OIP to OHA — Again: Your Employees Are Public
Hawaii’s open records agency may have gotten a new director in the past year. But the agency’s opinion on whether employees of the Office of Hawaiian Affairs are public workers — and subject to public disclosure laws — has not changed.
“There are no grounds for reconsideration,” wrote Linden Joesting, staff attorney for Hawaii’s Office of Information Practices. An earlier opinion on the matter stands: OHA employees are government workers whose salary information is subject to public records law.
In response to an open records request from Civil Beat, OHA asked Hawaii’s Office of Information Practices to again weigh in on whether its employees should be considered “public employees” because the bulk of its revenue comes from ceded lands, which it says are not “public funds.”
OHA made the same request last year and was told that it was not exempt from the law.
“Essentially their position has not changed, which would mean that … the reasons we asked them for another review didn’t hold any water from their point of view,” OHA General Counsel Ernest Kimoto told Civil Beat.
“It is still important to us. You’ll notice that in the lists we sent, I have segregated the trust-funded and general-funded (employees),” he said.
The bulk of OHA’s money comes from revenues from ceded lands, which are held in trust for the benefit of Native Hawaiians. The agency also gets funding from the state’s general fund and from the federal government.
Even OHA employees who are “totally funded” by trust funds are also fully eligible to draw state health-care benefits and participate in the state pension fund. The OHA board is also elected by all Hawaii voters.
Last year, OHA said it had 145 employees, with 62 of those workers paid for with trust funds. This year, lists provided by OHA and marked “confidential” show that the agency has 150 employees — 93 are paid for with trust funds while 57 are supported by general funds.
In a letter dated Aug. 30, OIP staff attorney Linden Joesting wrote:
“You asked OIP to reconsider if all Office of Hawaiian Affairs’ (OHA) employee salary information was a public record. OIP will reconsider a prior opinion when there is: (1) a change in the law, (2) a change in the facts, or (3) other compelling circumstances since the date of the prior opinion. The prior opinion was dated November 3, 2010.
“Could you please identify which of these three areas have changed and how the changes impact OIP’s prior determination?”
A subsequent letter dated Sept. 21 reads:
“Having not heard back from you, we conclude that there are no grounds for reconsideration.”
Last year, acting director Cathy Takase said in her Nov. 3, 2010, letter that there isn’t “any indication that our Legislature intended to make a distinction among government agency employees based upon an agency’s source of funding for its payroll.”
She concluded her letter saying, “OIP believes that the phrase ’employees of the agency’ is not ambiguous, and that its common and ordinary meaning includes all (emphasis added by OIP) individuals employed by the agency without regard to what funds are used to pay their salaries. This meaning is consistent with the purposes and policies of the (Uniform Information Practices Act). See HRS 92F-2.”…
Takase made clear: “OHA is a government agency, its employees are ’employees of the agency’ whose salary information is thus subject to disclosure under HRS 92F-12.”
Editor’s note: An article on the salaries will be forthcoming.
