watch twice asked for the enrollment list exists along with
documents regarding the reopening registration, while NHRC irrationally responds that
such certified list exists and there need for documentation. Judicial Watch never asked
for certified list just the list exists. also entitled all documents relating the
decision reopen. There certainly such list, its website states that currently has over
125,000 registrants, and such documentation regarding the reopening registration.
The names individual citizens maintained lists held government agencies have
been repeatedly held disclosable under the UIPA. OIP Op. Ltr. No.89-4, the OIP held that
list Homestead applicants were subject public inspection and copying since the applicants
privacy interest was outweighed the public interest disclosure. OIP Op. Ltr. No. 93-5,
OIP held that list individuals who applied for positions with private ambulance company,
successful bidder for emergency medical services, must available for inspection and copying.
Similarly, OIP Op. Ltr. No. 93-1, the Office Hawaiian Affairs was required make
available the name, business address, loan amount, loan purpose and loan status recipients
the Native Hawaiian Revolving Loan Fund: believe that the disclosure the names individuals who are
NHRLP recipients, and the loan amounts, purposes, and statuses would shed
substantial light OHA performance its statutory purposes. Specifically,
one the duties OHA [t] apply for, accept and administer any federal
funds made available allotted under any federal act for native Hawaiians
Hawaiians. Raw. Rev. Stat. 6(a)(8) (1985).
***
Consequently, find that the public interest the disclosure the
names NERLF recipients and the amounts, purposes, and statuses their
NHRLF loans would outweigh the individual recipients privacy interest this
information. Thus, our opinion, the disclosure this information would not
constitute clearly unwarranted invasion personal privacy under section 92F13(1), Hawaii Revised Statutes. Cf. Miami Herald Publishing Co. United States
Small Business Administration, 670 F.2d 610 (5th Cir. 1982); Buffalo Evening
News. Inc. Small Business Administration, 666 Supp. 467 (W.D.N.Y. 1987)
(cases finding that identities individual recipients SBA loans and advances,
and the amounts and statuses the SBA loans and advances received, did not fall
within the clearly unwarranted invasion personal privacy exemption under
the federal Freedom Information Act).
OIP Op. Ltr. No. 93-1, 9-10.2 See also OIP Op. Ltr. No. 91-1 (allowed disclosure lessee
names contained Hawaiian Home Lands Lessee Data File and Lessee Ledger Trial Balance). noteworthy that Section Act 195 required the NHRC report the Legislature
and the Governor the status the preparation the roll
The Native Hawaiian roll commission, cooperation with the office Hawaiian
affairs, shall report the governor and the legislature later than twenty days
prior the convening the regular session 2012, the status the
That opinion also ruled that the Office Hawaiian Affairs was intended assume the status state agency and thus concluded was agency for purposes the UIPA.
preparation roll qualified Native Hawaiians, expenditures related the
responsibilities the Native Hawaiian roll commission, and any concerns
recommendations deemed appropriate the Native Hawaiian roll
commission. previous matter, the OIP noted that where the submission information the State is,
this case, mandatory, its disclosure will not impair the government ability obtain necessary
information the future OIP Op. Ltr. No. 90-21, 11.
The requested documents are public records for which are not exempt from disclosure
the UIPA. UNDER 92F-15(D), JUDICIAL WATCH ENTITLED RECOVER ITS
ATTORNEY FEES AND COSTS FOR HAVING BRING THIS ACTION OBTAIN THE REQUESTED INFORMATION
Under 92F-15(d), Judicial Watch entitled recover its attorney fees and costs for
having bring this action:
(d) the complainant prevails action brought under this section, the
court shall assess against the agency reasonable attorney fees and all other
expenses reasonably incurred the litigation. this case, Judicial Watch requested the documents three letters Exhibits The NHRC denials quibble only with the words used those requests without asserting
single basis grounded UIPA exemption for denial the requested documents. While the
appeal OIP pending, noteworthy that OIP cautioned the NHRC that the burden
them establish justification for nondisclosure public records. Exhibit
NHRC has justifiable excuse for non-compliance. First, had justification
grounded the UIPA, one would have been provided Judicial Watch. None was. Second,
assuming the request involves administrative burden (an excuse not offered NHRC), that
excuse. SHOPO, Hawai 395 [a]dministrative burden does not excuse compliance
Judicial Watch entitled its attorney fees and costs pursuing this matter.
IV.
CONCLUSION.
For the foregoing reasons, Judicial Watch requests that this Court GRANT this
Application and order the following: That Respondents ordered produce the following records:
Copies the complete enrollment list Native Hawaiians, known the
Kanaiolowalu.
Copies the enrollment list Native Hawaiians, known the
Kanaiolowalu, existed any one point time following your receipt
this request.
Copies all documents discussing the decision reopen, about August
2014, registration for the Kanaiolowalu.
The list people who have registered with the NHRC. That Respondents ordered reimburse Judicial Watch reasonable attorney fees
and costs; and That Judicial Watch granted such other relief shall appropriate.
DATED: Honolulu, Hawai`i __________________________.
_______________________________________
MICHAEL LILLY
Attorney for Applicant
JUDICIAL WATCH, INC. THE CIRCUIT COURT THE FIRST CIRCUIT
STATE HAWAII
JUDICIAL WATCH, INC., foreign
corporation,
Applicant,
S.P.
(Special Proceedings)
DECLARATION MICHAEL LILLY
CLYDE and STATE
HAWAI`I NATIVE HAWAIIAN ROLL
COMMISSION,
Respondents.
DECLARATION MICHAEL LILLY MICHAEL LILLY, declare follows: attorney duly licensed practice law the State Hawaii, and partner the law firm Ning, Lilly Jones, attorneys for Judicial Watch Judicial Watch
Applicant herein. make this declaration own personal knowledge and would competent
testify the facts thereto. The NHRC established its own website: http://www.kanaiolowalu.org/ All the
references that website contained the foregoing Application are true and correct quotations
acquired from its website. The Home page its website states, February 2015,
that 125,631 persons have registered with the NHRC. DECLARE UNDER PENALTY LAW THAT THE FOREGOING TRUE AND
CORRECT THE BEST INFORMATION AND BELIEF.
Executed this ___ day _______, 2015, Honolulu, Hawaii.
MICHAEL LILLY THE CIRCUIT COURT THE FIRST CIRCUIT
STATE HAWAII
JUDICIAL WATCH, INC., foreign
corporation,
Applicant,
S.P.
(Special Proceedings)
DECLARATION ROBERT POPPER
CLYDE and STATE
HAWAI`I NATIVE HAWAIIAN ROLL
COMMISSION,
Respondents.
DECLARATION ROBERT POPPER ROBERT POPPER, declare follows: attorney duly licensed practice law the State New York and Senior
Counsel for Judicial Watch Judicial Watch Applicant herein. make this declaration own personal knowledge and would competent
testify the facts thereto. member the public, believe Judicial Watch has absolute right review
government records requested this Application. Exhibit true and correct copy Request Access Public Record dated
August 2014 which requested that the State Hawai`i Native Hawaiian Roll Commission NHRC provide with the complete enrollment list Native Hawaiians, known the
Kanaiolowalu. Exhibit true and correct copy Request Access Public Record dated
September 2014, which requested that the NHRC provide with the enrollment list
Native Hawaiians, known the Kanaiolowalu, existed any one point time following
their receipt the request. Exhibit true and correct copy Request Access Public Record dated
September 2014 which requested that the NHRC provide with all documents
discussing the decision reopen, about August 2014, registration for the Kanaiolowalu. Exhibit true and correct copy letter from Clyde NHRC September 2014. Exhibit true and correct copy email Raynette Suganuma-Carlson
the NHRC dated September 2014 which she transmitted Exhibit me. Exhibit true and correct copy September 25, 2014 letter from Mr. again refusing production the requested documents because Kanaiolowalu
have never ceased and thus there need for documentation administratively reopen the
registration roll and our registration work ongoing and certified enrollment list
Native Hawaiians does not exist this time
10. Judicial Watch subsequently appealed the denial records the Office
Information Practices OIP
11. Exhibit true and corect copy the October 2015 letter from the OIP the
NHRC which was copied me.
12. Exhibit true and correct copy letter dated October 16, 2014 from the
NHRC OIP which was copied me. DECLARE UNDER PENALTY LAW THAT THE FOREGOING TRUE AND
CORRECT THE BEST INFORMATION AND BELIEF.
Executed this ___ day _______, 2015, _______________, _______________.
ROBERT POPPER THE CIRCUIT COURT THE FIRST CIRCUIT
STATE HAWAII
JUDICIAL WATCH, INC., foreign
corporation,
Applicant,
S.P.
(Special Proceedings)
NOTICE HEARING AND CERTIFICATE SERVICE
CLYDE and STATE
HAWAI`I NATIVE HAWAIIAN ROLL
COMMISSION,
Respondents.
NOTICE HEARING
TO:
CLYDE and
STATE HAWAI`I NATIVE HAWAIIAN ROLL COMMISSION
1960 Naio
Honolulu, 96817 and P.O. Box 3201
Honolulu, Hawaii 96801
Donald Amano, Esq.
State Hawaii
Office the Lieutenant Governor
OFFICE INFORMATION PRACTICES
No. Capitol District Building
250 South Hotel Street, Suite 107
Honolulu, Hawaii 96813
Russell Suzuki, Esq.
Attorney General Hawai`i
425 Queen Street
Honolulu, Hawai`i 96813
NOTICE HEREBY GIVEN that the APPLICATION FOR ORDER ALLOWING
INSPECTION PUBLIC RECORDS THE STATE HAWAI`I NATIVE HAWAIIAN
ROLL COMMISSION shall come for hearing before the Honorable ____________________,
Judge the above-entitled Court, his/her courtroom the 4th floor, 777 Punchbowl Street,
Kaahumanu Building, Honolulu, Hawaii, ___________________, 2015, ______ __.m. soon thereafter counsel can heard.
DATED: Honolulu, Hawai`i __________________________.
_______________________________________
MICHAEL LILLY
Attorney for Applicant
JUDICIAL WATCH, INC.
CERTIFICATE SERVICE
The undersigned hereby certifies that copy the foregoing document will served
the above-identified parties their respective addresses depositing the same the United
States first-class mail, postage prepaid ______________________.
DATED: Honolulu, Hawai`i __________________________.
_______________________________________
MICHAEL LILLY
Attorney for Applicant
JUDICIAL WATCH, INC.