Wednesday, June 11, 2008

"Didn't the state waive attorney-client privilege..."

I've got a lot of stuff to post, including some things I noticed in the 2 most recent OTF committee meeting reports, the most recently presented scientific papers on ship-whale collisions, and information on the Cultural Impact Assessment being done on the harbors including for Nawiliwili harbor. But, Derrick Depledge came through with a good article today, so we'll cover that for today and two other lawyer blog comments on that and save the others for the next few days.

First, from Derrick's article:
Posted on: Tuesday, June 10, 2008
"Lingle keeps lid on Superferry records;
Administration cites both attorney-client and executive privilege"
By Derrick DePledge Advertiser Government Writer

"The Lingle administration, citing attorney-client privilege and executive privilege, has declined a request by The Advertiser to publicly release hundreds of e-mails and other documents related to its decision to exempt the Hawaii Superferry project from environmental review...

State Attorney General Mark Bennett's office, in a written response to questions from The Advertiser, said the state routinely declines to release information requested through the open-records law because of attorney-client privilege...

State Senate Majority Leader Gary Hooser, D-7th (Kaua'i, Ni'ihau), who wanted an environmental review of Superferry, said..."It seems clear that there was a legal analysis and the Lingle administration needs to provide that," he said. "And, I would think, that if the legal analysis supported their position, they would have provided it already."

...State Rep. Marcus Oshiro, D-39th (Wahiawa), who aggressively questioned administration officials about Superferry last year, "I had hoped for and expected them to be more forthcoming..." Oshiro, an attorney, said he does not see any justification for the administration to withhold a legal analysis of whether an exemption was warranted, or discussions about strategy related to an environmental review, because of attorney-client privilege. He said, since the decision itself has been ruled an error by the Supreme Court and is no longer the subject of any Superferry lawsuits, the only reason for the administration to withhold the documents is to avoid embarrassment...'They Really Messed Up'...Oshiro described the administration's use of executive privilege as even more extraordinary. He said executive privilege is rarely invoked nationally and he can recall no previous time it has been used in Hawai'i to deny lawmakers or the public records linked to a public-policy decision. "Either way, they really messed up on this one," he said. "If they did not ask for a legal opinion, they were negligent. If they did ask for a legal opinion and they did not follow that, they were grossly negligent."

Now, about the lawyer blog commentaries on this. First, the shorter one pointed out to me:
Tuesday, June 10, 2008
When the Superferry lawsuit was going down, I hated saying I went to law school. People I didn't even know would start complaining to me about how environmentalists were making Hawaii look hostile to business. They'd tell me, businesses will see how Hawaii treats companies and they won't want to bring any projects here ever again. But now the debate has shifted. Today's Superferry news about the state administration holding back on legal analysis of preferential treatment for the Superferry makes Hawaii look like a tiny, rural, backwater state. It gives Hawaii the appearance of being one of those gross little places where people get ahead by greasing government officials. It makes Hawaii look a little like the government regulatory version of Deliverance. I'm sure anyone would rather pay for an EIS than squeal like a pig.

And second, a fairly detailed legal analysis about whether the state's actions waived attorney-client privilege on this matter:
Tuesday, June 10, 2008
Recommend reading this full blog entry at:
Didn't the state waive attorney-client privilege when it gave an email to the newspaper?
Posted by Charley Foster

"Derrick DePledge has an interesting piece in the Advertiser this morning about the paper's attempts to get at legal advice the AG rendered to the administration concerning the requirements of an environmental review for Superferry related harbor improvements...

The protection of the attorney-client privilege, like other privileges, may be waived or relinquished. The client is the holder of the attorney-client privilege and, thus, the person ultimately entitled to decide whether to claim or waive it...

...Certainly it seems arguable to me that this sort of disclosure is "the disclosure of 'any significant part' of a communication" which therefore "waives the privilege and requires the attorney to disclose the details underlying the data which was to be published." According to the article, "The state Office of Information Practices denied an appeal by the newspaper to revisit a 1991 ruling that found that advice and counsel from the attorney general to state agencies is protected by the privilege and excepted from the open-records law." But it sounds to me like the newspaper miscast the request. Why ask the OIP to "revisit" a ruling - impliedly asking the OIP to overturn the ruling - when what you really want the OIP to do is enforce the ruling in this case. I would have argued that under the 1991 ruling the state waived attorney-client privilege in the Superferry environmental report issue when it passed along to the newspaper at least one email from the client discussing the attorney's advice."

One last thing, a good audio file that came out today of recent interviews from Kauai on this:

Published: June 10, 2008
"Sea Of Controversy For Hawaii's Superferry"

"For decades, people who wanted to get from one Hawaiian island to another have had one main option: flying. So when plans were unveiled for a high-speed ferry between the islands, Hawaiians and tourists were initially thrilled. But growing concern about the Superferry's potential environmental impact has turned the issue into one of the state's biggest legal battles in years. The Environment Report's Ann Dornfeld reports June 9, 2008."
Listen to it here:

Aloha, Brad

1 comment:

MauiBrad said...

Re: "Didn't the state waive attorney-client privilege..."‏
From: DePledge, Derrick
Sent: Mon 6/16/08 3:12 PM

"...Mr. Foster's point about whether the state waived attorney-client privilege when they turned over the e-mails mentioning the deputy attorney general's advice is indeed interesting. But what Mr. Foster did not know is that the state included a "Statement of Nonwaiver" on each of the 21 boxes of documents that said that the inadvertent disclosure of privileged documents was not a waiver of confidentiality for other documents. By accepting the documents, I acknowledged the notice and basically gave up the right to challenge them on waiving the privilege in this regard. I decided it was more important to get as many documents as possible up front than to wage a legal fight over the "Statement of Nonwaiver," which could have resulted in a lengthy delay. Our argument now is that attorney client privilege is not absolute in the government sector and, in this instance, must be balanced with the public interest of government transparency found in the state's open-records law. We're arguing that because the question of whether an environmental review was necessary has been resolved by the state Supreme Court and is not the subject of ongoing litigation, and the fact that the state is protected through Act 2 from future lawsuits related to the decision to exempt the project, that certain documents should be released."