Hawaii governor must disclose state high court nominees

A Hawaii circuit court judge ruled this week that the governor must release the list of state judicial nominees to the public under the state's open records law.

Gov. Neil Abercrombie's attorneys have said in court proceedings that the governor does not want to make the names public because he believes it will deter other potential candidates. But Honolulu Star-Advertiser vice president and editor Frank Bridgewater said the previous two governors had released the names of potential judicial appointees, a tradition spanning over a dozen years.

The newspaper filed suit after numerous unsuccessful requests to the governor's office for the list of state Supreme Court nominees, which is provided to the governor by the Judicial Selection Committee.

The attorney general's office, which represented Abercrombie, argued that the list should not be released because it was the type of information that the Uniform Information Practices Act (Hawaii's open records law) permits to be kept confidential. According to the act, information that may hinder a government function may be exempted from public release.

Abercrombie's attorneys argued that since the Judicial Selection Committee gave the list to the governor in confidence, he was obligated to keep the list confidential. Further, the defense said that releasing the list would have a "chilling effect" on nominees, but the court found no evidence in the record to support that claim.

However, the judge ruled that the law did not require the list to remain confidential because the Hawaii Supreme Court had previously held that only the Judicial Selection Committee was required to maintain the list's secrecy. Additionally, the judge found that the defense had not shown how releasing the list would hinder the selection committee's proceedings.

The defense also argued that releasing the records would violate the nominees' personal privacy rights. However, the court did not believe that the release of the list would be "unduly invasive," as the nominee list itself contained no personally identifying information other than the person's name.

For those reasons, the court ordered the release of the list, which Bridgewater described as a “stand for the public."

“We think it would just help the public to understand the thinking that goes into the process,” Bridgewater said. “It’s a good time for public vetting of the candidates that he has put forth. People need to know if there are lobbyists involved or donations involved.”

But, due to court procedures, the names may not be made public for another nine months. In accordance with court procedure, attorneys for the newspaper must draft an order based on the circuit court argument proceedings and the judge’s resultant oral order, then submit it to the attorney general for review. The written order will then go to the judge, at which point it can be executed, and the attorney general can decide whether to appeal the ruling.

“Obviously, we are disappointed with Circuit Court’s oral ruling today,” said Attorney General David Louie in a written statement. “Once we receive the court’s written order and have the opportunity to thoroughly review it and consider other relevant factors, we will decide how to respond.”