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Judicial Watch • Hearing Transcript Judicial Watch v. Namuo

Hearing Transcript Judicial Watch v. Namuo

Hearing Transcript Judicial Watch v. Namuo

Page 1: Hearing Transcript Judicial Watch v. Namuo

Category:Legal Document

Number of Pages:20

Date Created:June 12, 2015

Date Uploaded to the Library:June 15, 2015

Tags:Denied, permission, Thatrs, LILLY, hawaiian, Transcript, honor, Native, hearing, record, Commission, people, government, court


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PERMISSION COPY DENIED, HRS
606.13, etc THE CIRCUIT COURT THE FIRST
STATE TAI
CIRCUIT
JUDICIAL WATCH, TNC.,
Plaintiff
CLYDE h7. NAMUTO and STATE IA]I
NATIVE HAT IAIIAN ROLL COMMTSSION, No.
15-1-00s9
(JHC)
Defendants.
TRANSCRTPT PROCEEDINGS
before the HONORABLE JEANNETTE CASTAGNETTI Judge
Fifth Division, presiding, ednesday, June 2015APPLICATION FOR ORDER INSPECTING PUBLIC
APPEARANCES:
MTCHAEL
LTLLY,
For the Plaintiff
ESQ.
STELLA KAMI ESQ
Deputy Attorney Generaf
For
CLYDE NAMUO AND THE STATE {AII
NATIVE HAWAIIAN ROLL
COMMTSSION
REPORTED BY:
BEAVER CHEANG, CRR, csR-340
OFFICIAL COURT REPORTER
NIKKI
STATE HAWAI]
RECORDS
PERMISSION COPY DENIED. HRS
606.13, etc
***INDEX***
l-0
l_1
t_3
l_B
t_9
Argument Mr. LiIly
Argument Ms.
Kam
Rebuttal
Ruling the Court
PERMISSION COPY DENIED. HRS
606.13, efc
*PROCEEDINGS*** Wednesday,
,June 2015
THE CLERK: Calling No. 15-1-0059, Judicial atch, Inc. versus Clyde Namuo, aI. for application for order allowing nspection public records the State Hawaii Native Hawaiian RolI Commission.
l-0
Appearances, please.
MR. LILLY: Good morning, Your Honor.
Michael Lil1y for the aPPlicant.
THE COURT: Good morning.
MS. KAM: Good morning Your Honor. Stella
behalf
Kam, Deputy Attorney General,
and the Native Hawaiian RolI Commission.
l_8
l_9
C1yde Namuro
Okay. Mr. Li1ly. its your there anything further you ranted
THE COURT:
application.
argue this time?
MR. LILLY: CouPIe things. Irm not
going belabor what weve already submitted. The
State, the Native Hawaiian RoIl Commission does not deny
that its state agency, thereforet
Chapter 92(f) applies the agency. their own admission they donrt deny
that they have lists people who have sJ-gned up.
PERMISSION COPY DENIED, HRS
606.13, etc
They dont deny, their web site states
that three lists from OHA has been transferred
augment that list.
Theyve said their web site that that has over 1-251 000 names, and was interested this
morning. looked their web site, and they have
information block that tells people who are interested signing what information they require, and they
call what information this pre-certified l-ist.
Theyre identifying these lists that they
have, that havent been certified yet
l_1
pre-certification lists, which exactly what weve
1,2
t_3
asked for, and they said each entry this list that
1,4
they have has name, has number that:
Each registrant has been assigned unique identification. the Native Hawaiian RoIl- Commission has lists names, and has
mainta the list.
l_8
t_9 identifying number for each those people. These are lists that are maintained the Native Hawaiian Roll Commission. Under 92(fl were entitled these
documents.
THE COURT:
Okay. what you ant the
list?
MR. LILLY: Pardon
me?
PERMISSION COPY DENIED, HRS
606.1-3. etc
the list?
MR. LILLY: want the list.
THE COURT: Thank You very much.
Okay. Ms. Kam.
MS. KAM: Your Honor, there are
One the enrollment Iist, which
different lists.
contains the people who are deemed qualified under the
statute placed the enroflment 1ist, and then
theres the applicant list, which Mr. Lilly was speaking
1_0 that NHRC did get from OHA. well- people logging
1l- the web site.
UIPA request did not ask for the applicant asked for enrollment list list,
THE COURT: whY haventt You folks
1,4
THE COURT: You want
produced that?
MS. KAM: Because follow exactly what
t-B
the UIPA request asks for, which the enroll-ment list
THE COURT: whY hasnt that been
1-9
produced?
MS. KAM: Thats the record thats not
See, theres the -THE COURT: You have l-ist, though; right?
MS. KAM: have list
completed yet. applicants
THE COURT: why hasnt the list been
produced under the UIPA?
PERMISSION
COPY DENIED, HRS
606.1-3, etc
MS. KAM: Because that theres two
documentsi right? understand therers two.
MS. KAM: the enrollment fist not
completed yet. Some those -THE COURT: Where there requirement
that the list has completed?
MS. KAM: lell
THE COURT: You have list; right?
MS. KAM: elI see, thats the thing.
1_1
Theres bunch peopte database, but dont
know that Irm and cant say, you know, what
1,2 point is, but itrs not completed yet.
Its somewhat akin that UIPA opinion
1,4
letter that cited and Mr. LiIIy attached. The
t_5
minutes that situation the reports were being
1,7
drafted.
Sim Iarly. the enrollment list being compiled, but its not complete yet. the NHRC reluctant up. will become public document. has statute
But this point, kind amorphous because j-ts the database.
THE COURT: whats the definition government record? Doesnrt include efectronic
THE COURT:
PERMTSSTON COPY
DENIED, HRS 606.].3. EIC informat maintained agency?
MS. KAM: does, but this point the record not complete, and when our position that the enrollment list record, and -THE COURT: Thatrs kept the agency
MS. KAM: Right, but its not complete yet. Itrs draft.
THE COURT: Okay. Did you arque was
l-0
draft your opposition PaPer?
MS. KAM: No. argued that the enrollment
1,2
list not completed yet record, government
record, and, therefore, dont even get whether
t_3 its withheld not because doesnt technically exist under the defin tion government record under
1,6
Ihe UTPA.
THE COURT: tfell, what about Mr. Lil1ys
t_B
argument that the web site, keeps saying yours, but the agencyrs web site the NHRCs web site that theres !25r 000 people who are registered, more than
125,000.
MS.
KAM:
Those are the applicants, thats
the applicant list.
THE COURT:
MS.
KAM:
Okay.
They havent been screened Yet
PERMISSION COPY DENIED, HRS
606.13, etc
THE COURT: OkaY yourre making distinguishment then,
between the enrollment list
and the applicant list?
MS. KAM: Correct.
THE COURT: OkaY.
MS. KAM: can give overr guess
think can
give over the applicant list.
THE COURT: OkaY.
MS. KAM: But then again, Irm
1t_
wondering also, now that Irm thinking about it, those
are applicants, and donrt know that they all qualify
1,2
under the statute.
t-0 dont know whether there might some
privacy issues whether guess, whether they
1,4
qualify for the quantum, and also the well not
t_5 quantum, but according the statute, that they need the descendant, rell they need meet the
l_8
21,
ancestry requirements. there may some issues with that, but didnt ask for that. asked for the enrollment
list, which implies that has already passed through
atl these passed through the screening.
Okay. know interrupted you peppering you with some questions, didnt mean break Your train thought.
THE COURT:
PERMTSSTON COPY
argument
MS. KAM: No. think that that Pretty
ETC you want continue with Your
DENIED, HRS 606.13.
much it.
THE COURT: OkaY.
MS. KAM: !le donrt even get the
exceptions under the UIPA because stopped whether
there Ias government record that could disclose.
THE COURT:
Okay, all right
Thank you.
Mr. Li1IY.
MR. LILLY: asked for the list.
even our petition, asked for list afl the
people who have registered with them.
They have said their web site that they
have reg stered over 1-25.000 people. They have these
lists, that what hlant That what !Ie entitled
1,7
to.
l-0
t_1
1,2
1,4
Not only has she not argued oppos tion
any privacy interest, but cited a1I the case law that
show the list names that are kept agency are
not private.
l_8
l-9
Okay. We1I, what about can
you clarify for me, mean their arqumentr theyre
saying therers two l-ists, enrollment list and
applicant. can you shed any light your response
THE COURT:
PERMISSION COPY DENIED, HRS
606.13,
ETC that?
LILLY: From the beginning when
asked for these lists, and thatrs what they had and
thatrs what they said opposition the request that
They havent certified the
theres certified list.
list yet. asked for the enrollment list the people who have signed existed any point
time, and l^Ierent limiting certify the list
l-0 and now theyre making some kind distinct between
11someone whos registered enrofled. There are 125,00O-plus people who have registered. Thats what asked for, and thats what requested this
1,4
application.
THE COURT: OkaY AI1 right. since they registered, they enrolled
1,6 and basicalty means the same thing?
MR. LILLY: Yes, Your Honor.
Thank You.
THE COURT: All right.
t_9
Okay. el1 first let note after
21,
reviewinq Chapter (f.) which Hawaiis Uniform
Information Practices Actr UIPA the Legislature declared that its the policy the State Hawaii that the formation and conduct publ policy, the discussions, deliberations, decisions and action
MR.
PERMISSION COPY DENIED, HRS
606.1-3. etc
1l_ government agencies shal1 conducted openly possible.
And the policy conducting government
business openly possible must tempered
recognition right the people privacy
embodied Section and the Hawaii Constitution
Further, expresslY stated the Legislature UTPA law sha1l applied and construed
promote its underlying purposes and policies, which j-nclude: Promoting the public interest disclosure,
providing for accurate, relevant, timely and complete
l_1
government records, enhancinq government accountability
1,2 through general poticy access government
records, balancing the indiv dual privacy interests and
the public access interest, allowing access unless
l_5 woufd constitute clearly rarranted invas
t-9
personal privacY
NohI looking the motion, and the
arguments that have been raised and also the lack
arguments that have been raised and the record before
clear that NHRC. the Native Hawaiian
RofI Commission, agency defined UIPA
And the UIPA also makes clear that all
government records are open public inspection, unless
access restricted cfosed Iaw. Thats the Court, its
PERMISSION COPY DENIED, HRS
606.13, etc
Section F-11 government record means information maintained agency written, auditory, visual,
electronic other physical form. Thatrs HRS
Section E-3.
The agency this case the Native
Hawaiian Roll Commission. has the burden proof establish justification for non-disclosure, but
UIPA does not require disclosure government records
which, sc1osed, would constitute clearly
l_0 unwarranted invasion personal privacy;
Records that their nature must
t_3
confidential order for the government avoid the
frustration legitimate government function,
government records which, pursuant state federal
t_5 law, including order any state federal court,
are protected from disclosure, and thatts set forth
HRS
Section F-13.
And its imPortant, think and
l-9 signif cant note here that opposing the application for inspection the records, the Native Hawaiian RoII Commission does not make any argument that any the information requested would constitute clearly unwarranted invasion personal privacy that the records must kept confidential avoid
l-B
HRS
PERMISSION COPY DENIED. HRS
606.13, etc
frustration legitimate government functionr that
any state federal law protects the information from
disclosure. Those arguments have not been made the
NHRC.
Here the list names registered for the
rol-I and compiled the Native Hawaiian RoIl Commission government record, insofar as, information
that maintained agency.
Although the executive director the
Native Hawaiian Ro1I Commission declared that the roll
t_0
and, therefore, not complete and
,rra not yet certified
1l_
subject disclosure, this assertion does not comply with the Native Hawaiian RolI Commissions burden
establish sufficient justification for non-disclosure.
The UIPA requires discfosure government
t_5 records, not the sclosure published records.
The clear and unambiguous language the statute, which
1,t
l_8
the Court must follow, requires disclosure informat maintained agency written auditory, visual, electronic other physical form.
Now, Iet also just state, thenr that based that, Court does order that the list record registered names, the list enrollees must disclosed, government record that term
defined under
HRS
Chapter 92(f)
PERMISSION COPY DENIED. HRS
1,2
606.13.
ETC ith respect the second portion,
Juessf the request cause really therers tlro
requests, the list, but then also any documents
regarding discuss for reopening the Mr. Li11y
real1y didnt argue that point.
you
They have produced nutes and have said
that thats the only record that exists. Are you pretty
satisfied with that?
MR. LILLY: The only dissatisfaction have
with that when asked for last year they they didnrt have anything produce, and then they
produced it, what, about two weeks ago.
much
lHE COURT:
OkaY.
LILLY: And nce Your Court
l-5 granting the appl cation any tay werre going ask that submit our prayer for attorney fees based the decl-aration added the order.
MR.
t_8
THE COURT: OkaY.
1_9
MR. LILLY: And far any further
documents, have reason believe there are any
further documents that are responsive that request. given that that
information has been disclosed, not going grant
the petit far the second part your request
goes.
THE COURT: Nolnt
PERMISSION COPY DENIED. HRS
606.13. etc for the request for attorneys fees,
HRS F-1-5 does say that the complainant prevails action brought under Chapter 92(f), the Court
shall assess, against the agency, reasonable attorneys
fees and all other expenses reasonably incurred the
litigation.
So, Mr, Lilly,
you may submit non-hearing
l_0
motion for attorneys fees, aII right, setting forth
affidavit the attorneys fees incurred the
litigation, but file non-hearing motion that
way stays calendared.
1,2
MR. LILLY: understand.
l_3
THE COURT: And
1,4
NHRC opportunity resPond.
MR. LILLY: Thank You.
THE COURT: And ItlI ask you, Mr. T-,il1y,
then that will give the
you could please prepare the order.
LILLY:
MR.
THE COURT:
MS, KAM: Your Honor.
21,
THE COURT: YES.
MS. KAM: Could get clarification,
OkaY.
All right. position there are tlnlo separate
Iists, the applicant list, wel-I the enrollment
Iist. unclear, unclear right now which
because the
NHRCt
PERMISSION COPY DENIED, HRS
606.13, etc
1,6
list being ordered disclosed.
See, because therets group people,
guess, who have gone through the screening process.
THE COURT: Okay.
MS. KAM: Thats what cal-l- the
enrol-Iment list,
and then theres the people who are
just list that they want considered placed the nal 1ist, after after the NHRC
determines whether they have met aII the qualifications
l_0
under the statute.
THE COURT: Isnt this pretty much the same
l_1
thing somebodys asking consj-dered, and
1_3
somebodyts registered, isnt that the same thing?
MS. KAM: No. e11, mean, guess, theytre not enrolled. They wont part the final
They may not meet ro11 that goes that certified.
qualifications.
1_8
THE COURT: Okay.
MS. KAM: theres one Iist,
which
much larger list, which would those who have applied considered, and then theres the group that the
NHRC has screened. and that wilf the certified list
later.
lilell, then, think what hear
Mr. Lilly asking for this list L25,000-plus
THE COURT:
PERMISSION COPY DENIED, HRS
606.1-3. etc
individuals, and thats the list hers requesting. that list what, the enrollees?
MS. KAM: would have check, but
think those might the applicants.
MR. LTLLY: Your Honor, its distinction
without difference. They say they have roll thatrs
over L251000 that they say are registered, and thatrs
what asked. f{hether they want cafl them
enrollees, one are called applicants. Itrs
distinction without difference. want the entire
list.
t_1
Theres people who have applied There are
1,2 people that theyve augmented the list these tist that comprises these 125000. Thatrs what vre brant.
THE COURT: Okay. Those who are considered
1,6 registered.
MR. LILLY: Yes, Your Honor.
MS. KAM: that 125.OOO?
THE COURT: Yes.
MS. KAM: Okay.
THE COURT: Does
MS, KAM:
THE COURT: hat
Mr. Lillyr
that clarify for
you?
YES.
I11 afso note is, maybe,
You want list names
you can clarify.
MR. LILLY: Yes, Your Honor.
PERMISSION COPY DENIED, HRS
606.13, etc
THE COURT: even though the
NHRC
hasnt
argued this point, telephone numbers, dates birth
home
addresses, cetera, its list
MR. LILLY: Yes, Your Honor.
names
Thatrs the only thing that
expectation going produced, because that
informat on, think you would agree, shoufd
personal, confidential and could subject some sort objection that this personal vacy interest
1_0
and forth.
MR, LILLY: not asking for that other
1,2
information,
THE COURT: .Just the list names.
t_3
MS. KAM: Also whether Mr. LillY
t_5
requesting hard-copy format electronic.
THE COURT: believe what sal^ their
1,6 original request was electronic.
MR. LILLY: Electronic okaY.
l_8
THE COURT: But, Mr. Lilly you want
l-9
THE COURT:
clarify?
MR. LILLY: Irm happy with electronic.
21,
happy with hard copy, either waY.
THE COURT: OkaY. $rhatever easiestr would assume, for
NHRC.
PERMISSION CoPY DENIED, HRS 606.1-3,
etc
t-9
LILLY: shall prepare the order?
Itts order granting part, denying part, because
you are denying the second part.
THE COURT: e11, guess the thing is,
they produced the minutes, but they produced the minutes
after the application had been filed.
MR. LILLY: Fine.
THE COURT: The applications granted.
MR. LII,LY: OKay.
THE COURT: But the extent theyrve
1_0
t_1
already produced the minutes, they donrt need reproduce them. Does that clarify it?
MR. LILLY: That clarifies it.
t_3
Thank you, fo1ks.
THE COURT: All right.
1,4
(Proceedings concluded 9:20 a.m.)
1,6
--o0o-1
MR.
STATE HAT{AII
CITY AND COUNTY HONOLULU
NIKKT BEAVER CHEANG, RPR, CRR, CSR-340, Official Court Reporter for the First Circuit Court, State Hawaii, hereby certify that the foregoing
comprises fuII, true and correct transcription
1l_
stenographic notes taken the above-entitfed cause.
t_3
1,4
Dated this Bth day June, 20L5.
OFFTCTAL COURT REPORTER
1,7
/s/ Nikki Beaver
NIKKI
Cheang
BEAVER CHEANG, CRR, CSR-340