§92-5  Exceptions.  (a)  A board may hold a meeting closed to the public pursuant to section 92-4 for one or more of the following purposes:

     (1)  To consider and evaluate personal information relating to individuals applying for professional or vocational licenses cited in section 26-9 or both;

     (2)  To consider the hire, evaluation, dismissal, or discipline of an officer or employee or of charges brought against the officer or employee, where consideration of matters affecting privacy will be involved; provided that if the individual concerned requests an open meeting, an open meeting shall be held;

     (3)  To deliberate concerning the authority of persons designated by the board to conduct labor negotiations or to negotiate the acquisition of public property, or during the conduct of such negotiations;

     (4)  To consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities;

     (5)  To investigate proceedings regarding criminal misconduct;

     (6)  To consider sensitive matters related to public safety or security;

     (7)  To consider matters relating to the solicitation and acceptance of private donations; and

     (8)  To deliberate or make a decision upon a matter that requires the consideration of information that must be kept confidential pursuant to a state or federal law, or a court order.

     (b)  In no instance shall the board make a decision or deliberate toward a decision in an executive meeting on matters not directly related to the purposes specified in subsection (a).  No chance meeting, permitted interaction, or electronic communication shall be used to circumvent the spirit or requirements of this part to make a decision or to deliberate toward a decision upon a matter over which the board has supervision, control, jurisdiction, or advisory power. [L 1975, c 166, pt of §1; am L 1985, c 278, §3; gen ch 1985; am L 1996, c 267, §3; am L 1998, c 48, §1; am L 1999, c 49, §1]


Attorney General Opinions


  Subsection (a)(1) is applicable only when a specific individual is involved.  Att. Gen. Op. 75-11.

  Even if there is no quorum, meeting to discuss official business may be prohibited unless sunshine law followed.  Att. Gen. Op. 85-27.

  Subsection (a)(2) and §92-9 read together permit board and commission members to disclose some matters deliberated or decided in executive session, but they cannot disclose matters which would be inconsistent with subsection (a)(2), i.e., matters affecting privacy of individuals under consideration for hire, and they must maintain this confidentiality for as long as disclosure would defeat purpose of convening the executive meeting.  Att. Gen. Op. 94-1.


Law Journals and Reviews


  2013 Law and Administrative Rules Governing Appeal Procedures of Hawaii's Office of Information Practices.  36 UH L. Rev. 271 (2014).


Case Notes


  Although §92-2.5(a) does not expressly preclude city council members from engaging in serial one-on-one conversations, when council members engaged in a series of one-on-one conversations relating to a particular item of council business, under subsection (b), the spirit of the open meeting requirement was circumvented and the strong policy of having public bodies deliberate and decide its business in view of the public was thwarted and frustrated.  117 H. 1 (App.), 175 P.3d 111.

  In a suit deciding whether disclosure of county council executive session minutes was required, circuit court properly found that both chapter 92F and this chapter applied; if the meeting met an exception to the open meeting requirements put forth in this chapter, such as an exception enumerated in this section, the council was not required to disclose the minutes of that meeting to the public; if the meeting did not fall under such an exception, the council was required to disclose the minutes  pursuant to §92-9 and §92F-12.  120 H. 34 (App.), 200 P.3d 403.

  Where it was clear from the county council executive session minutes that the county attorney consulted with the council consistently and at length throughout the executive session regarding the procedure to follow in conducting an investigation of the county police department and that the council's consultation with the attorney largely concerned the ramifications of the sunshine law on the council's investigation -- a legal question, the council was justified in closing the meeting to the public in executive session.  120 H. 34 (App.), 200 P.3d 403.

  Where the county council executive session conversation consisted of either direct communication between the council members and the county attorney or communication among council members that flowed from consultation with the county attorney, the attorney-client portions of the executive session were so intertwined with other portions of the executive session that redacting the privileged portions and disclosing the remainder of the minutes was impractical.  120 H. 34 (App.), 200 P.3d 403.



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