Monday, October 27, 2008

When Holding is not "Maintaining"

Nu'uanu Valley Association v. City and County of HNL (HSC October 24, 2008)

Background. A landowner sought to develop approximately 50 acres of steep mountainside property in upper Nu'uanu Valley. The landowner submitted an application to the City's Dept. of Planning for approval of developing nine residential lots. The Nu'uanu Valley Assocation, a non-profit organization, requested from the City copies and inspection of all comments and engineering reports pertaining to the proposed subdivision. The City explained that its comments on submitted reports are sent back to the applicant. Nothing becomes available until they have been "accepted" by the City. After the City "accepted" a drainage report, it was made available for copying. The NVA sued the City alleging violations of the Uniform Information Practices Act (HRS chapter 92F) and the Hawai'i Environmental Policy Act (HRS ch. 343) because an environmental assessment was not done. The City prevailed with a summary judgment.

Not a Gov't Record Because it was not "Maintained." Generally, "[a]ll government records are open to public inspection[]" and "an agency upon request by any person shall make government records available for inspection and copying[.]" HRS § 92F-11. A "government record" means information "maintained by an agency" in any physical form. HRS § 92F-3. The NVA claimed that the initial engineering report with its comments from the City became a "government record" the moment it was received from the City. Thus, it was open to copying and inspection before it was "accepted." Although the HSC acknowledged that the UIPA was based on a uniform code that defined "maintain" to include just about anything the agency held in its custody, it rejected NVA's contention.

Hawai'i's UIPA does not impose a duty on the agency to "maintain records." SHOPO v. Soc'y of Prof'l Journalists-Univ. of Hawai'i Chapter, 83 Hawai'i 387, 400 n. 8, 927 P.2d 386, 392 n. 8 (1996). Instead, it requires the agency to provide access only to those government records that are actually maintained. Id. at 401, 927 P.2d at 393. Thus, according to the HSC, if HRS § 92F-11 is interpreted so that an agency "maintains" a record the moment it receives it, then the statute would be imposing an affirmative obligation. This interpretation, according to the HSC, cannot stand. The HSC concluded that the question hinged on whether the City chose to retain possession or control of the record. In this case, the HSC pointed out that an unaccepted reports were immediately returned to the landowner. Accepted reports were filed and made available to the public. This, explained the HSC, clearly demonstrated that the accepted reports were chosen by the City to be in its custody and were thus "maintained" records. Thus, the unaccepted reports with comments from the City were not "maintained" and thus not "government records" under the UIPA.

The Subtle Distinction Between Maintaining and the duty to Grant Access: the Agency has a Choice? The HSC rejected an interpretation that any government record kept in the custody of an agency was "maintained." The HSC explained that the UIPA did not impose a duty to hold any records, but rather grant access to those records it happens to have. But is it possible for an agency to have a record without imposing this duty to hold it? Apparently not. And so an agency has a choice to keep a record. When it does, then it is "maintaining" that document.

The City's Gotta Follow its own Rules. The City may have been in compliance with the UIPA, but its own rules proved to be a stumbling block. "Department files are public records and may be examined upon request. Permit files include applications, director's reports, maps and drawings, written testimony, correspondence, tape recordings or written minutes of proceedings, orders, and all other pertinent documents." DPP Rules § 1-2(b)(2). Moreover, the City must "maintain and update a master file of building permit applications, subdivision applications, land use permits, and land use designations on Oahu." DPP Rules § 1-3(b)(2). The HSC held that under these rules, the unaccepted reports would be part of the landowner's "file," which in turn could be examined upon request.

And the Rules Themselves must be Known. Furthermore, agencies must make available for public inspection all rules and policies formulated, adopted, or used by the agency in discharge of its functions. HRS § 91-2(a)(3). No agency rule shall be valid unless it is published, available for public inspection, or until a person has actual knowledge of that rule. HRS § 91-2(b). The HSC held that the procedures of the City's file maintenance were agency "rules" under HRS chapter 91. It also noted that the record does not show any evidence that the NVA was aware of these rules before making the request. Nor did the City argue that the rules were published or made available to the public. Thus, the HSC held that the rules were could not be invoked against the NVA pursuant to HAPA.

No Construction, no use, no HEPA. HEPA applies to certain governmental actions. In this case, the NVA argued that HEPA applied because the approval of the drainage plans and other measures that crossed over State lands. Under HEPA, "an environmental assessment shall be required for actions that . . . [p]ropose the use of state or county lands[.]" HRS § 343-5(a)(1). However, when the proposed action has "minimal or no significant effects" no assessment is necessary. HRS § 343-6(a)(7). The proposed use in this case was the connecting of the landowner's sewer lines to the City's lines. The HSC declined to apply the plain and ordinary meaning of "use" because it was inconsistent with the stated purpose of HEPA. See HRS § 343-1. Instead, the HSC held that the drain was not a "use" because "the evidence indicate[d] that [the landlord's] drainage and sewer lines merely connect to [another system] and existing county lines without requiring construction or tunneling beneath state or county lines." HRS § 343-1; Sierra Club v. Office of Planning, State of Hawai'i, 109 Hawai'i 411, 415-16, 126 P.3d 1098, 1102-03 (2006); Citizens for the Protection of North Kohala Coastline v. County of Hawai'i, 91 Hawai'i 94, 103, 979 P.2d 1120, 1129 (1999); Kahana Sunset Owners Ass'n v. County of Maui, 86 Hawai'i 66, 71, 947 P.2d 378, 383 (1997). Moreover, the easement which was a hiking right of way granted to the then Territory of Hawai'i was not implicated and that too was not going to be used.

And no Preliminary Injunction Either. Finally, the HSC did not find an abuse of discretion when the circuit court declined to order a preliminary injunction which would stop the City from processing the subdivision application and force the City to turn over all engineering reports. The HSC agreed with the circuit court that the NVA failed to show irreparable harm in not getting all of the documents in time. See Office of Hawaiian Affairs v. Hous. & Cmty. Dev. Corp. of Hawai'i, 117 Hawai'i 174, 211, 177 P.3d 884, 922 (2008) (the three-part balancing test).

Justice Acoba's Concurrence. Justice Acoba wrote separately to explain two points. First, Justice Acoba agreed that the City's own rules must be followed and that under those rules, it plainly and unambiguously mandates that it give the NVA access to the engineering reports. However, Justice Acoba took issue with the majority defining "maintain" with the agency's choice "to retain possession or control of the records." Justice Acoba "would not foreclose from judicial review situations where documents are not retained in order to circumvent the public disclosure requirements of the UIPA." Second, Justice Acoba believed there was no evidence whatsoever showing that the sewer connect would arise to "use" thereby triggering HEPA. Justice Acoba explained that the roadway extension "under which the hookup would apparently be constructed has not yet been dedicated to the state or county as a public street."

1 comment:

line of flight said...

This may seem like a small victory for the counties and government agencies regarding UIPA, but it is definitely a huge blow to their casual disregard for HAPA.