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Judicial Watch • REPLY to App to Allow Inspection of Public Records

REPLY to App to Allow Inspection of Public Records

REPLY to App to Allow Inspection of Public Records

Page 1: REPLY to App to Allow Inspection of Public Records

Category:Legal Document

Number of Pages:21

Date Created:May 29, 2015

Date Uploaded to the Library:June 04, 2015

Tags:Costa, Kanaiolowalu, LILLY, Sunshine, inspection, watchs, agenda, App, Hawaiians, Respondents, Native, application, Reply, notice, Hawaii, 2015, Commission, request, committee, records, IRS


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Ti,til l?*,n iT,Of Corursel
NING LILLY JONES
MICFIAEL
ftTS
LILLY
f.Tiiy?9
Jr+ 681
707 Richards Street, Suite 700
Honolulu, 96813
KUBO
Telephone: (808) 528-l 100
Facsimile: (808) -2415
Attorney for Applicant
.IUDICIAL WATCI-I, INC THE CIRCUIT COURT
TI_IE FIRST
CIRCUIT
STATE HAWAII
JUDICiAL WATCH, INC.,
foreign
s.P. rs-1-00s9 (JHC)
(Special Proceedings)
corporation,
Applicant,
CLYDE MUO, ANd STATE
HAWAII NATIVE HAWAIIAN ROLL
COMMISSION,
REPLY SUPPORT APPLICATION
FOR ORDER ALLOWING INSPECTION PUBLIC RECORDS THE STATE
HAWAII NATIVE HAWAIIAN ROLL
COMMISSION FILED FEBRUARY 18,
2015; DECLARATON MICiIAEL
LLLY; EXHIBITS ,,I, ..J,; CERTIFICATE SERVICE
Respondents
I]E,ARING:
DATE:
June 3,2015
TIME: 9:00 a.m.
JUDGE: Hon. Jeannette Castagnetti
REPLY SUPPORT APPLICATION FOR ORDER ALLOWING
INSPECTION PUBLIC RECORDS THE STATE HAWAII
NATIVE HAWAIIAN ROLL COMMISSION FILED FEBRUARY 18.2015
INTRODUCTION. February 18, 2015, Judicial Watch, Inc. (Judicial Watch) filed its Application for Order
Allowing Inspection Public Records the State Flawaii Native Hawaiian Roll
Commission (Application). May 26,2015, Respondents filed Respondents Memorandum Opposition that
application (Resp. Memo), along with supporting declaration and exhibits.l member the public, Judicial Watch has compelling right review the
requested government records. Fufther, the Uniform Information Practices Act
(UIPA)
places the burden the agency establish justification for the nondisclosure government
records. HRS 92F-15(c). Consequently, the Native Hawaiian Rolls Commission (NHRC)
has the burden establish that exception 92F-13 allows withhold the requested
records.
Because the NHRC has failed meet that burden, Judicial Watchs Application must granted.
II.
ARGUMENT.
RESPONDENTS REL,IANCE WORD GAME WITHOT,D
WRITTEN RECORDS TI{EY ADMIT HAVING, SHOULD
REJECTED.
Judicial Watchs September 5,2014 request asked the NHRC for [t]he enrollment list Native Hawaiians, known
the Kanaiolowalu, existed any one point time
following your receipt this Lequest. Application, Ex.
Respondents opposition repeats the argument they previously made denying the
request. They maintain that, because the roll has not yet been completed and certified and
While Respondents memorandum and supporting documents were filed May 26,2015,
neither Judicial Watch nor its counsel received those documents that day. fact, they were
served U.S. mail. See Resp. Memo, Certificate Service. Respondents well knew,
Judicial Watchs reply was due three days later, May 29,2015, and Judicial Watch lost day
contacting Respondents counsel and ultimately securing liand delivery its filing. Acting
tliis way abridge Judicial Watchs time reply unprofessional and greatly inconvenienced
counsel who had shortened time prepare their reply. result, respectfully request that
the Court sanction Respondents striking their memorandum pursuant the Courts inherent
powers under HRS 603-21.9(6).
does not yet exist, the NFIRC does not maintain government record that responsive
Judicial Watchs request. Resp. Memo Respondents make this argument despite the
fact that enrollment list conceded exist and contain over 125,000 names, including
that the NHRC employee who submitted declaration support Respondents.
Application at3-41, Resp. Memo, Declaration Raynette Suganama-Carlson, dated May 26,
2015.
Respondents emphasize particular that enrollment list has been certif,red. They
assert tliat Judicial Watch asked
for the Kanaiolowalu, the certified roll qualified
Native Hawaiians, and fufther assert that the sole purpose the NHRC compile and
certify the roll qualified Native Hawaiians. Resp. Memo citing HRS 10H-3.
Respondents also argue, without any supporting citations, that
fu]ntil the roll completed,
the NHRC not oblisated nr-rblish nursuant onen records recuest under UIPA.
Resp. Memo,
Every part Respondents argument factually legally wrong. begin with,
Judicial Watch never any time qskedfor certrrted enrollment list (or even used the
word). Moreover, the Kanaiolowalu not defined HRS 10H-3 (or elsewhere)
cer1ified list. And, contrary Respondents assertion, HRS 10H-3 does not set forth
single, sole purpose for the NHRC, but charges with, among other things, [p]reparing and
maintaining enrollment list qualified Native Hawaiians, well the task
fc]ertifying that list. HRS 10H-3(a), (b). Judicial Watch obviously seeking the
enrollment list 125,000 names
has prepared and maintained
including that Ms. Suganama-Carlson
date. Such request
that the NHRC
for the records maintained the NI{RC
sweeps broadly and includes any information controlled the NHRC, whethel not nal certified list. See Nuuanu Valley Assn City County Honolulu, l19l-law. 90,
194 P.3d
(2008) (Hawaiis legislature has indicated intent base the UIPA the UIPC the National Conference Commissioners Unifonn State Laws.
Kaapuv. AlohaTower Dett. Corp.,74Haw.365,387-88,846 P.2d882,891-92 (1993)
(interpreting Sen. Stand. Comm. Rep. No. 2580, 1988 Senate Joumal, 1093-95). The
UIPC def,rnes the word maintain mean hold, possess, preserve, retain, store
administratively control.Unif. Info. Practices Code (UIPC) 1-105. The commentary
suggests that the word maintain sweep broadly possible.
possessed controlled any way agency.
The fact that the NHRC
will includes information
Id. cmt.).
one day formally publish certified enrollment list has
nothing with its obligations produce the current, uncertified enrollment list response valid request under l-Iawaiis open records laws.
All
government records are open
public inspection unless access restricted closed law. HRS 92F-I1(a). The burden the NI-IRC justify its nondisclosure government records citing and establishing exception HRS 92F-13. Respondents have failed so.
Respondents cite OIP Op. Ltr. No. 03-08 (June 18, 2003), but the facts that case are
completely different from the facts here. Resp. Memo that case, the Subdivision
Committee the Kauai Planning Commission met and voted zoning permits and
subdivision applications, and recorded its votes writing, immediately prior the meeting
the full commission. member the public complained that, under the Sunshine Law,
Part FIRS which not issue here
these materials should have been rnade
available the time agenda was posted, which was six days prior the cornmissions
hearing. second complaint was that these materials should have been made available under
the UIPA. The OIP determined that there was violation the Sunshine Law variety grounds peculiar that statute. See Exhibit OIP Op. Ltr. No. 03-08 3-5.
The OiP
also noted that the UIPA was not violated because, the time the agenda was posted six days
prior the hearing, the Subdivision Committee had not met voted created any written
records. Id. Ihe records sought that case literally did not exist the time they were
requested. contrast, the written records relating the 125,000-plus registrants the NI-{RCs
enrollment list Native Hawaiians are conceded exist right now. The NI-IRC lawfully
required produce those records response Judicial Watchs request. hnal matter, note that the NHRCs interpretation, pursuant which
document does not exist not certified complete, word game that contrary common sense. document, record, list exists even though the agency that produced
managed not, some technical
sense,
finished with
it. agencies
actually could
withhold any document that they assert not complete done, then agencies will
constantly make that claim, effectively eviscerating Hawaiis open records laws.
Respondents argument should rejected.
THERE STRONG PUBLIC INTEREST MANDATING THE
RELEASE THE NAMES THE ENROLLMENT LIST
NATIVE HAWAIIANS.
Although only some 40,000 Native Hawaiians are enrolled its list, the NHRC, its
own admission, artificially boosted that number 87,000 transferring names from three
Office l-lawaiian Affairs lists: Kau Inoa, Hawaiian Registry, and Operation Ohana. See
http://www.kanaiolowalu.org/news/story/?id:491Declaration Michael
Lilly. Judicial
Watch respectfully requests that this Court take judicial notice this state agency web site
pursuant Rule
20l,Ifawaii Rules Evidence.2 might expected given this tactic, registrants were placed the enrollment list
without their knowledge consent. For example, Robert Freitas found his name both the
Kau Inoa and Kanaiolowalu lists without having signed for either. See Exhibit
Declaration Robert Freitas, Jr., dated }j4ay 27,2015, Both and Mr. Irrietas have good
reason believe that there are many tens thousands other registrants who were placed
that list without being informed the fact.
Judicial Watch not the only member the public questioning the propriety the
conduct NHRC departing from the Legislatures directive transferring names from
existing OHA list Kanaiiolowalu without asking permission first. Free Hawaii
production the Koani Foundation, l{awaii Genelal Domestic Partnership dedicated
Kanaka Hawaii Maoli (native Hawaiians) and multi-ethnic supporters ... promote unity
through education and capacity building. See
http:llkoanifoundation.org/Mission_o/o26_Purpose.html. The Court also respectfully requested take judicial notice this web site.3
See Coleman Dretke, 409 F.3d 665, 667 (5th Cir. 2005) (fail[ing] see any merit
objection appellate court taking judicial notice the contents state agencys website);
Dulaney Unfted States,472F. Supp. 1085, 1086 (S.D. Ill. 2006) (taking judicial notice
the contents the website for the U.S. Department Veterans Affairs, and citing other cases
which courls have done the same); United States rel. Dingle BioPort Corp.,270 Supp.
968,972 (W.D. Mich. 2003) (collecting cases for the proposition that government documents are
generally subject judicial notice congressional documents and public records and
government documents available from reliable sources the Internet). not uncommon for courts take judicial notice factual information found the world
wide web. OToole Northrop Grumman Corp., 499 F.3d 7218, 1224 (lOth Cir. 2007), quoted
with approval in, inter alia,Juniper Nelworks, Inc. Shipley,394F. App* 713,713 (Fed. Cir.
2010) andJeandronv. Bd. Regents Univ. Sys. Md.,510 Fed. Appx 223,227 (4th Cir.
2013).See,e.g., Magnoniv. Smith Laquercia, LLP,70l Srpp.2d497,501 (S.D.N.Y.2010)
The Koani Foundation produced online video blogspot known Free Hawaii TV. Its
partner and spokesman Ehu Kekahu Cardwell appears these videos issues irnporlant
Native Flawaiians. blogspot entitled Did They Steal Your Name, Cardwell questioned the
NHRC padding its supposed roll thousands names people who never consented being
included the roll. https://www.youtube.com/watch?v:_WWrVSp4qWM. This shows that
even Native i-Iawaiians seriously question the propriety transferring names the Native
Hawaiian Roll without the consent the person involved. There strong public interest
ensuring that the Legislative purpose stated Act 195 properly carried out.
JUDICIAL ryATCH ENTITLED RECOVER ITS ATTORNEYS
FEES AND COSTS FOR HAVING BRING THIS ACTION. set forth above and the original application, Judicial Watch requested government
records subject UIPA and not covered any exception (see HRS 92F-1 1,92F-13) and
properly directed that request agency, that term defined law (see HRS 92F-3).
The NHRCs failure produce requested documents means that Judicial Watch entitled
recover attorneys fees and expenses reasonably incurred litigation. I-IRS 92F-15(d). fact, Judicial Watch directed two requests the NHRC. The first request, discussed
above, asked for the Native Hawaiian enrollment
list. Application, Ex. Judicial Watch
entitled the attorneys fees and expenses reasonably incurred obtaining that list.
The second request sought documents concerning the decision reopen, about
August 2014, registration for the Kanaiolowalu. Application, Ex. This request was denied September 25,20l4,letter Judicial Watch from Clyde muo, Executive Director the
NHRC. Application, Ex.
fiudicially-noticing brand name private web site); Patsys ltalian Restaurant, Inc. Ilanas,
575 Supp. 427, 443, (E.D.N.Y. 2008) (lt generally proper take judicial notice articles and Web sites published the Internet).
However, the possibility producing documents responsive the second request was
raised Mr. Namuo October 16, 2014,letter OIP response Judicial Watchs
appeal. Application, Ex. (Judicial Watch was not served with that letter but subsequently
obtained copy.) Notwithstanding the apparent concession that letter, Judicial Watch did not
receive any documents responsive its second request prior the commencement this
action. May 19,2015
about eight months after the NHRC denied Judicial Watchs second
request and about three rnonths after Judicial Watch filed its application commencing this action
the NHRC produced single document response Judicial Watchs second request. Resp.
Memo, Ex.
This tardy production should not any way diminish the extent the attomeys
fees and expenses that Judicial V/atch had expend order obtain documents responsive
its second request.
ilI.
CONCLUSION.
For the foregoing reasons, Judicial Watch requests that this Court GRANT this
Application and order the following:
That espondents 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 fior the Kanaiolowalu.
The list people who have registered with the NI{RC.
That Respondents ordeled reimburse Judicial Watchs reasonable attorney fees
and costs; and
That Judicial Watclr granted such other relief shall appropriate.
DATED: Honolulu, I-lawaii,
9.q !l)
MICHAEL LILLY
Attorney fol Applicant
JUDICIAL WATCH, INC THE CIRCUIT COURT THE FIRST CIRCUIT
STATE HAWAII
JUDICIAL WATCI-I, INC.,
s.P. l5-1-0059 (JHC)
(Special Proceedings) foreign
corporation,
Applicant,
DECLARATION MICHAEL LILLY
CLYDE V/. MU,O, and STATE
FIAWAII NATIVE HAV/AIIAN ROLL
COMMISSION,
Respondents
TION MICHAEL MICHAEL LILLY, declare follows: attorney duly licensed practice law the State Hawaii, and partner the law firm Ning, Lilly Jottes, attorneys for Judicial Watch (Judicial Watch),
Applicant herein. make this declaration rny own personal knowledge and would competent
testify the facts thereto.
http://www.kanaiolowalu.org/news/story/?id:49
the NHRCs which atrue and coruect web address for admits that the NHRC only signed some 40,000 Native Hawaiians
and then artif cially boosted that numbel 87,000 transferring names from three Office
Ilawaiian Affairs lists Kau Inoa, Hawaiian Registry, and Operation.
All the references the Koani Foundation
and its web site contained the foregoing
Reply are true and correct information acquiled fionl its website. DECI-ARE LINDER PE,NALTY LAW THAT THE FOREGOING TRUE ANI)
CORRECT THE BEST OFMY INFORMATION AND BELIEF.
Executed
this{day May, 2015,at Honoiulu, Hawaii.
MICHAEL LILLY
I,INf)/T IJNT I,E
ai,11F
.Ij fES f.. ION JR.
LIISLIE II- rlo
i.l utrlt v-lRlL rltr
DiRECTOR
SIATE HA\,IAII
OFFICF) LlBu*lllN GOVI RNIOR
OFI INFO IATION PRACTI CES
iVO. O}f I)ISTRTCT BUi ,DING
250 soulH HorEL SrrrEET, stitfE I07
HONOI-tll-ti, IIhW 968 l,EIl ONE: 808-586-1.i00 B0B-58G-14
M-arL: !rii $4*Ll! BsI,Ili:
..r a{,s-r.t:i .i...1,9, /]J!,,.
June 18, 2003
The Honorable Ian Costa
Director Planning
I)epartment Plann ng, County Kauai
4444R Street, Suite A413
Lihue, Hawa 96766- 1326
Re: Kariai Plann Comurission and Sub ivision Committee Meetings
Dear Mr. Costa: response yor request the Offtce Information Pracfices
(OIP) dated Nlay 2003 for opinion the above-referenced matter.
ISSUE PRESENTED
Whether writte:r reports the Subdivision Commif,iee (Comrrrittee) ofthe
Kauai Planning Commission (Commission) containing the Committees
recomrnerldations the Commission subdivisjon applications must avarlabLe the public the time that the Comrnission provides notice the pub .ic rneeting which the subdjvision applications are considered.
BRIT]F ANSWER
No. The :.ine part chapter 92, Hawaii Revised Statutes,
uot require that reports pr:e ;ared subcommittees boards for considerafion tire full boarcl available for public rnspection ihe time the boards notice and
agenda for pubL meet are filed.
doe*s
The l-Iniform lnfblmation Practices Act (Nfodified), chapter 92F, Harvari
Revised Sta utes (UIPi), requires that agency records tirat are open for: public
inspection and cop)ing available upon reque.st, thus the rvritten retriorts .should
OIP Op, Ltr. No. 08-08
ffiKg$$ffiflT
Tire Honorable Ian Cos
June I8,2003 r.de public once rey ale r;om eted. Harv. Rer Sl.at. 92F-11(b) (1993). the
repr:rts ale not vet existence Lhe time agencla posted, they need not
created:.ir order satisfy lecoltl lec ue*st. IIau. Rev. Stat. 92FI1(c) (I993).
lhe Kauai Planning Commission conducts hearings and approves certarn
tvpes zoning permit-s anrl sub ivision applications. The Commission meets twice month. The Comnri.s-sion.s Subclivision Committee meets one hour before eaclr
Oommission meeting l:evrerv subdivrsion cations that will considered
the Commi-ssion.
lhe following language example r,vhat the Committee rvould discuss meefing, based the sample agenda that you provided:
NFirvT
IIUSIN
lentative Subdivision Action:
{.
5-2003.39 Grovc
Fann Cornpany
l?-lot Subdivision, TMK: 3-3- 16.$0
Pr:hi, Lihue. [{aua Committee meetings, members vote each sub ivision application the
agenda. The Comrnittees otes and recommendations are memorialized report required Planni-ng Commission Rules Practice and Procedu 1-2- 13.
blank report form entitlecl Subdivision Committee Report No. was provided for
levierv. This fonn does not contain detailed lforrnation. Instead, lists each
tentative subdivision action arrd then the mmiLtees recornmendation alcl vote
for each recorded. the ad,journment each Cornrrrittee treeting, staffprepares
the written report, sunmarv the Cornmiftees action verbally reported the Commission its meeting immecl ately subsequent the Committee meetirrg. These
eco lrnerldations are verbal- because the uritten reports rnay not vet completed the tinre application discussed the Commission, Comr rissions rules not require that the Comrnittees reports written form the time
Committee recommendations are made the Commission. The Comrnission then otes the subdivision applications.
You provicl.ed sample Commission agenda fvom its April 22, 2003 meetlng
shich included the fbllowing language:
OIP Op. Ltr. No.03-08
The l{onorable Ian Costa
Jr-rne 18, 2003 SUBDIVISiON
Aot sub ivjs tters listr:d ther .Sul-;rlir.jsion Cotnmitte Agend* lach ed)
The Llommission agenda dirl not inclucle descripl;ion the subdir,tsion matters consiclered the Commjssion. Rather, the Commissious SLTBDIVISION
agenda item referred the Comrnittees agenda for tlte same day regar ing
subdivj.sion applications and attached the Cornmittee agenda. The applications
Listed the Comrnittee agenda were available for public ilspection the time
both agendas were rosted. Recorcls relafing particular application were made
available the public once recejved the Departmenl Planning. The public
a]Jowed teslif5 agenc items both Corumission ancL Committee meetings. member the public complaineil the Kauai Department Pianning
that the Comrnissions cu.rrent practice includjng its agenda items for which
the Cornmittees writterl repo.rts are not available r,rolates the Sunshine Law,
,{ccording the merntier t}re public, the written reports the Committee should made publicly availa rle the time the Commission agenda filed, which six
days prior w:hen the Cornmission takes ion it. 56q note, woul.cl
require the Committee meet one seek prior the Commission order for the
report available the fime the Commission agenda posted.
DISCUSSTON
SUNSHINE LA4/
The Sunshine Law governs the manner ,,vhich State and county boardsr
must conduct their meetings and intended make government more accountable the public mandating that board meetingss public most instances.s The
Sunshine Law a-lso drctates the nanner which boarcl must give notice its
mee ings. More speci-fi.caLly, the Sunshine Law states with regard norice
meetings:
Board means any agenc-v, board, cornnri.ssicn, authouty, oornmittee the orits
political subilivisions rvlrjclr cre rLed corrst,ilufion, sl, rtuLe rule. erecutiv ord rr. have supcrvrsion,
cuntrol, jurisrliction arhisoty llo ,,Gro:or- ;ccilic mattr. ancl which required conduct mee ugs andt