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Home My WebLink AboutCOM 1076.001 2014-2016 COUNTY CLERIC COUNTY OF HAWAII RECEIVED IN RE: STATE OF HAWAII vs.WILLIAM P.KENOI Time 5:25 p.m.$y�,r,,, • Date 10/04/201 h CONTENTS 1. County of Hawai`i's Motion to Quash Subpoena Seeking Attorney/Client Privileged Material and for an Order Requiring the Return or Destruction of Privileged Material Inadvertently Disclosed; Memorandum in Support of Motion; Declaration of Laureen L. Martin; Exhibits "A"—"D"; Notice of Hearing Motion; Certificate of Service, filed August 30, 2016 2. State's Memorandum in Opposition to County of Hawai`i's Motion to Quash Subpoena Seeking Attorney/Client Privileged Material and for an Order Requiring the Return or Destruction of Privileged Material Inadvertently Disclosed; Declaration of Kevin K. Takata; Exhibits 1-3; Certificate of Service, filed September 12, 2016 3. County of Hawai`i's Reply to State's Memorandum in Opposition to County of Hawai`i's Motion to Quash Subpoena Seeking Attorney/Client Privileged Material and for an Order Requiring the Return or Destruction of Privileged Material Inadvertently Disclosed; Certificate of Service, filed September 15, 2016 • • Submitted by: Steve Strauss, Deputy Corp. Counsel Comm.No. Ref.To: 14 GeREOC Ref.Date We•40.0%to Q MOLLY A. STEBBINS 8639 - • Corporation Counsel1-` sTAH LAUREEN L. MARTIN 5927 2016AUG30 PM 1: 29 Deputy Corporation Counsel, Section Chief STEVEN D. STRAUSS 5242 Deputy Corporation Counsel Office of the Corporation Counsel L. Hilo Lagoon Centre CLERK 101 Aupuni Street, Suite 325 Hilo,Hawai`i 96720 Telephone: 961-8251 Facsimile: 961-8622 E-mail: Steven.Strauss@hawaiicounty.gov Laureen.Martin@hawaiicounty.gov Attorneys for COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII STATE OF HAWAII , Cr. No. 16-1-0085 COUNTY OF HAWAII'S MOTION TO • vs. QUASH SUBPOENA SEEKING ATTORNEY/CLIENT PRIVILEGED MATERIAL AND FOR AN ORDER WILLIAM P. KENOI, REQUIRING THE RETURN OR DESTRUCTION OF PRIVILEGED MATERIAL Defendant. INADVERTENTLY DISCLOSED; MEMORANDUM IN SUPPORT OF MOTION; DECLARATION OF LAUREEN L. MARTIN; EXHIBITS "A"-"D";NOTICE OF HEARING MOTION; CERTIFICATE OF SERVICE Hearing: Date: September 16, 2016 Time: 1:00 p.m. Judge: Honorable Dexter D. Del Rosario Trial: October 10,2016 1 • • COUNTY OF HAWAII'S MOTION TO QUASH SUBPOENA SEEKING ATTORNEY/CLIENT PRIVILEGED MATERIAL AND FOR AN ORDER REQUIRING THE RETURN OR DESTRUCTION OF PRIVILEGED MATERIAL INADVERTENTLY DISCLOSED COUNTY OF HAWAI`I ("County"), by and through its counsel, hereby moves for an order quashing the subpoena issued on August 3, 2016 which seeks attorney/client privileged materials. See Exhibit"A". This motion is brought pursuant to Rules 12 and 17 of the Hawai`i Rules of Penal Procedure, Rule 503 of Hawaii Rules of Evidence and is based upon the Memorandum in Support of Motion, Declaration of Laureen L. Martin,and exhibits, all attached hereto, the records and files herein, and on such further and other grounds as may be adduced at a hearing on this motion. Dated: Hilo, Hawai`i, August 30, 2016. COUN O HA AI`I, Defendant 061 By STEVE" ]D. WI SS Deputy Corporation Counsel Its attorney S2 • IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII STATE OF HAWAI`I , Cr.No. 16-1-0085 MEMORANDUM IN SUPPORT OF MOTION vs. WILLIAM P. KENOI, Defendant. MEMORANDUM IN SUPPORT OF MOTION I. INTRODUCTION The State of Hawai`i ("State")mailed a subpoena duces tecum("Subpoena") to the Office of Corporation Counsel ("Corporation Counsel")which purports to require the County of Hawai`i ("County") to provide copies of forty communications listed on the County's privilege log as attorney-client communications. See Exhibit"A". In its attempt to obtain privileged communications, the State claims, without any support, that nearly every exception to the attorney-client privilege applies. Apparently anticipating these arguments will fail,the State also makes the"hail Mary" argument that privilege communications are public records and must be disclosed pursuant to HRS, Chapter 92F. However,the State's arguments are without merit and therefore, the Subpoena must be quashed. II. STATEMENT OF FACTS In 2015, the State began its criminal investigation involving Mayor William Kenoi's ("Mayor") and the use of his pcard. Declaration of Laureen L. Martin ("LLM Dec.") at¶ 7. As part of its investigation, it issued numerous subpoenas requiring the production of County 4110 1 documents and compelling County employees to testify. Id. The County, through Corporation Counsel,produced over 18,000 pages of documents and assisted in producing over twenty-five County employees for interviews. Id. In producing the records, forty communications were withheld based upon the attorney-client privilege. Exhibit"A". A privilege log was produced in June 2015 which clearly identified each email which was withheld. Id. Over a year after the privileged log was produced,the State now demands these communications be produced claiming the privilege does not apply because of "deliberate/inadvertent disclosure, potential crime exception, waiver, subject matter waiver, lack of legal opinion sought/provided, etc." See Exhibit"B". In addition, the State apparently asserts the emails are public records under HRS, Chapter 92F. Id. The State has failed to identify any case or statute which supports its position. Instead, it simply mailed the subpoena which required the disclosure of all privileged emails.' As a result, the County is forced to file the instant motion in order to protect the privileged communications. III. ARGUMENT A. THE COMMUNICATIONS ARE PRIVILEGED AND CORPORATION COUNSEL IS UNABLE TO WAIVE THE PRIVILEGE The attorney-client privilege is not only the oldest privilege known to the common law, but the privilege is also "perhaps, the most sacred of all legally recognized privileges, and its preservation is essential to the just and orderly operation of our legal system." United States v. Bauer, 132 F.3d 504, 510 (9th Cir.1997). The Supreme Court has noted that"[t]he privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or 'Service by mail is improper since it is contrary to Hawai`i Rules of Penal Procedure, Rule 7(c). In the past, Corporation Counsel has agreed to accept service of certain subpoenas. However, the State never requested Corporation Counsel accept service for this Subpoena. Therefore, service was improper. However, in an effort to prevent delay and have this matter resolved expeditiously, the County will waive its right to proper service of this Subpoena. • 2 • advocacy depends upon the lawyer's being fully informed by the client." Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981). IIaw. Rev. Stat. Ann. § 626-1, Rule 503 which sets forth the attorney-client privilege defines"client" as a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services. Therefore, it is clear the attorney-client privilege is applicable to government entities, officials and government attorneys. Rule 503(b) makes it clear that the client has the right to refuse to disclose "and to prevent any other person from disclosing confidential communications...". Likewise, subsection (c)provides it is the client who may claim the privilege and expressly provides that the attorney "shall claim the privilege on behalf of the client unless expressly released by the client." Consistent with Rule 503, Rue 1.6 of the Rules of Professional Conduct provides that a "...lawyer shall not reveal confidential information..." Although Rule 1.6 permits the disclosure under certain circumstances, it does not mandate disclosure and none of the exceptions listed in subsection (b) are applicable. There is only one circumstance in which the ethical rules require an attorney to disclose confidential information. Rule 1.6(c) of the Rules of Professional Conduct states: A lawyer shall reveal information that clearly establishes a criminal or fraudulent act of the client in the furtherance of which the lawyer's services had been used, to the extent reasonably necessary to rectify the consequences of such act, where the act has resulted in substantial injury to the financial interests or property of another. In the present case,the subject communications do not establish criminal or fraudulent conduct, nor were lawyer services used to further criminal or fraudulent conduct. See LLM Dec. at¶7. Even if the communications did satisfy those requirements, which they do not, disclosure would not be necessary to rectify the consequences of such an act. As a result,the State's S3 insistence that Corporation Counsel release the privileged communications is contrary to ethical rules which require Corporation Counsel to assert the privilege.' B. CORPORATION COUNSEL HAS NOT INTENTIONALLY DISCLOSED ANY PRIVILEGED COMMUNICATIONS AND ANY INADVERTENT DISCLOSURE IS NOT A WAIVER The State has indicated that it believes it is in possession of some communications listed on the privilege log. See Exhibit"B". The State asserts that Defense Counsel for the Mayor has provided communications 28, 29 and 30. The State appears to be arguing the disclosure of those communications was done intentionally. Since the disclosure was not through Corporation Counsel, the County takes no position as to whether that disclosure was done intentionally or not. The State also appears to be claiming that other privileged communications may have been inadvertently disclosed. However,the State has declined to identify the communications • which it possesses. Exhibit"B". Rather, the State has instructed Corporation Counsel to figure out on their own what emails, if any, may have been inadvertently disclosed. Although Corporation Counsel has attempted to locate any such emails,the task is difficult given the volume of records produced. Furthermore, if the State is aware of an advertent disclosure, Rule 4.4(b) of the Rules of Professional Conduct require it to promptly notify the sending attorney of the communications, not play a game of hide and seek.3 'All of the communications withheld were between County employees and their attorneys which sought and provided legal advice. LLM Dec. at¶ 8. None of these communications include third-parties, i.e., non-County employees. Id. 'When a prosecutor intends to seek to use privileged information, the prosecutor must either (1) give notice to the person who might claim the privilege and the person's counsel, so that the person or the person's attorney can seek judicial review of any claim or privilege or waive the privilege, or (2) give notice to the person's counsel and, if the person's counsel does not raise the • 4 • Although disclosure can result in a waiver, no waiver occurred as to any communications inadvertently produced by Corporation Counsel. The Hawai`i Supreme Court set forth the test for determining when the attorney/client privilege has been waived by an inadvertent disclosure In Save Sunset Beach Coal. v. City& Cty. of Honolulu, 102 Haw. 465, 486, 78 P.3d 1, 22 (2003), and outlined the following factors: (1)the reasonableness of precautions taken to prevent disclosure; (2) the amount of time taken to remedy the error; (3)the scope of discovery; (4) the extent of the disclosure; and (5)the overriding issue of fairness.` In the present case, most of the communications from the attorney were marked confidential and privileged. LLM Dec at¶ 8. In addition, documents were reviewed prior to being produced to the State and attorney/client material was removed. Id. at¶ 6. As a result reasonable precautions were taken to prevent disclosure. As to the second factor, the amount of time taken to remedy the error, the County has • only recently learned of the possibility of an inadvertent disclosure. The State's refusal to provide more details hinders the County's ability to remedy the error. The County has immediately moved to quash the subpoena and for an order requiring the State to destroy any privileged communications which were inadvertently disclosed. Therefore, the County has made significant efforts to remedy the error. As to the third and fourth factors, the scope of discovery and the extent of the disclosure, these also favor the finding of no waiver. The County produced in excess of 18,000 pages of documents. The volume of records makes it likely that errors may occur. Given the State's• privilege and seek judicial review,the prosecutor must seek the court's ruling on the privilege issue. State v. Wong, 97 Haw. 512, 521,40 P.3d 914, 923 (2002). `Finding a waiver when privileged communications are inadvertently disclosed appears contrary to Hawai`i Rule of Evidence Rule 511, which requires voluntary disclosure to waive the privilege. 5 ® refusal to identify which emails may have inadvertently disclosed, it is difficult to argue the extent of the error. However, Corporation Counsel has attempted to locate the privileged documents and have been unsuccessful. As a result, it appears any inadvertent disclosure is minimal. As to the final factor,the overriding issue of fairness, this also weighs in favor of nondisclosure. Corporation Counsel has produced thousands of pages of documentation and it has done so in a timely and organized manner. However, it is not perfect and should not be held to an impossible standard. Mistakes happen. It would be unjust to punish the client,the holder of the privilege, even though the inadvertent disclosure was not the client's fault. Furthermore,there's no indication that these emails are important to the issues in this case or that the State cannot obtain similar information from other sources. As a result, any inadvertent disclosure by Corporation Counsel did not result in a waiver. ® C. TO THE EXTENT THAT THE MAYOR MAY HAVE INTENTIONALLY WAIVED THE PRIVILEGE TO COMMUNICATIONS 28, 29 AND 30,THIS DOES NOT WAIVE THE PRIVILEGE TO THE REMAINING THIRTY-SEVEN EMAILS The State apparently contends the Mayor intentionally waived the privilege as to communications 28, 29 and 30 and that waiver resulted in a"subject matter waiver"of other communications. However, even if Hawai'i law favors a"subject matter waiver", not all of the remaining communications relate to the same subject matter as communications 28,29 and 30. Furthermore, the Mayor is not included on several of the emails. Therefore, even if the Mayor waived the privilege, it is impossible for him to have waived it as to communications on behalf of others and for communications which he was not a privy to, such as communications 25, 26 and 31. ® 6 Upon reviewing all of the communications listed on the privilege log, only one communication included the Mayor and appears to relate to the same subject matter, communication 32. LLM Dec at¶9. Therefore, assuming the Mayor made a voluntary waiver of the privilege as to communications 28, 29 and 30, the County suggests the Court conduct an in camera review of communication 32 in order to determine whether it involves the subject matter and must be produced. D. THE CRIME OR FRAUD EXCEPTION IS INAPPLICABLE The State also claims the privileged communications may not be privileged based upon the"potential crime exception". See Exhibit"B". Neither Rule 503 of the Hawai`i Rules of Evidence Rule 503 or Rule 1.6 of the Rules of Professional Conduct provides an exception for "potential"crimes. Rather, Rule 503 provides: (d) Exceptions. There is no privilege under this rule: i (1) Furtherance of crime or fraud. If the services of the lawyer were sought, obtained, or used to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; Therefore, in order for the crime or fraud exception to apply, the services of the lawyer must have been used to commit a crime or fraud. However, none of the privileged communications involve criminal conduct or the charges against the Mayor. LLM Dec at¶ 7. The Mayor is charged with four counts of theft, which allegedly occurred May 11, 2011 to October 20, 2011, January 17, 2013 to June 28, 2013, June 30, 2014 and November 16,2014. See Exhibit"D". The Mayor is also charged with tampering with a government record for a Hilo Yacht Clubpurchase on October 20, 2011, a purchase on March 17, 2013 at Longs and a purchase on June 30, 2014 at the Volcanoes House Restaurant. Id. Finally, the Mayor is • 7 . . • charged with one count of false swearing which is alleged to have occurred on February 6, 2015. Id. None of the privileged communications relate to any of the charges against the Mayor. LLM Dec at¶7. Furthermore, communications 1-25, 33-40 all occurred after the last alleged crime which occurred on February 6, 2015. Therefore, it is impossible for these communications to have been used to further the crimes allegedly committed by the Mayor. The remaining communications, communications 26-32 occurred from December 17, 2009 through November 18, 2010. Exhibit"A". Well before the crimes the Mayor is alleged to have committed. As a result, these communications do not relate to any crimes alleged against the Mayor. 1 Importantly, even if Plaintiffs could prove these alleged crimes,they have failed to make any argument that"the services of the lawyer were sought,obtained, or used to enable or aid 0 anyone to commit or plan to commit what the client knew or reasonable should have known to be a crime or fraud (emphasis added)." It is not sufficient that the crime or fraud was in progress at the time of the legal consultation. Rather, the services of the attorney must have been used to commit the crime or fraud. See US. v. Bauer, 132 F.3d 504 (9th Cir.,1997)(lawyer's advice to disclose all assets in bankruptcy petition did not further client's fraudulently incomplete filing); U.S. v. Collis, 128 F.3d 313 (6th Cir.,1997)(client's obstruction of justice was accomplished through counsel's unwitting submission of a forged letter from ' Chen, F.3d 14 5 (9th Cir. 1996 law ers filed client's employer to sentencing court); U.S. v. 99 9 )( y false customs declarations to USCS on behalf of client). 0 8 ® There is simply no evidence that demonstrates that the services of an attorney were used, enabled or aided someone to commit a crime. Therefore, the crime-fraud exception is clearly not applicable. E. HRS, CHAPTER 92F DOES NOT MANDATE THE RELEASE OF PRIVILEGED COMMUNICATIONS Apparently, the State believes attorney-client communications involving the government are subject to public disclosure. See Exhibit"B". However,there is no support for such a radical proposition and the State's position is contrary to Rule 503 of the Hawai`i Rules of Evidence, case law and even decisions by the Office of Information Practices ("OIP"), a State agency. As noted, supra, Rule 503 expressly provides the attorney-client privilege applies to public entities and public officers. In Hui Malama Aina 0 Ko'olau v. Pacarro, 4 Haw. App. 304, ® 314, 666 P.2d 177, 183-84 (1983),the Intermediate Court of Appeals found communications between the County Council and Corporation Counsel were privileged and not subject to disclosure. The Court noted that "A public agency should neither be given an advantage, nor placed at a disadvantage in litigation." Id. Therefore, there can be little doubt that communications between Corporation Counsel and County employees are protected by the attorney-client privilege. Despite this protection, the State argues these communications are public records which must be disclosed, thereby destroying the privilege. However,the State is wrong. The Uniform Information Practices Act("UIPA") set forth in HRS, Chapter 92F provides when government records must be made available for public disclosure. OIP is the State agency designated to monitor, oversee and render advisory opinions relative to Chapter 92F. HRS § 92F-42. 4111 9 In 2014, the OIP issued an opinion regarding attorney-client communications involving the legal advice of the Department of the Corporation Counsel, City& County of Honolulu. See Exhibit"C". OIP held the legal memorandum was protected from disclosure by the attorney-client privilege under Rule 503, HRE, "...and as such, are also protected from public disclosure under section 92F-13(2), (3) and(4), HRS."5 Exhibit"C" at 2. Similarly the communications outlined in the privilege log are protected by the attorney-client privilege and therefore,not subject to public disclosure under HRS § 92F-13. Therefore, Chapter 92F does not require privileged communications be disclosed. IV. CONCLUSION The State's assertion that all of the privileged communications must be disclosed demonstrates how meritless its position is. The communications which were withheld are privileged communications between a client and an attorney for legal advice and must remain confidential. Although the State may wonder what was discussed in these communications, this does not provide a basis to violate the sanctity of the attorney-client privilege. 5HRS § 92F-13 sets forth various exceptions which permit the government to withhold documents and states in pertinent part: This part shall not require disclosure of: (2) Government records pertaining to the prosecution or defense of any judicial or quasi-judicial action to which the State or any county is or may be a party,to the extent that such records would not be discoverable; (3) Government records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function; (4) Government records which, pursuant to state or federal law including an order of any state or federal court, are protected from disclosure... 411 10 WHEREFORE, the County respectfully requests the Subpoena be quashed and the State be ordered to destroy any privileged communications which were inadvertently disclosed. Dated: Hilo, Hawai`i,August 30, 2016. COUNTY OF HAW AI`I,Defendant i► By STE D. JSS Deputy Corporation Counsel Its attorney • 4110 11 • IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII STATE OF HAWAII , Cr.No. 16-1-0085 DECLARATION OF LAUREEN L. MARTIN vs. WILLIAM P. KENOI, Defendant. DECLARATION OF LAUREEN L. MARTIN I, LAUREEN L. MARTIN, being first duly sworn,upon oath deposes and says that: 1. I am an attorney duly licensed to practice law before all courts in the State of • Hawai`i. 2. I am an attorney employed by the Office of the Corporation Counsel for the County of Hawai`i and am one of the attorneys assigned to represent the County in this matter and have personal knowledge of the matters set forth herein. 3. Attached hereto as Exhibit"A"is a true and accurate copy of a transmittal and subpoena which our office received by mail. Our office did not agree to accept service of this subpoena. 4. Exhibit"B"are true and accurate copies of emails exchanged between the Attorney General's office and the Office of Corporation Counsel. 5. Exhibit"C"is a true and accurate copy of OIP Op. Ltr.No. F14-01 which I obtained from the Office of Information Practices' website. 110 1 6. Exhibit"D"is a true and accurate copy of the Indictment in the present case and attached for the court's convenience. 7. In 2015 the Attorney General's office began a criminal investigation involving Mayor William Kenoi's ("Mayor") and the use of his pcard. As part of its investigation, it issued numerous subpoenas requiring the production of County documents and compelling County employees to testify. The County, through Corporation Counsel,produced over 18,000 pages of documents and assisted in producing over twenty-five County employees for interviews. Prior to producing the documents to the State,the Office of Corporation Counsel reviewed the records and removed any communications which were deemed protected by the attorney-client privilege. Forty communications were withheld based upon the attorney-client privilege. A privilege log was produced in June 2015 which clearly identified each email which was withheld. 8. I have carefully reviewed each of the forty communications listed on the privilege log and none of them establish or involve criminal or fraudulent conduct, nor were lawyer services used to further criminal or fraudulent conduct. I have reviewed the indictment in this case and the emails to do not relate to the charges against the Mayor. 9. All of the communications withheld were between County employees and their attorneys. None of the communications which were withheld include third-parties, i.e., non-County employees. Most of the communications from the attorney were marked confidential and privileged. 10. I have reviewed communications 28, 29 and 30 and compared the subject matter of 28, 29, and 30 to the other communications listed on the privilege log. Upon reviewing all of the communications listed on the privilege log, only communication 32 included the Mayor and may relate to the same subject, communication 32. • 2 I declare under penalty of law that the forgoing is true and correct. Dated: Hilo, Hawai`i, August 30, 2016 S LAUREEN L. MARTIN • • • 3 DAVID Y.IGE r DOUGLAS S.CHIN N 1111 GOVERNOR t." k :14.54 ATTORNEY GENERAL RUSSELL A.SUZUKI • FIRST DEPUTY ATTORNEY GENERAL c NN.fCA� STATE OF HAWAII DEPARTMENT OF THE ATTORNEY GENERAL CRIMINAL JUSTICE DIVISION 333 QUEEN STREET,2ND FLOOR HONOLULU,HAWAII 96813 (808)586-1160 Fax:(808)586-1375 TRANSMITTAL LETTER [ ]HAND DELIVERED [X]MAILED [X]CERTIFIED MAIL, RETURN RECEIPT REQUESTED TO: Laureen Martin Corporation Counsel—Hilo Lagoon Centre County of Hawaii 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 FR: Malia Anfinson, Legal Clerk Kevin K. Takata Supervising Deputy Attorne = eral 410 Michelle M.L. Puu Deputy Attorney General Criminal Justice Division DATE: August 8, 2016 RE: State of Hawaii vs.WILLIAM KENOI, Cr. No. 16-1-0085 COPIES DESCRIPTION Original + 1 copy Subpoena Duces Tecum TRANSMITTED FOR: [ ]Your information & Files [ ]Your Approval [X ] Your Signature & Return [ ]Your Review& Comments [X] For Appropriate Action [X]See Remarks Below [ ]Your Signature and Forwarding, as Indicated Below: Uponon receipt of this original subpoena,oena, please date/sign and return to us the self- addressed stamped envelope enclosed and keep the copy for your files. If you have any questions, please do not hesitate to contact Supervising Deputy Attorney General Kevin K. Takata at (808) 586-1075 or Deputy Attorney General Michelle Puu at (808) 586-1172. Thank you. 658244 1.DOC EXHIBIT A " STATE OF HAWAII 0 SUBPOENA CASE NUMBER CIRCUIT COURT OF THE • NOTICE TO APPEAR Cr. No.16-1-0065 THIRD CIRCUIT W SUBPOENA DUCES TECUM PLAINTIFF DEFENDANT STATE OF HAWAII WILLIAM P. KENO! ATTORNEY(NAME and ADDRESS) COMMENTS: Kevin K.Takata and Michelle M.L.Puu Dept of the Attorney General/Criminal Justice Division E-mails described in attachedprivilege log,dated 333 Queen Street,Suite 200,Honolulu,Hawaii 96813 June 10,2015. THE STATE OF HAWAI'i TO: ANY OFFICER AUTHORIZED BY LAW TO SERVE SUBPOENAS IN THE STATE OF HAWAII YOU ARE COMMANDED to subpoena the individual named below. NAME AND ADDRESS OF WITNESS Office of the Corporation Counsel Attn:Laureen Martin Hilo Lagoon Centre, 101 Aupuni Street,Unit 325 ATTACH CONTINUATION PAGE IF NEEDED Hilo, Hawaii 96720 WITNESS,YOU ARE COMMANDED to appear at the time and place indicated to testify as a witness on behalf of the CX PLAINTIFF U DEFENDANT U You are further ordered to bring with you the items listed in the comments section. III DATE TIME SEPTEMBER 16, 2016 1:00 P.M. LOCATION/ROOM JUDGE 777 Kilauea Ave. , Courtroom 2A DEXTER D. DEL ROSARIO Hilo, HI 96720 DISOBEDIENCE of this subpoena may be punished as contempt by this court. 60 2016 DATE ISSUED CLERK RETURN OF SERVICE DATE TIME PLACE SERVICE WAS MADE AT: Comments: U I served the above named person. 0 I served this subpoena on another individual.(explain) DATE TYPE OR PRINT NAME OF SERVER SIGNATURE ® to accordance with the Americans with Disabilities Act and other applicable state and federal laws,if you require a reasonable accommodation for a disability, please contact the ADA Coordinator at the Circuit Court Administration Office at PI IONE NO.961-7440,FAX 961-7416,or TTY 961-7525 at least ten(It))working days prior to your hearing or appointment date. DISTRIBUTION: O ORIGINAL AND COPY — SERVING OFFICER Li PLAINTIFF 13 DEFENDANT ❑ FILE Reprographics(03107) CommonLooke SUBPOENA NOTICE TO APPEAR 3C-P-370 III 503 Certified i ATTORNEY/CLIENT PRIVILEGE LOG Attorney General Investigation CC Subject Document No. Date To From Subject 1 4/2/15 D.Sako P.Boylan W.Kenai;M.Stebbins Message from HNL StarAdvertiser 4/2/15 P.Boylan;D.Sako M.Stebbins W.Kenoi; M.Rodillas Message from HNL 2 StarAdvertiser W.Kenoi D.Sako;M.Stebbins Message from HNL 3 4/2/15 P.Boylan StarAdvertiser 4 4/2/15 W.Kenoi D.Sako P.Boylan;D.Sako;M.Stebbins Message from HNL StarAdvertiser Message from HNL 5 4/2/15 W.Kenoi;P.Boylan M.Stebbins D.Sako StarAdvertiser D.Sako P.Boylan;M.Stebbins Pcard 6 4/2/15 W.Kenoi - Pcard 7 4/2/15 D.Sako;W.Kenoi M.Stebbins P.Boylan Pcard 8 4/2/15 D.Sako;M.Stebbins; P.Boylan _ W.Kenoi 9 4/2/15 P.Boylan;D.Sako; M.Stebbins M.Rodilias Pcard W.Kenoi Pcard 10 4/2/15 P.Boylan;D.Sako; M.Stebbins M.Rodillas W.Kenoi Pcard 11 4/2/15 M.Stebbins;W.Kenoi D.Sako P.Boylan j 4/9/15 W.Kenoi;D.Sako P.Boylan M.Stebbins Media query 12 13 4/15/15 W.Kenoi D.Sako P.Boylan;M.Stebbins NCL couple of questions 4/15/15 D.Sako;W.Kenoi M.Stebbins P.Boylan;M.Rodillas NCL couple of questions 14 NCL couple of questions 15 4/15/15 M.Stebbins D.Sako D.Sako;W.Kenoi;P.Boylan; p M.Rodillas 16 4/15/15 M.Stebbins D.Sako W.Kenoi;P.Boylan;M.Rodillas Nd.couple of questions 17 4/15/15 _ D.Sako M.Stebbins W.Kenoi;P.Boylan;M.Rodillas NCL couple of questions 18 4/15/15 M.Stebbins D.Sako W.Kenoi;P.Boylan;M.Rodillas NCL couple of questions 19 4/15/15 M.Stebbins D.Sako W.Kenoi;P.Boylan;M.Rodillas NCL couple of questions 20 4/15/15 D.Sako M.Stebbins W.Kenoi;P.Boylan;M.Rodillas NCL couple of questions 4/15/15 M.Stebbins P.Boylan D.Sako;W.Kenoi;M.Rodillas NCL couple of questions 21 Preservation notice P.Cainglit;P.Boylan;an•M.R odillas• 22 4/17/15 W.Kenoi;R.Kurohara; M.Stebbins g � Y W.Lau;D.Sako;L.Miura; E.Nacis 1 Production Date: 6/10/15 AG DISCOVERY 025749 11111 III III ATTORNEY/CLIENT PRIVILEGE LOG Attorney General Investigation D.Jacbos 23 4/17/15 M.Stebbins W.Kenoi R.Kurohara;W.Lau;D.Sako;L. Preservation notice Miura;D.Jacobs;P.Cainglit; P.Boylan;M.Rodillas;E.Nacis 24 4/17/15 M.Stebbins W.Lau W.Kenoi;R.Kurohara;D.Sako;L. Preservation notice Miura;D.Jacobs;P.Cainglit; P.Boylan;M.Rodillas;E.Nacis 25 4/21/15 C.Nunokawa M.Stebbins P.Cainglit Pcard processing 26 12/17/09 C.Masuda N.Crawford D.Sako Custodian of Records 27 2/16/10 B.Takaba L.Ashida M.Rodillas;N.Crawford;D.Sako; Travel Records K.Dayton;H.Bishop;W.Kenoi 28 11/24/10 N.Crawford;W.Kenoi; L.Ashida M.Rodillas P-Card Statements B.Takaba;D.Sako 29 11/24/10 L.Ashida;W.Kenoi; N.Crawford M.Rodillas P.Card Statements B.Takaba;D.Sako 30 11/23/10 W.Kenoi;B.Takaba; L.Ashida M.Rodillas P.Card Statements N.Crawford;D.Sako 31 11/19/10 N.Crawford L.Ashida D.Sako;6.Takaba;M.Rodifas; FOIA County P.Cards K.Garson 32 11/18/10 W.Kenoi;B.Takaba; N.Crawford D.Sako Public records request L.Ashida;K.Dayton; H.Bishop 33 3/31/15 D.Sako;P.Boylan D.Sako;P.Boylan W.Kenoi;M.Rodillas Pcard expenses 34 3/31/15 P.Boylan M.Stebbins W.Kenoi Pcard expenses 35 4/9/15 P.Boylan;M.Stebbins D.Sako W.Kenoi;S.Maeda;J.Dansdill Pcard procedures _36 4/9/15 D.Sako;M.Stebbins P.Boylan W.Kenoi;S.Maeda;J.Dansdill Pcard procedures 37 4/2/15 D.Sako P.Boylan W.Kenoi;M.Stebbins Pcard 38 4/2/15 P.Boylan D.Sako W.Kenoi;M.Stebbins Pcard 39 4/2/15 D.Sako;M.Stebbins; P.Boylan None Pcard _ W.Kenoi 40 4/2/15 W.Kenoi D.Sako P.Boylan;M.Stebbins Pcard 2 Production Date: 6/10/15 AG DISCOVERY 025750 l • III ID • Martin, Laureen • From: Puu, Michelle M <michelle.m.puu@hawaii.gov> Sent: Monday,August 15,2016 4:53 PM To: Martin, Laureen Cc: Takata, Kevin K Subject: RE:State v. Kenoi (Privilege Log in Discovery) Ms. Martin: 1 Thank you for your response. In light of your comments below and your refusal to turn these emails over, it is apparent that your office will persist in its position that these emails are privileged. Learning your stance on this matter was the basis for my initial August 1,2016 inquiry. I look forward to hearing the legal basis(including the OIP opinion you mention below)for your office's position when it is provided to the Court. Should you believe that your office inadvertently provided a privileged email to my office,feel free to bring that to the court's attention as well. I'm sure you would agree that between the two of us,you are in a better position to determine whether any of the 40 emails you have selectively retained were amongst the hundreds provided. Finally,the emails provided by the Defense were sent at the precise times you indicated below. Based on this, it's evident that you are already in possession of the emails referenced. Thank you for your time and attention to this matter. • --jviicheCCe Michelle M.L. Puu, Esq. Deputy Attorney General Department of the Attorney General Criminal Justice Division 333 Queen Street, Suite 200 Honolulu, Hawaii 96813 (808)586-1160 From:Martin, Laureen [mailto:Laureen.Martin@hawaiicounty.gov] Sent:Monday,August 15, 2016 3:28 PM To: Puu,Michelle M<michelle.m.puu@hawaii.gov> Cc:Takata, Kevin K<kevin.k.takata@hawaii.gov>; Martin, Laureen<Laureen.Martin@hawaiicounty.gov> Subject: RE:State v.Kenoi(Privilege Log in Discovery) Ms. Puu, I apologize for the delay in responding. I have reviewed the communications and they do not involve criminal conduct and therefore,that exception would not apply. As to emails 28,29 and 30,please be aware these emails were sent at 10:03 a.m.,7:29 a.m.and 10:43,a.m., respectively. Could you please forward me copies of the emails disclosed by defense counsel so that I can determine whether these • are the same emails and whether the privilege was intentionally waived as to those emails? You indicated that you have several emails which fit the descriptions on the privilege log. 1 EXHIBIT " D " Any disclosure of other emails represents an inadvertent disclosure and pursuant to Rule 4.4(b)of the Rules of Professional Conduct,you are required to promptly notify the sending attorney and either reach an agreement 0 regarding the disposition or refrain from using the materials until a definitive ruling by the court can be obtained. Please identify any emails in your possession which fit the descriptions on the privilege log(other than 28,29,and 30). As to your inquiry regarding why these emails are not subject to public disclosure under UIPA,I believe OIP has issued previous opinions which indicate such communications are not subject to public disclosure. Thank you for your cooperation. From: Puu, Michelle M [mailto:michelle.m.puu( hawaii.gov] Sent: Wednesday,August 03, 2016 3:17 PM To: Martin, Laureen 1 Cc:Takata, Kevin K Subject: RE: State v. Kenoi (Privilege Log in Discovery) Ms. Martin: Based on the lack of information provided in your Privilege Log, I am unable to readily determine whether these 40 emails are privileged or not. I presume that they may not be based on deliberate/inadvertent disclosure, i crime exception,waiver,subject matter waiver, lack of legal opinion sought/provided,etc. In any potential p J case,as the Claimant of the privilege,you must establish the basis for the privilege being asserted. In an effort to focus your response,first please clarify whether all 40 of these emails have actually been withheld by your office. We have many emails containing the exact same dates,subject,senders, and recipients. I would suggest a review of these 40 emails along with their respective time stamp as reference to make this determination. Narrowing the list of 40 down to the actual emails withheld may simplify our discussion. I will take this opportunity to note that we may already be in receipt of emails 28,29,and 30. Three • emails fitting the disclosed description have been provided to us by the Defendant's Counsel(absent any claim of privilege). Second,seeing as though it appears we may unfortunately need to litigate this issue, please provide the following additional information on the withheld emails so that the privilege can be evaluated: 1. More detailed description of the correspondence as we clearly cannot discern from the Privilege Log whether these emails were written for purposes of obtaining or providing a legal opinion. 2. Identify who specifically is asserting the privilege as to each of the emails being withheld. 3. Whether any email discussed criminal conduct,as this may constitute an exception to the privilege. 4. The time each email was sent so we may also discern whether we already have any of these emails, or portions thereof. Finally,please explain which exception you are relying upon to remove these 40 emails from the UIPA's governance of open government records. We look forward to and appreciate your prompt response. Thanks so much, .Michelle Michelle M.L. Puu, Esq. Deputy Attorney General Department of the Attorney General Criminal Justice Division 333 Queen Street, Suite 200 Honolulu, Hawaii 96813 • (808)586-1160 2 • From: Martin, Laureen [mailto:Laureen.Mart in@c�hawaiicountv.govl Sent:Wednesday,August 03, 2016 9:40 AM To:Puu, Michelle M<michelle.m.cuu@hawaii.gov> Cc:Takata, Kevin K<kevin.k.takata@hawaii.gov>;Strauss,Steven<Steven.Strauss@hawaiicountv.gov>; Martin, Laureen <Laureen.Martin@hawaiicountv.gov> Subject:State v. Kenoi(Privilege Log in Discovery) Ms. Puu, Are you asserting the attorney/client privilege does not apply to these communications? If so,could you please identify the basis for this belief? As the attorneys for the County and its employees,we do not have the power to waive the attorney/client privilege. However,we will forward your inquiry to the privilege holders for their respective consideration. If you have any questions or concerns, please do not hesitate to contact me. From: Puu, Michelle M [mailto:michelle.m.puu@thawaii.gov] Sent: Monday,August 01, 2016 4:47 PM To: Stebbins, Molly Cc: Takata, Kevin K Subject: State v. Kenoi (Privilege Log in Discovery) : Aloha Molly: y It seems that your office asserted Attorney-Client privilege over 40 emails involving various parties in the Discovery provided in June 2015(please see attached Privilege Log for your reference). 1 At your earliest convenience,please let me know whether your office intends to persist in this assertion of 0 privilege for purposes of the instant criminal proceeding and I will proceed accordingly. Otherwise,please provide these emails as soon as possible. Please don't hesitate to contact me should you have any questions or concerns about this correspondence. Thanks so much for your time and attention to this matter. I truly appreciate your cooperation. --.lichefie Michelle M.L. Puu, Esq. Deputy Attorney General Department of the Attorney General Criminal Justice Division 333 Queen Street, Suite 200 Honolulu, Hawaii 96813 (808)586-1160 4110 3 it � l i NEIL ABERCROMBIE STATE OF HAWAII GOVERNOR SHANTSUTSUI OFFICE OF THE LIEUTENANT GOVERNOR CHERYLKAKAzUPARK LIFLTEVANi GOVERNOR OFFICE OF INFORMATION PRACTICES DIRECTOR ER NO.1 CAPITOL DISTRICT BUILDING 250 SOUTH HOTEL STREET,SUITE 107 HONOLULU,HAWAI'I96813 Telephone: (808)586-1400 FAX: (808)586-1412 E-MAIL: oip(Eihawaii.Oov www.oip.hawaii.Oov The Office of Information Practices (OIP) is authorized to issue decisions and advisory opinions under the Uniform Information Practices Act (Modified), Hawaii Revised Statutes (HRS) chapter 92F (2012) (the UIPA), pursuant to HRS §§ 92F-27.5 and 92F-42 (2012), and Hawaii Administrative Rules (HAR) chapter 2-73 (2012). DECISION • Requester: Mr. Carroll Cox Agency: Department of Planning and Permitting City and County of Honolulu Date: June 5, 2014 Subject: Denial of Access to a Corporation Counsel Opinion (APPEAL 11-26) REQUEST FOR DECISION Requester asked whether the Department of Planning and Permitting, City & County of Honolulu (DPP), is required by the UIPA to disclose an opinion issued by the Department of the Corporation Counsel, City & County of Honolulu (Corporation Counsel), regarding the permitted uses of the "Waikele Caves" and upon which DPP relied to issue a Notice of Violation. Unless otherwise indicated, this determination is based solely upon the facts presented in an e-mail from Requester to OIP dated April 25, 2011 that included an e-mail from DPP's former Director of Planning and Permitting, Mr. David K. Tanoue, dated April 25, 2011; a letter from DPP to OIP dated May 10, 2011; a memorandum from the Corporation Counsel to Mr. Tanoue dated March 12, 2010 (Memorandum) that DPP provided to OIP for its in camera review; and a telephone conversation with DPP's Director, Mr. George Atta, on April 3, 2014. 110 OIP Op. Ltr. No. F14-01 EXHIBIT " C " QUESTIONS PRESENTED 1. Whether the Memorandum is subject to mandatory disclosure under section 92F-12(a)(1) or (2), HRS. 2. Whether the Memorandum contains communications protected by the attorney-client privilege, as recognized under the UIPA's exceptions to public disclosure of government records at section 92F-13(2), (3), and (4), HRS. 3. Whether any privilege protecting confidential communications from disclosure was waived by OIP's in camera review. BRIEF ANSWERS 1. No. The Memorandum is not subject to mandatory disclosure under section 92F-12(a)(1) or (2), HRS. 2. Yes. The Memorandum contains confidential communications between DPP and the Corporation Counsel that are protected from disclosure by the attorney-client privilege under Rule 503, Hawaii Rules of Evidence (HRE), and, as such, are also protected from public disclosure under section 92F-13(2), (3) and (4), ® HRS. 3. No. DPP did not voluntarily waive the attorney-client privilege, which protects the Memorandum from disclosure under Rule 503, HRE, because DPP was required by the UIPA to provide the Memorandum to OIP for an in camera review. Moreover, the mandatory disclosure of the Memorandum by DPP to OIP for an in camera review is, in itself, a privileged communication under Rule 502, HRE, and not subject to waiver under Rule 511,HRE. Consequently, the Memorandum is protected from disclosure under OIP's administrative rules at subsections 2-73-15(c) and (d), HAR, and the UIPA at section 92F-13(2) and (4), HRS. FACTS Requester filed a complaint with DPP that asked DPP to investigate alleged unauthorized uses of the "Waikele Caves." Requester was subsequently informed by DPP that it would seek an opinion from the Corporation Counsel regarding the complaint. DPP thereafter issued a Notice of Violation (NOV) dated October 4, 2010 to the "Department of the U.S. Navy, Naval Facilities Engineering Command Pac" (Navy) and to the Ford Island Ventures, LLC (FIV), as the owner and lessee, respectively, for a zoning violation on property located at 94-990 Pakela Street (Property) and within a district zoned for preservation use. The Carroll Cox Show: 1080 AM, Podcast, Sunday, April 24, 2011,http://carrollcox.com/show042411.htm; NOV, http://carrollcox.com/Documents/Waikele%20NOV%20803788.pdf (both last • 2 OIP Op. Ltr. No. F14-01 visited May 1, 2014). In a letter dated December 3, 2010 from Deputy Corporation Counsel Don S. Kitaoka to Messrs. Edward E. Case, Esq., and R.G. Ress, Office of Counsel, Naval Facilities Engineering Command Pacific, the Navy was informed that the NOV was withdrawn because FIV's lease of the Property was for the express purpose of furthering a federal interest. http://carrollcox.com/Documents/Waikele%20NOV%20withdrawal.pdf(last visited May 1, 2014). Requester requested from DPP a copy of the Corporation Counsel opinion it relied on to issue the NOV. In an e-mail dated April 25, 2011, DPP denied Requester's request for a copy of the Corporation Counsel's opinion relating to the land use jurisdiction of the "Waikele Gulch."' DPP's e-mail of April 25, 2011 stated: This is to confirm that your request for a copy of the Corporation Counsel's opinion to the department relating to the land use jurisdiction of the Waikele Gulch is respectfully denied. The opinion from the corporation counsel is confidential attorney-client communication between the department and its attorney. In response to DPP's claim that the Memorandum is a confidential attorney- client communication, Requester stated in his e-mail dated April 25, 2011 that the Memorandum should be disclosed because "[t]here are no lawsuits" and "no • enforcement action" and that there are "hundreds of Corporation Counsel opinions regarding land use laws on file and available for viewing by the public." DPP reaffirmed its position in a letter to OIP dated May 10, 2011, that the Corporation Counsel's opinion was a "confidential attorney-client communication" and further stated as follows: Moreover, this opinion was prepared in anticipation of the landowner taking an adversarial position against the City. For your information, the City has in the past released selected opinions by [the Corporation Counsel]; however, in these limited situations, the agency-clients consented to the release. The DPP will not consent to the release of the confidential opinion by our attorney. 1 To the extent that DPP responded to the Requester's document request related to the "Waikele Caves" by referring to the "Waikele Gulch," OIP understands that the "Waikele Caves" are within the land parcel DPP identified as the "Waikele Gulch." The Waikele Gulch land parcel appears to be the location where an explosion and fire occurred inside an underground storage bunker that killed five employees of Donald Enterprises while they were taking apart commercial grade fireworks on April 8, 2011. Hawaii News Now, "State Completes Investigation Into Waikele Bunker Explosion" (September 30, 2011), http://www.hawaiinewsnow.com/storv/15592160/state-completes-investigation-into- waikele-bunker-explosion (last visited May 1, 2014). The NOV was dated October 4, 2010, prior to the explosion and fire that occurred on April 8, 2011. 3 OIP Op. Ltr. No. F14-01 • In response to OIP's request for an in camera review of the Corporation Counsel's opinion, DPP provided a copy of the Memorandum that included a heading identifying it as a "CONFIDENTIAL AND PRIVILEGED ATTORNEY- CLIENT COMMUNICATION DO NOT CIRCULATE." DISCUSSION I. The Memorandum is Not Subject to Mandatory Disclosure Under the UIPA. The UIPA prescribes various categories of government records that shall be made available for public disclosure, notwithstanding any UIPA exception to such disclosure. Section 92F-12, HRS, requires, as a matter of law, the mandatory disclosure of any agency statement of general policy or interpretation of general applicability and also any final opinion made in the adjudication of cases, as it states in pertinent part: §92F-12 Disclosure Required. (a) Any other provision in this chapter to the contrary notwithstanding, each agency shall make available for public inspection and duplication during regular business hours: • (1) Rules of procedure, substantive rules of general applicability, statements of general policy, and interpretations of general applicability adopted by the agency; (2) Final opinions, including concurring and dissenting opinions, as well as orders made in the adjudication of cases, except to the extent protected by section 92F- 13(1)[.] HRS § 92F-12(a)(1), (2) (2012). See, e.g., OIP Op. Ltr. No. 90-34 (discussing Department of Public Safety Manual containing interpretative statements that explain, clarify or implement existing statutes or regulations); OIP Op. Ltr. No. 90- 40 at 1 (concluding that lease rent arbitration awards by an agency constituted "final opinions" or "orders made in adjudication of cases"). Upon an in camera review of the Memorandum, OIP confirmed DPP's assertion that the Memorandum is not a statement of general policy nor is it an interpretation of general applicability adopted by DPP, as the Memorandum was limited to the facts presented and only related to the Waikele Gulch. Additionally, the Memorandum was not a final opinion made by DPP while acting in a quasi- 4 OIP Op. Ltr. No. F14-01 1 • judicial or adjudicatory capacity that determined the legal rights, duties, privileges or other legal interests of specific persons. See OIP Op. Ltr. No. 90-40 at 9-11. Consequently, OIP finds disclosure of the Memorandum is not required under section 92F-12(a)(1) and (2), HRS, or any other provision of the UIPA requiring mandatory disclosure as a matter of law. II. The Memorandum Contains Confidential Communications Subject to the Attorney-Client Privilege that are Protected from Public Disclosure by the UIPA. The attorney-client privilege is codified by chapter 626, HRS, in Rule 503, HRE, which provides that "[a] client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client," where the confidential communications were made between the client and the client's attorney or their respective representatives. Rule 503(b), HRE; see Save Sunset Beach Coalition v. City and County of Honolulu, 102 Haw. 465, 484-85, 78 P.3d 1, 21-22 (2003) (citing Sapp v. Wong, 62 Haw. 34, 38, 609 P.2d 137, 140 (1980), which described how an attorney-client communication becomes privileged).2 In Opinion Letter Number 91-23, OIP discussed how government records • covered by the attorney-client privilege are treated under the UIPA as follows: The attorney-client privilege was developed to promote full and complete freedom of consultation between clients and their legal advisors without fear of compelled disclosure, except with the client's consent. The privilege is applicable to communications from the 2 In holding that a county council's executive session minutes need not be disclosed under the UIPA, the Hawaii Intermediate Court of Appeals (ICA) also cited the importance of the attorney-client privilege by stating: The ability of a public body to confer freely with its counsel is so critical that even where the open meeting law did not specifically provide for such protection, one court has held that"[w]hile exceptions to right-to-know legislative provisions are to be strictly construed, the right of a public agency privately to consult legal counsel on the settlement or avoidance of litigation is an activity properly excepted from the right-to-know acts. A public agency should neither be given an advantage, nor placed at a disadvantage in litigation." County of Kauai vs. OIP, 120 Haw. 34, 45, 200 P.3d 403, 414(2009), aff'd, No. 29059, Hawaii Supreme Court, 2009 WL 1783770 (2009) (citing ICA's dicta in 0 Ko'Olau v. Pacarro, 4 Haw.App. 304, 313-14, 666 P.2d 177, 184-84 (1983),which quoted Port of Seattle v. Rio, 16 Wn.App. 718, 724, 559 P.2d 18, 22 (1977)). III 5 OIP Op. Ltr. No. F14-01 • attorney to the client, as well as communications to the attorney from the client. This privilege is also unquestionably applicable to the relationship between government attorneys and government agencies and administrative personnel. The protection of communications made in confidence between an attorney and a governmental client serves an important public policy purpose. OIP Op. Ltr. No. 91-23 at 8-9 (citations omitted) (concluding that letters of advice and counsel by the Department of the Attorney General to the Environmental Council were protected from disclosure by the attorney-client privilege). Opinion Letter Number 91-23 determined that various UIPA exceptions to disclosure of government records recognize the attorney-client privilege. Section 92F-13(2), HRS, provides an exception for "[g]overnment records pertaining to the prosecution or defense of any judicial or quasi-judicial action to which the State or any county is or may be a party, to the extent that such records would not be discoverable" as under the attorney-client privilege. Section 92F-13(3), HRS, provides an exception for "[g]overnment records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function" such as the attorney-client privilege. Section 92F-13(4), HRS, ® excepts "[g]overnment records, which, pursuant to state or federal law. . . are protected from disclosure" as under the attorney-client privilege. OIP Op. Ltr. No. 91-23 at 8-9. In its letter dated May 10, 2011, DPP advised OIP that the Memorandum "was prepared in anticipation of the landowner taking an adversarial position against the City." OIP's in camera review of the Memorandum confirms that a legal analysis was provided by the Corporation Counsel to DPP, as its government client,3 for the purpose of determining DPP's powers, duties, privileges, immunities and liabilities in preparation for the prosecution or defense of an action in which DPP may be a party. Consequently, OIP concludes that the Memorandum contains confidential and privileged attorney-client communication under Rule 503, HRE, which is protected from public disclosure under section 92F-13(2), (3) and (4), HRS.4 3 The Corporation Counsel is the chief legal adviser and legal representative of all agencies of the City and County of Honolulu, according to section 5-203, the Revised Charter of the City and County of Honolulu. 4 Documents prepared by an attorney in anticipation of litigation are an attorney's work product and as such deemed a privileged matter not subject to discovery. Hawaii Rules of Civil Procedure Rule 26(b)(3) (1980); see also OIP Op.Ltr. No. 01-05 (concluding that a legal memorandum prepared by a deputy attorney general in • 6 OIP Op. Ltr. No. F14-01 • III. DPP's Disclosure of the Memorandum to OIP for In Camera Review did Not Operate as a Voluntary Waiver of the Attorney-Client 511, HRE, and is, in Itself, a Privileged Privilege Under Rule Communication Under Rule 502, HRE, Protected from Disclosure. Although the attorney-client privilege protecting the disclosure of information is provided by law, it can be voluntarily waived. OIP Op. Ltr. No. 91-23 at 9-10). If any privilege protecting a government record from public disclosure is found to have been waived, then the UIPA would require the disclosure of the record so long as no other exception applies. Rule 511, FIRE, recognizes that the waiver of a privilege protecting a confidential communication applies when the disclosure was voluntary but that the waiver does not apply when the disclosure itself was a privileged communication, and states: Rule 511 Waiver of privilege by voluntary disclosure. A person upon whom these rules confer a privilege against disclosure waives the privilege if, while the holder of the privilege, the person or the person's predecessor voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not • apply if the disclosure itself is a privileged communication. HRE Rule 511 (1993) (emphases added); see Save Sandy Beach Coalition v. City and County of Honolulu, 102 Haw. at 486, 78 P.3d. at 22 (rejecting the traditional test of waiver by inadvertent disclosure when Rule 511, HRE, provides that a disclosure must be voluntary). DPP has consistently asserted its attorney-client privilege over the Memorandum, and OIP is not aware of any conduct by DPP indicating any circumstance reflecting a voluntary waiver of its attorney-client privilege. In response to OIP's request for an in camera review, DPP provided the Memorandum which included the heading: "CONFIDENTIAL AND PRIVILEGED ATTORNEY- CLIENT COMMUNICATION DO NOT CIRCULATE." DPP's continued assertion of its attorney-client privilege evidenced its clear intent to not waive the privilege by complying with OIP's request for in camera review of the documents. While some courts have held that a client may waive the attorney-client privilege by voluntarily disclosing the confidential communication to the government as part of a government investigation of the client,5 DPP's disclosure anticipation of litigation was properly withheld under HRS § 92F-13(2)). While the work product privilege may alsobe applicable,it is unnecessary to resolve this case. 5 See In re Steinhardt Partners, L.P., 9 F.3d 230 (2d Cir. 1993) (involving a voluntary disclosure as part of SEC investigation);Pacific Pictures 111 7 OIP Op. Ltr. No. F14-01 0 here was mandated by law and was not voluntary, as will be further discussed below. Moreover, regardless of any waiver, the disclosure by DPP of the Memorandum to OIP for an in camera review was itself a privileged communication between DPP and OIP under Rule 502, HRE, and not subject to waiver under Rule 511, HRE. See Boston Auction Co., Ltd. vs. Western Farm Credit Bank, 925 F. Supp. 1478, 1481 (D. Haw. 1996) (holding that the release of attorney-client communications by a bank to the bank examiner was a privileged communication in its own right). Rule 502, HRE, recognizes a qualified privilege held by a person or entity to prevent the unauthorized disclosure of information that was required by law to be provided to a public agency. This rule further recognizes that the public agency receiving the information required by law to be provided to the agency similarly holds a qualified privilege to refuse the disclosure of the information it has received. Rule 502, HRE, states in relevant part: Rule 502 Required reports privileged by statute. A person, corporation, association, or other organization or entity, either public or private, making a return or report required by law to be made 1 has a privilege to refuse to disclose and to prevent any other person from disclosing the return or report, if the law requiring it to be made so provides. A public officer or agency to whom a return or report is • required by law to be made has a privilege to refuse to disclose the return or report if the law requiring it to be made so provides. . . . HRE Rule 502 (1993) (emphases added). The commentary to Rule 502, HRE, offers the following guidance: A number of Hawaii statutes requiring that reports be made or information be supplied incorporate provisions against unauthorized Corp.vs. USDC, 679 F.3d 1121 (9th Cir. 2012) (finding that an attorney did not assert the privilege nor redact (continued on next page) (continued from previous page) confidential information when offered the opportunity during government investigation). Cases involving disclosure in the course of a government investigation of the client are distinguishable because OIP is not conducting an investigation of DPP's actions arising from the matters discussed in the Memorandum, but is instead exercising its statutory obligation to "examine"DPP's records and to "rule" on DPP's assertion of the attorney-client privilege as the basis for its denial of access to the requested record under the UIPA. HRS § 92F-42(1) and (2). Thus, DPP provided the Memorandum to OIP for in camera review, not for the purpose of disclosing its substantive contents, but rather to allow OIP to assess DPP's assertion that the Memorandum is confidential under the attorney-client privilege. 0 8 OIP Op. Ltr. No. F14-01 • disclosure of such reports or information. This has the effect of creating a qualified privilege for the reporting party and for the recipient on the reporting party's behalf. HRE Rule 502 cmt. (1993) (emphases added). Section 92F-42, HRS, provides the statutory authority for OIP to require an agency to disclose the requested records as part of OIP's statutory duty to rule on an agency's compliance with the UIPA by examining the agency's records. HRS § 92F- 42 (2012). Section 92F-42, HRS, enumerates the various powers and duties of OIP, stating in relevant part: §92F-42 Powers and duties of the office of information practices. The director of the office of information practices: (1) Shall, upon request, review and rule on an agency denial of access to information or records, or an agency's granting access; (4) May conduct inquiries regarding compliance by an agency and investigate possible violations by any agency; • (5) May examine the records of any agency for the purpose of paragraph (4) and seek to enforce that power in the courts of this State; (9) Shall review the official acts, records, policies, and procedures of each agency; (18) Shall take action to oversee compliance with part I of chapter 92 by all state and county boards[.] HRS § 92F-42 (2012). In order to conduct inquiries regarding compliance by an agency and investigate possible violations by any agency regarding the UIPA and Sunshine Law, section 92F-42(5), HRS, specifically gives DIP the judicially enforceable power to examine the records of any agency.6 6 OIP has the judicially enforceable power to examine agency records under both the UIPA and the Sunshine Law. The Sunshine Law, Part I of chapter 92, HRS,was enacted in 1975, and the Department of the Attorney General was given the authority to enforce it. However, it was apparent from the original language of the Sunshine Law that 9 DIP Op. Ltr. No. F14-01 While giving OIP the power to examine records, the UIPA also requires OIP to be subject to the same restrictions on disclosure to which the agency from whom the records have been received is subject. As section 92F-19(b), HRS, specifies, when an agency is authorized to provide government records to another agency, the receiving agency"shall be subject to the same restrictions on disclosure of the records as the originating agency." HRS § 92F-19(b) (2012). Pursuant to its statutory authority under HRS §92F-42(12), OIP adopted administrative appeal rules under chapter 2-73, HAR (effective 2012), which prescribe the procedures for appealing an agency's denial of requested documents, including rules authorizing OIP to conduct an in camera review and requiring OIP to maintain the confidentiality of the documents being reviewed.? Section 2-73-15, HAR, authorizes OIP to require agencies to provide documents for in camera review, while providing for safeguards from disclosure, by stating in relevant part: §2-73-15 Other procedures for appeal. it was not designed to accommodate complaints from the public, except in a court setting. OIP did not exist at the time, and was not created until 1988 when the UIPA was enacted. • (continued on next page) (continued from previous page) In 1998, the Legislature increased OIP's open government responsibilities by requiring OIP to administer the Sunshine Law as well as the UIPA. Act 137, SLH 1998. Besides specifying in section 92-1.5, HRS, that OIP would be administering the Sunshine Law, OIP's powers enumerated in the UIPA were increased by the addition of section 92F- 42(18), HRS, which requires OIP to oversee compliance with the Sunshine Law. By extending the powers set forth in the UIPA to also apply to OIP's Sunshine Law duties, the Legislature empowered OIP to resolve Sunshine Law complaints from the public, thus finally giving the public a mechanism to ensure compliance with the Sunshine Law without the requirement of filing a court action. 7 Even before the adoption of chapter 2-73, HAR, in 2012, OIP's legal authority to require an in camera review of documents was unquestioned. In OIP Opinion Letter Number 02-01 at 25, OIP required the University of Hawaii to provide a settlement agreement for OIP's in camera review and opined that"under chapter 92F, Hawaii Revised Statutes, agencies have a duty to turn documents over to OIP for review." Similarly, in OIP Opinion Letter Number 04-07, footnote 3, OIP cited section 92F-42(5), HRS, as the statutory authority for OIP to conduct an in camera review of an evaluation of a University of Hawaii President. Notably, in County of Kauai vs. OIP, 120 Haw. 34, 200 P.3d 403 (2009), affd, No. 29059, Hawaii Supreme Court, 2009 WL 1783770 (2009), the ICA had the opportunity to question OIP's authority to conduct an in camera review of an agency's executive meeting minutes, but did not do so, nor did it find that the Kauai County Council waived its attorney-client privilege by providing the minutes to OIP for in camera review. • 10 OIP Op. Ltr. No. F14-01 • (c) OIP may require any party to submit to OIP the original or a copy of one or more documents necessary for its ruling, including government records or minutes at issue in an appeal. OIP may examine the documents in camera as necessary to preserve any claimed exception, exemption, or privilege against disclosure. (d) If OIP requires the agency to provide, for OIP's in camera review, documents that the agency asserts are protected by the attorney-client privilege as well as the relevant exception or exemption to disclosure, OIP shall: (1) Review the record submitted solely for the purpose of assessing application of the claimed exception or exemption; (2) Return or destroy the record as directed by the agency upon issuance of a final decision of the appeal; and (3) Prevent the voluntary disclosure of the record or information contained in the record. Upon request, OIP may allow an agency to provide such a record in redacted form for OIP's in camera review, if OIP determines that application of the exception or exemption may be determined by review of the redacted record. • HAR § 2-73-15. Because DPP was required to comply with OIP's legal authority to conduct an in camera review of the Memorandum so that OIP could determine the applicability of any exceptions to disclosure in the UIPA, DPP did not voluntarily waive its attorney-client privilege under Rule 511, HRE, by disclosing the Memorandum to OIP for in camera review. Moreover, the required disclosure was itself a qualified privileged communication between DPP and OIP under Rule 502, HRE, and would not be subject to waiver under Rule 511, HRE. See Boston Auction Co., Ltd. vs. Western Farm Credit Bank, 925 F. Supp. 1478, 1481 (D. Haw. 1996). As a privileged communication under Rule 502, HRE, the UIPA allows the Memorandum to be withheld from public disclosure. To the extent that Rule 502, HRE, would not allow the Memorandum to be discovered during the prosecution or defense of any judicial action in which DPP is or may be a party, section 92F-13(2), HRS, would likewise not require the public disclosure of the Memorandum as it would not be discoverable in the judicial action. Additionally, because Rule 502, HRE, as codified under chapter 626, HRS, is a state law preventing the disclosure of the Memorandum, section 92F-13(4), HRS, would similarly protect the public disclosure of the Memorandum as being protected from disclosure under state law. 11 OIP Op. Ltr. No. F14-01 OIP therefore concludes that DPP did not voluntarily waive its attorney- client privilege when it was required to disclose the Memorandum to OIP for an in camera review. The Memorandum is also protected from disclosure under the HRE Rule 502 privilege for reports required by statute as well as OIP's appeal rules requiring records provided for in camera review to be kept confidential under section 2-73-15(d), HAR. Thus, OIP finds there was no waiver by DPP of the attorney-client privilege, and the Memorandum was properly withheld under the UIPA, sections 92F-13(2) and (4), HRS. CONCLUSION The Memorandum is not an interpretation of general applicability adopted by DPP or a final opinion rendered by DPP in an adjudicatory capacity, and thus, is not subject to mandatory disclosure under section 92F-12(a)(1) and (2), HRS. During an in,camera review of the Memorandum, OIP determined that it contains confidential communications protected from disclosure by the attorney- client privilege under Rule 503, HRE, and was properly withheld under the UIPA pursuant to section 92F-13 (2), (3), and (4), HRS. Because the Memorandum was required by the UIPA to be provided by DPP to OIP for in, camera review, DPP did not voluntarily waive its attorney-client • privilege under Rule 511, HRE. Moreover, regardless of any waiver, the required disclosure of the Memorandum by DPP to OIP was itself a privileged communication under Rule 502, HRE, that can be withheld under section 92F-13 (2) and (4), HRS. Therefore, the Memorandum may be withheld from public disclosure under the UIPA. RIGHT TO BRING SUIT Requester is entitled to seek assistance from the courts when Requester has been improperly denied access to a government record. HRS § 92F-42(1). An action for access to records is heard on an expedited basis and, if Requester is the prevailing party, Requester is entitled to recover reasonable attorney's fees and costs. HRS §§ 92F-15(d) and (f) (2012). For any lawsuit for access filed under the UIPA, Requester must notify OIP in writing at the time the action is filed. HRS § 92F-15.3 (2012). This opinion constitutes an appealable decision under section 92F-43, HRS. An agency may appeal an OIP decision by filing a complaint within thirty days of the date of an OIP decision in accordance with section 92F-43, HRS. The agency shall give notice of the complaint to OIP and the person who requested the decision. HRS § 92F-43(b) (2012). OIP and the person who requested the decision are not required to participate, but may intervene in the proceeding. Id. The court's review 411/ 12 OIP Op. Ltr. No. F14-01 • is limited to the record that was before OIP unless the court finds that extraordinary circumstances justify discovery and admission of additional evidence. HRS § 92F-43(c). The court shall uphold an OIP decision unless it concludes the decision was palpably erroneous. Id. A party to this appeal may request reconsideration of this decision within ten business days in accordance with section 2-73-19, HAR. This letter also serves as notice that OIP is not representing anyone in this request for opinion. OIP's role herein is as a third party neutral. OFFICE OF INFORMATION PRACTICES Winfred Pong Staff Attorney APPROVED: • Cheryl Kakazu Park Director 411 13 OIP Op. Ltr. No. F14-01 • ® . 'FILED DOUGLAS S. CHIN 6465 Attorney General of Hawaii p� KEVIN K.TAKATA 3763 2016 Ilia 1V, : )4 1�(/) Supervising Deputy Attorney General L.CH NEN.CLERK Department of the Attorney General THIRD COURT STAT' ` '{aMI! State of Hawaii 333 Queen Street, Suite 200 Honolulu,Hawaii 96813 Telephone: (808)586-1160 Facsimile: (808)586-1375 Kevin.K.TakataOhawaii.gov Attorneys for the State of Hawaii IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII STATE OF HAWAII, CR.NO. 16 - 1 - 0085 v. INDICTMENT WILLIAM P. KENOI, (Hilo) Defendant. The Grand Jury charges: COUNT 1 (C16* /(A.G.No. 2015-1118) On or about May 11,2011, to and including October 20, 2011, in the County and State of Hawaii,WILLIAM P. KENOI, as one scheme and/or continuous course of conduct,did obtain or exert unauthorized control over the property of the County of Hawaii,the value of which exceeds Three Hundred Dollars($300.00),with intent to deprive the County of Hawaii of the property, thereby committing the offense of Theft in the Second Degree in violation of Sections 708-831(1)(b) and 708-830 of the Hawaii Revised Statutes. The offense alleged herein is based on misconduct in office by WILLIAM P.KENOI,a 411 EXHIBIT " D ® ® . public officer or employee, at any time when WILLIAM P.KENOI was in public office or employment or within two years thereafter. Section 701-108(3)(b)of the Hawaii Revised Statutes. COUNT 2: (C16* /(A.G. No.2015-1118-1) On or about January 17, 2013, to and including June 28,2013, in the County and State of Hawaii, WILLIAM P. KENOI, as one scheme and/or continuous course of conduct,did obtain or exert unauthorized control over the property of the County of Hawaii, the value of which exceeds Three Hundred Dollars($300.00), with intent to deprive the County of Hawaii of the property, thereby committing the offense of Theft in the Second Degree in violation of Sections 708-831(1)(b) and 708-830 of the Hawaii Revised Statutes. The offense alleged herein is based on misconduct in office by WILLIAM P. KENOI, a public officer or employee, at any time when WILLIAM P. KENOI was in public office or employment or within two years thereafter. Section 701-108(3)(b) of the Hawaii Revised Statutes. COUNT 3: (C16* /(A.G. No. 2015-1118-2) On or about June 30, 2014, in the County and State of Hawaii, WILLIAM P. KENOI did obtain or exert unauthorized control over the property of the County of Hawaii,the value of which exceeds One Hundred Dollars ($100.00), with intent to deprive the County of Hawaii of the property, thereby committing the offense of Theft in the Third Degree in violation of Sections 708-832(l)(a) and 708-830 of the Hawaii Revised Statutes. The offense alleged herein is based on misconduct in office by WILLIAM P.KENOI, a public officer or employee, at any time when WILLIAM P. KENOI was in public office or employment or within two years thereafter. Section 701-108(3)(b) of the Hawaii Revised Statutes. 2 41 , 4111 • • , COUNT 4: (C16* /(A.G. No. 2015-1118-3) On or about November 16, 2014, in the County and State of Hawaii, WILLIAM P. KENOI did obtain or exert unauthorized control over the property of the County of Hawaii,the value of which exceeds One Hundred Dollars ($100.00), with intent to deprive the County of Hawaii of the property, thereby committing the offense of Theft in the Third Degree in violation of Sections 708-832(1)(a)and 708-830 of the Hawaii Revised Statutes. The offense alleged herein is based on misconduct in office by WILLIAM P. KENOI, a • public officer or employee, at any time when WILLIAM P. KENOI was in public office or employment or within two years thereafter. Section 701-108(3)(b) of the Hawaii Revised Statutes. COUNT 5: (C16* /(A.G. No. 2015-1118-4) On or about October 28, 2011, in the County and State of Hawaii, WILLIAM P. KENOI did knowingly falsely make a written instrument which is or purports to be a government record or a true copy thereof and/or did knowingly make a false entry in a written instrument which is or purports to be a government record or a true copy thereof,to wit, an entry in a Purchasing Card Transaction Summary that described a purchase on October 20, 2011, at the Hilo Yacht Club as an Office Strategic Planning Luncheon,thereby committing the offense of Tampering with a Government Record in violation of Section 710-1017(1)(a)of the Hawaii Revised Statutes. The offense alleged herein was not discovered prior to April 14,2015, by either the County of Hawaii or by a person who had a legal duty to represent the County of Hawaii. Section 701-108(3)(a)of the Hawaii Revised Statutes. The offense alleged herein is based on misconduct in office by WILLIAM P.KENOI, a public officer or employee, at any time when WILLIAM P. KENOI was in public office or 3 ® ' ' 1 employment or within two years thereafter. Section 701-108(3)(b)of the Hawaii Revised Statutes. COUNT 6: (C16* /(A.G.No. 2015-1118-5) On or about March 28,2013, in the County and State of Hawaii, WILLIAM P. KENOI did knowingly falsely make a written instrument which is or purports to be a government record or a true copy thereof and/or did knowingly make a false entry in a written instrument which is or purports to be a government record or a true copy thereof,to wit, an entry in a Purchasing Card Transaction Summary that described a purchase on March 17, 2013, at Longs as being for Sam Choy's Poke Contest Volunteer Appreciation Event,thereby committing the offense of Tampering with a Government Record in violation of Section 710-1017(1)(a)of the Hawaii Revised Statutes. The offense alleged herein was not discovered prior to April 14,2015, by either the County of Hawaii or by a person who had a legal duty to represent the County of Hawaii. Section 701-108(3)(a) of the Hawaii Revised Statutes. The offense alleged herein is based on misconduct in office by WILLIAM P. KENOI, a public officer or employee, at any time when WILLIAM P.KENOI was in public office or employment or within two years thereafter. Section 701-108(3)(b) of the Hawaii Revised Statutes. COUNT 7: (C16* /(A.G. No. 2015-1118-6) On or about July 28, 2014, in the County and State of Hawaii, WILLIAM P. KENOI did knowingly falsely make a purported government record and/or falsely make an entry in a government record or a true copy thereof,to wit, an entry in a Purchasing Card Transaction Summary that described a purchase on June 30,2014,at the Volcanoes House Restaurant as a Luncheon with U.S. Conference of Mayors visitors,thereby committing the offense of ® 4 , 1 0 i . . . , Tampering with a Government Record in violation of Section 710-1017(1)(a) of the Hawaii Revised Statutes. The offense alleged herein was not discovered prior to April 14, 2015, by either the County of Hawaii or by a person who had a legal duty to represent the County of Hawaii. Section 701-108(3)(a) of the Hawaii Revised Statutes. The offense alleged herein is based on misconduct in office by WILLIAM P. KENOI, a public officer or employee, at any time when WILLIAM P. KENOI was in public office or employment or within two years thereafter. Section 701-108(3)(b) of the Hawaii Revised Statutes. COUNT 8: (C16* /(A.G.No. 2015-1118-7) On or about February 6, 2015, in the County and State of Hawaii, WILLIAM P. KENOI did intentionally, knowingly, or recklessly make, under an oath required and/or authorized by law,a false statement which he did not believe to be true, thereby committing the offense of False Swearing in violation of Section 710-1062 of the Hawaii Revised Statutes. The offense alleged herein was not discovered prior to April 14, 2015, by either the County of Hawaii or by a person who had a legal duty to represent the County of Hawaii. Section 701-108(3)(a)of the Hawaii Revised Statutes. The offense alleged herein is based on misconduct in office by WILLIAM P. KENOI, a public officer or employee, at any time when WILLIAM P. KENOI was in public office or employment or within two years thereafter. Section 701-108(3)(b) of the Hawaii Revised Statutes. Dated: Hilo, H. .ai'i, March 23, 2016. A TRUE BILL 4 !�'�•TA FOREMAN Deputy Attorney General • State of Hawaii 5 1I • IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII STATE OF HAWAI`I , Cr.No. 16-1-0085 NOTICE OF HEARING MOTION vs. WILLIAM P.KENOI, Defendant. NOTICE OF HEARING MOTION TO: Kevin K. Takata, Esq. Todd W. Eddins, Esq. Michelle M. Puu, Esq. 1003 Bishop Street, Suite 2140 DEPT. OF THE ATTORNEY GENERAL Honolulu, Hawai`i 96813 . State of Hawai`i Attorney for Defendant • 425 Queen Street Honolulu,Hawai`i 96813 Attorneys for State of Hawai`i foregoing NOTICE IS HEREBY GIVEN that theg g motion shall come for hearing before the Honorable Dexter D. Del Rosario, Judge of the above-entitled court, in his courtroom located at Hale Kaulike, 777 Kilauea Avenue, Hilo,Hawai`i, 96720, on September 16, 2016, at 1:00 p.m., or as soon thereafter as counsel may be heard. Dated: Hilo, Hawai`i, August 30,2016. CO T OF HA offi Byditlik --Th STE RN D. ► T�� Deputyoration ounsel Its attorney 110 1 SIN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII STATE OF HAWAII , Cr.No. 16-1-0085 CERTIFICATE OF SERVICE vs. WILLIAM P. KENOI, Defendant. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing document was served upon the following by mailing the same, postage prepaid, on August 30, 2016: ® Kevin K. Takata, Esq. Michelle M. Puu, Esq. DEPT. OF THE ATTORNEY GENERAL State of Hawaii 425 Queen Street Honolulu, Hawai`i 96813 Attorneys for State of Hawai`i Todd W. Eddins,Esq. 1003 Bishop Street, Suite 2140 Honolulu,Hawai`i 96813 Attorney for Defendant Dated: Hilo,Hawai`i, August 30, 2016. COUNT -,OF HAW:I`I, Defendant 1111111 By 7 ST VEN D. ' USS Deputy :Torati — unsel Its attorney 110 2 I I I . DOUGLAS S. CHIN 6465 ' F1 ST CIRCUIT COORTi Attorney General ATI: HAWAII: • ED KEVIN K. TAKATA 3763 - Supervising Deputy Attorney General D1S SEP 1.2 AH .,_ 2 MICHELLE M.L. PUU 7888 „ Deputy Attorney General Department of the Attorney s OFFido N. M1YAMA General, State of Hawai'i r.1 EAK 333 Queen Street, Suite 200 Honolulu, Hawai'i 96813 Telephone: (808) 586-1160 Facsimile: (808) 586-1375 Criminal.Justice0 hawaii.eov Attorneys for the State of Hawai'i IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAI'I STATE OF HAWAI'I, CR. NO. 16-1-0085 v. COUNTS I-II: THEFT IN THE SECOND DEGREE • WILLIAM P. KENOI COUNTS III-IV: THEFT IN THE THIRD DEGREE Defendant. COUNTS V-VII: TAMPERING WITH A GOVERNMENT RECORD COUNT VIII: FALSE SWEARING STATE'S MEMORANDUM IN OPPOSITION TO COUNTY OF HAWAII'S MOTION TO QUASI-i SUBPOENA SEEKING ATTORNEY/CLIENT PRIVILEGED MATERIAL AND FOR AN ORDER REQUIRING THE RETURN OR DESTRUCTION OF PRIVILEGED MATERIAL INADVERTENTLY DISCLOSED; DECLARATION OF KEVIN K. TAKATA; EXHIBITS 1-3; CERTIFICATE OF SERVICE HEARING DATE: September 16, 2016 TIME: 1:00 p.m. 1111 JUDGE: Hon. Dexter D. Del Rosario 661511 I.DOC • STATE'S MEMORANDUM IN OPPOSITION TO COUNTY OF HAWAII'S MOTION TO QUASH SUBPOENA SEEKING ATTORNEY/CLIENT PRIVILEGED MATERIAL AND FOR AN ORDER REQUIRING THE RETURN OR DESTRUCTION OF PRIVILEGED MATERIAL INADVERTENTLY DISCLOSED COMES NOW, the STATE OF HAWAII, by and through its attorneys undersigned, and hereby submits its Opposition to County of Hawaii's Motion to Quash Subpoena Seeking Attorney/Client Privileged Material and for an Order Requiring the Return or Destruction of Privileged Material Inadvertently Disclosed, filed on August 30, 2016. DATED: September 12, 2016, Honolulu, Hawaii. By L' KEVIN K. TAKATA Supervising Deputy Attorney General State of Hawaii • MICHELLE M.L. PUU Deputy Attorney General State of Hawai' • 66154 I I.DOC I. INTRODUCTION County of Hawai'i Corporation Counsel ("County Attorneys") seek to prevent disclosure of 40 emails relevant to the criminal prosecution of William P. Kenoi ('`Defendant") under the guise of attorney-client privilege.' County Attorneys bear the burden of proof in establishing grounds for this privilege. However in their assertion, they failed to substantiate the fundamental legal requirements for the privilege. County Attorneys plainly assert the privilege and deny the applicability of any exception absent factual support for these propositions. First, County Attorneys failed to reveal whether any Client, the exclusive holder of the privilege, has actually asked to exercise this right. Second, they have not shown whether any of these 40 emails involve a request or response for legal advice. Third, each of the 40 secreted emails are addressed and copied to multiple individuals and originate from a variety of senders. This practice strongly suggests that these communications were not made with any reasonable expectation of maintaining attorney-client confidentiality.2 Finally, County Attorneys neglected to factually demonstrate that privilege exceptions do not apply to the 40 emails at issue. H. STATEMENT OF FACTS County Attorneys3 have affirmed their representation of every former and current County employee throughout the pendency of the instant case and underlying criminal investigation. See Declaration of Kevin K. Takata. As a result, County Subpoenas were issued by the State to the County of Hawai'i Mayor's Office and Department of Finance requesting emails relating to the Defendant's pCard usage. See Exhibits 1 &2. 2 See Exhibit A(Attachment to Subpoena, 'Attorney/Client Privilege Log', Dated June 10,2015). 3 The Corporation Counsel is appointed by the Defendant. The Assistant and Deputies within the office serve co-terminously with the Defendant. See Hawaii County Charter,Chapter 5,Section 6-5.6; Section 6- ® 5.2. 661541_1.DOC 2 Attorneys have been involved in the review and response of the subpoenas issued to County Departments, and has been present at all investigative interviews of County employees. Id. County attorneys also instructed the State to direct any and all correspondence intended for current and former County employee witnesses to the County Attorneys. Id. On May 4, 2015, the State proffered subpoenas to the County of Hawaii, Office of the Mayor and Department of Finance. See Exhibits 1 & 2. These subpoenas were received by County of Hawai'i Corporation Counsel, Molly Stebbins. Id. In response, thousands of pages of documents were provided by County Attorneys to the State. At the end of the section labeled "Mayors Emails,"was a two page Privilege Log. See Exhibit A (Attachment to Subpoena, 'Attorney/Client Privilege Log'). The State inquired as to whether County Attorneys would be persisting in the 1111 privilege in light of the pendency of this criminal trial. Simultaneously, a Subpoena Duces Tecum was issued seeking the 40 emails. III. ARGUMENT A. COUNTY ATTORNEYS BEAR THE BURDEN OF ESTABLISHING GROUNDS FOR THE PRIVILEGE In order to invoke the attorney-client privilege, Hawaii law requires "the party asserting it must establish that the communication occurred in the manner as follows: (1) where legal advice of any kind is sought(2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client. (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived." Sapp v. Wong, 62 Haw. 34, 38 (1980) (citing 8 Wigmore, Evidence § 2292 (McNaughton Rev.1961)). The law recognizes the importance of the privilege but does not ignore that • 66154U.DOC 3 ithe "scope of its operation... must be assiduously heeded." Sapp v. Wong. 62 Haw. 34, 38 (1980) citing E. v. E., 76 Misc. 2d, 2 (1973). Courts "weigh the competing policies of insuring the right of every person to freely confer and confide in a lawyer and of protecting the interests of a greater class of clients the public in the administration of justice." Sapp v. Wong, 62 Haw. 34, 39 (1980). Proper application "requires preliminary judicial inquiry into the existence and validity of the privilege and the burden of establishing the privilege rests on the claimant." Id. citing United States v. Gurtner,474 F.2d 297 (9`I' Cir., 1973). ). "Any other rule would `foreclose meaningful inquiry into the existence of the relationship, and any spurious claims could never be exposed."' Sapp v. Wong, 62 Haw. 34, 38-39, 609 P.2d 137, 140 (1980) In short, the mere involvement of an attorney in a conversation does not automatically make the content of that discussion confidential and privileged. Sapp at II/ 39. Dogmatic and unproven claims of privilege, such as those that have been made by the County Attorneys, are insufficient. Id. What is required is for the claimant, whoever that may be in this case, to provide factual support for the basis of the privilege. Id. B. THE COUNTY HAS FAILED TO IDENTIFY ANY CLIENT WHO HAS EXPRESSLY EXERCISED HIS OR HER RIGHT TO INVOKE THE ATTORNEY-CLIENT PRIVILEGE AS TO ANY OF THESE 40 EMAILS Assertion of the attorney-client privilege rests firmly with the client. See Hawaii Rules of Evidence, Rule 503 (b) & (c). County Attorneys have not stated which Client, if any, is actually persisting in assertion of the privilege in this criminal prosecution. This information is essential to the Court's determination of the validity of the privilege claim. The State would argue that the Defendant is not an appropriate executor of the privilege in his discussions with County Attorneys. The Ninth Circuit Court of Appeals 1111 66 15-1 1_I.DOC 4 • arrived at this conclusion in a matter concerning an Oregon Attorney General's discussions with Oregon State attorneys. See, United States v. Kitzhaber, D.C. No. 3:15- mc-00129-HZ; No. 15-35434 (9th Cir., July 13, 2016), Attached as Exhibit 3. The court reasoned that government attorneys do not act as personal attorneys for officeholders but instead are public servants fulfilling a higher duty to act in the public interest. Id. at *17. The court goes on to note that: "an official who fears he or she may have violated the criminal,Iaw and wishes to speak to an attorney in confidence should speak with a private attorney not a government attorney." Id. at 18 citing In re Grand Jury Subpoena Duces Tecum, 112 F.3d at 921. It is equally unclear whether the County Attorneys are asserting this privilege on behalf of the County of Hawaii, or why they would do so given it is the County of Hawaii who is the victim in the instant prosecution. ® C. THE COUNTY HAS FAILED TO ESTABLISH WHETHER ANY OF THESE 40 EMAILS WERE WRITTEN FOR PURPOSES OF REQUESTING OR RECEIVING LEGAL ADVICE This protection has only been afforded to "confidential communications made for the purpose of facilitating the rendition of professional legal services to the client." Ass'n of Apartment Owners of Waikoloa Beach Villas ex rel. Bd. of Directors v. Sunstone Wailoloa, LLC, 130 Haw. 152, 161 (2013). County Attorney have not provided factual evidence to satisfy this requirement. The subject line references in each of the 40 emails do not contain any language denoting a request or receipt of a legal opinion. Instead they denote the following subject matter: "P.Card Statements," "Pcard," "Pcard procedures," "Pcard expenses," "Public records request," "FOIA County P.Cards," "Travel Records," "Pcard processing," • 661X41_1 DOC 5 "Custodian of Records," "NCL couple of questions," "Message from HNL StarAdvertiser," "Media query," and "Preservation notice." This information is insufficient to determine the purpose of the communications. D. ATTORNEY-CLIENT PRIVILEGE DOES NOT ATTACH TO COMMUNICATIONS BETWEEN VARIOUS INDIVIDUALS SIMPLY BECAUSE AN ATTORNEY PARTICIPATES IN THE DISCUSSION. The Hawaii Supreme Court has stated that claimants seeking to invoke attorney- client privilege must establish that the communication at issue was made in confidence. Sapp at 38. The Privilege Log denotes that these emails were addressed and copied to multiple individuals and originated from a variety of senders. Ten of the 40 emails either do not contain an attorney on the thread or have merely copied an attorney on the communication. All emails authored by an attorney were addressed and/or copied to 11111 multiple recipients. All emails authored to an attorney were addressed and/or copied to multiple recipients. Other jurisdictions have opined that merely copying an attorney on an email will not suffice for establishing privilege. See United States v. Cheveron Texaco Corp., 241 F. Supp. 2d 1065, 1075 (N.D. Cal. 2002); Phillips v. C.R. Bard. Inc., 290 F.R.D. 615, 630 (D. Nev. 2013). This conclusion makes sense as such copying would negate a reasonable argument that the communication was generated purely for the purpose of obtaining legal advice. The limited information put forth by County Attorneys fails to establish that these 40 emails, authored and distributed in this haphazard manner, were made with the sincere intention of maintaining their confidentiality. 4111 661541_1.DOC 6 ® E. THE COUNTY HAS FAILED TO PROVIDE ANY EVIDENCE THAT AN EXCEPTION TO THE PRIVILEGE DOES NOT APPLY TO ANY OF THE 40 EMAILS • Courts demand facts rather than mere assertions in its evaluation as to whether exceptions to the privilege apply. Sapp v. Wong, 62 Haw. 34, 38 (1980). The Hawaii Supreme Court in Sapp explained that: "[b]ecause the privilege works to suppress otherwise relevant evidence, the limitations which restrict the scope of its operation... must be assiduously heeded. An ipse dixit claim of privilege is insufficient. Proper practice requires preliminary judicial inquiry into the existence and validity of the privilege and the burden of establishing the privilege rests on the claimant. Any other rule would foreclose meaningful inquiry into the existence of the relationship, and any spurious claims could never be exposed." Id. (internal citations and quotation marks omitted). 110 Here, County Attorneys have submitted, in lieu of facts, conclusory statements in the form of Declarations of County Attorneys declaring that: "Most of the communications from the attorney were marked confidential and privileged." Only fifteen of the 40 emails were from a County Attorney. More significantly, one cannot reasonably discern that confidentiality was intended based on this minimal information. They also declare that: "the emails do not relate to the charges against the Mayor." A cursory reading of the subject lines of the 40 emails challenge the accuracy of this statement. Moreover they attest that "none of them establish or involve criminal or fraudulent conduct." Likewise, this position is questionable based on available information as it appears many of the emails involve responses to Media/Public requests 661541_1 Doc 7 ® for information and the "Pcard." In short, County Attorneys have failed to carry their burden to establish the privilege. IV. CONCLUSION Based on the arguments presented above, the State respectfully requests that this Honorable Court apply the foregoing principles upon considering any evidence and arguments adduced during the hearing on the instant(motion and deny said motion. DATED: September 12, 2016, Honolul, By: KEVIN K. TAKATA Supervising Deputy Attorney General State of Hawai'i MICHELLE M.L. PUU Deputy Attorney General State of Hawai'i 1111 661541_I.DOC 8 DOUGLAS S. CHIN 6465 Attorney General KEVIN K. TAKATA 3763 Supervising Deputy Attorney General MICHELLE IVI.L. PUU 7888 Deputy Attorney General Department of the Attorney General, State of Hawai'i 333 Queen Street, Second Floor Honolulu, Hawai'i 96813 Telephone: (808) 586-1160 Facsimile: (808) 586-1375 Email: Criminal.iuticc a'1inv ui.Lrox Attorneys for the State of Hawai'i IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII STATE OF HAWAII, CR. NO. 16-1-0085 • v. COUNTS I-II: THEFT IN THE SECOND DEGREE WILLIAM P. KENOI COUNTS III-IV: THEFI IN THE THIRD DEGREE Defendant. COUNTS V-VII: TAMPERING WITH A GOVERNMENT RECORD COUNT VIII: FALSE SWEARING DECLARATION OF KEVIN K. TAKATA DECLARATION OF KEVIN K. TAKATA I, KEVIN K. TAKATA, do hereby declare under penalty of law that the following is true and correct: 1. I am a Supervising Deputy Attorney General employed by the Department of the Attorney General, State of Hawaii. • 2. I was assigned to handle the instant case involving Mayor William P. Kenoi's misuse of his Hawaii County issued credit card, otherwise known as a "pCard," shortly after joining the Department of the Attorney General on June 1, 2015. 3. A true and correct copy of the subpoena issued to the County of Hawaii, Office of the Mayor dated May 4, 2015 is attached as Exhibit 1. 4. A true and correct copy of the subpoenas issued to the County of Hawaii, Department of Finance dated May 4, 2015 is attached as Exhibit 2. 5. Throughout the pendency of the underlying criminal investigation and trial, County of Hawaii Corporation Counsel has asserted itself as Counsel for former and current County employees. 6. Multiple County of Hawaii Corporation Counsel attorneys have been present at all investigative interviews of former and current County employees. III7. Following the issuance of the indictment, I was instructed by County of Hawaii Corporation Counsel attorneys to submit all correspondence to former and current County employees to their Department. I, Kevin K. Takata, declare under penalty of law that the foregoing is true and accurate to the best of my knowledge and belief. DATED: G? _ , Ho4lu aii. - v1 .TAKATA • I 9t71.8Z0 E Ladd A lAooDEPARTMENT OF THE ATTORNEY GENERAL STATE OF HAWAII • IN RE INVESTIGATION OF: ) SUBPOENA • William "Billy" P. Kenoi ) AG Subpoena No. 2 0 1 5 1 1 8 SUBPOENA Prig TO: County of Hawaii, Office of the Mayor 25 Aupuni St. Hilo, HI 96720 • ph: (808) 961-8211 .r Attention: Custodian of Records YOU ARE HEREBY COMMANDED to appear at the Hawaii County Police Department, Office of the Chief, 349 Kapiolani Street, Hilo, Hawaii, on the 29th day of May, 2015, at 10:00 a.m. to be examined under oath regarding: the records requested below. YOU ARE FURTHER COMMANDED to bring with you ►4 original ►1 certified copies of records, documents or papers, in hard copy or digital form, relating to: Refer to attached records list and provide all records responsive to the time frame listed on the attachment. Provide a privilege log for all records being withheld due to privilege. OBEDIENCE to this subpoena may be enforced by the Circuit Court of the Third Circuit. I , DATED: Honolulu, Hawaii, on the I'=� day of May, 2015. ❑ If this box is checked, it may not be necessary to appear in person. To Ovireadk make other arrangements, please call: ATTORNEY GEN" L STATE OF HAWAII Contact Person: Chief Special Agent Daniel Hanagami Telephone No.: (808) 586-1081 4/92 1111 See Reverse Side for Recipient's Rights and Return of Service. EXH 1T " Lti6830 E ,12i3AO0SI0Attachment To Subpoena No. • 1.Ali policies and procedures related to the purchasing card program(pCard),including any } exemptions for County employees to include but not limited to the Mayor from 2005-2015. 2.All records related to pCard purchases by Mayor William"Billy" P.Kenoi to include but not limited to memos,bank statements,receipts and justification for purchase from 2008-2015. 3.All County of Hawaii Purchasing Card Cardholder Agreement signed by Mayor William"Billy" P.Kenoi from 2008 through 2015. 4.All Records related to the request and approval of purchases made by Mayor William"Billy" P. Kenoi exceeding$1,000.00,as required by the policy from 2008-2015. 5.All records related to reimbursements of pCard purchases made by Mayor William"Billy" P. Kenoi to include but not limited to,checks,credit card numbers,debit card numbers,memos, reimbursement documentation,receipts and justification of reimbursements from 2008-2015. 6.All records related to third party payments/reimbursements made to the County of Hawaii on behalf of Mayor William"Billy" P.Kenoi's for pCard or other County of Hawaii purchases from 2008-2015. 7.All Hawaii County checks and supporting documentation made payable to Mayor William "Billy"P.Kenoi which were drawn upon County of Hawaii funds from 2008-2015. 8.All records,to include,but not limited to,e-mails,memos,documents and notes related to Mayor William"Billy"Kenoi's use or misuse of his assigned County of Hawaii pCards from 2008- 2015. 9.All records related the misuse of a County of Hawaii pCards,to include but not limited to, • disciplinary or non-disciplinary investigations,e-mails,notes,memorandums, County of Hawaii employees found to be in violation of the Hawaii County Purchasing Card Cardholder Agreement.This is to include any form of discipline that was issued from 2005-2015. 10.All records related to charges made by Karen Teshima an Mayor William"Billy"P.Kenoi's pCard that were reimbursed to the County of Hawaii,to include but not limited to the 3/12/12 payment of$834.72. 11.All records related to charges made by Jesse Ebersole on Mayor William "Billy"P.Kenoi's pCard that were reimbursed to the County of Hawaii,to include but not limited to the 3/12/12 payment of$986.57 from 2008-2015. 12.All policies and procedures related to travel by County of Hawaii employees and the Mayor from 2005-2015. 13.All records related to travel taken by Mayor William"Billy"P. Kenoi,to include but not limited to,justification for travel,travel receipts,itineraries,advance per diems,excess lodging, completed travel documents and any requests made to the Expenditure Review Committee from 2008-2015. 14.All policies and procedures,to include but not limited to,the specific Mayor's policy,related to the purchasing of alcoholic beverages and food using the Hawaii County funds.Include any written exemptions for County of Hawaii employees or the Mayor from 2008-2015. 15.All records related to the request and/or approval of purchases made by Mayor William "Billy"P.Kenoi for food and alcohol when County of Hawaii funds were used,to include but not • limited to pCard purchases from 2008-2015. 814920£12:1Vd AU3A03SI0 JV • 16.All policies and procedures related to loans issued by County of Hawaii to employees,to include but not limited to terms of the loans,interest rates and amount of loans from 2005- 2015. 17.All records related to loans issued by the County of Hawaii to Mayor William "Billy" P. Kenai,or any other County of Hawaii employees from 2005-2015. 18.All appointment calendars,in electronic or hard copy form,for Mayor William"Billy"P. Kenoi from 2008-2015. 19.All garnishments or liens,notification of financial deficiencies sent to the County of Hawaii for Mayor William"Billy"P.Kenai from 2008-2015. 20.All records related to requests from news media requesting disclosure of the pCard purchases of Mayor William"Billy"P.Kenai.All records informing Mayor William"Billy" P. Kenoi that the news media was making inquiries of his Pcard expenditures from 2008-2015. 21.All financial disclosure statements submitted by Mayor William "Billy"P.Kenoi to the County of Hawaii from 2008-2015. 22.All records related to financial institution accounts used by Mayor William "Billy"P.Kenoi for direct deposit of his pay from the County of Hawaii from 2008-2015. 23.All conflicts of interest documents submitted by Mayor William"Billy"P.Kenoi to the County of Hawaii from 2008-2015. S 24.All records related to cellphones/smartphones assigned to or used by Mayor William"Billy" P. Kenoi from 2008-2015. 25.All billing statements,treasury receipts or records related to reimbursement of charges for pCards used by all Department heads of the County of Hawaii from 2008-2015. 26. All records of liens,garnishments,or judgements served upon County of Hawaii for the payroll of Karen Teshima and Jesse Ebersole from 2008-2015. 27. All records related to reports of inadvertent personal use of pCards and reimbursements made for the inadvertent use by any and all County of Hawaii pCard holders from 2005-2015. 28. Original pCard(s)of William"Billy"P.Kenoi turned into the County of Hawaii. 4110 6171,9z0 E Tadd A iDnooDEBARTMENT OF THE ATTORNEY GENERAL STATE OF HAWAII IN RE INVESTIGATION OF: ) SUBPOENA William "Billy" P. Kenoi ) AG Subpoena No. 2 0 1 5 1 1 SUBPOENA TO: County of Hawaii, Department of Finance Attention: Custodian of Records 25 Aupuni St. Suite 2103 Hilo, HI 96720 ph: (808) 961-8234 YOU ARE HEREBY COMMANDED to appear at the Hawaii County Police Department, Office of the Chief, 349 Kapiolani Street., Hilo, Hawaii, on the 29th day of May, 2015, at 10:00 a.m. to be examined under oath regarding: the records request below. YOU ARE FURTHER COMMANDED to bring with you ❑ original ►! certified copies of records, documents or papers, in hard copy or digital form, relating to: Refer to attached list and provide all records responsive to the time frame listed on the attachment. Provide a privilege log for all records being withheld due to privilege. OBEDIENCE to this subpoena may be enforced by the Circuit Court of the Third Circuit. ,,tt DATED: Honolulu, Hawaii, on the T day of May, 2015. ❑ If this box is checked, it may not be necessary to appear in person. To tt / ' make other arrangements, please call: 0, Pa V1TATE TTORNEY GEN: 'AL OF HAWAII Contact Person: Chief Special Agent Daniel Hanagami Telephone No.: (808) 586-1081 4/92 • See Reverse Side for Recipient's Rights and Return of Service. • 091BZ0£1i3tid AH AO�S14 f'achment To Subpoena No. • 1.All policies and procedures related to the purchasing card program(pCard), including any exemptions for County employees to include but not limited to the Mayor from 2005-2015. 2.All records related to pCard purchases by Mayor William"Billy"P.Kenoi to include but not limited to memos,bank statements,receipts and justification for purchase from 2008-2015. 3.All County of Hawaii Purchasing Card Cardholder Agreement signed by Mayor William"Billy" P.Kenoi from 2008 through 2015. 4.All Records related to the request and approval of purchases made by Mayor William "Billy" P. Kenoi exceeding$1,000.00,as required by the policy from 2008-2015. 5.All records related to reimbursements of pCard purchases made by Mayor William "Billy" P. Kenoi to include but not limited to,checks,credit card numbers,debit card numbers, memos, reimbursement documentation,receipts and justification of reimbursements from 2008-2015. 6.All records related to third party payments/reimbursements made to the County of Hawaii on behalf of Mayor William"Billy"P. Kenoi's for pCard or other County of Hawaii purchases from 2008-2015. 7.All Hawaii County checks and supporting documentation made payable to Mayor William "Billy" P.Kenoi which were drawn upon County of Hawaii funds from 2008-2015. 8.All records,to include,but not limited to,e-mails,memos,documents and notes related to Mayor William "Billy"Kenoi's use or misuse of his assigned County of Hawaii pCards from 2008- 2015. 9.All records related the misuse of a County of Hawaii pCards,to include but not limited to, • disciplinary or non-disciplinary investigations,e-mails, notes,memorandums,County of Hawaii employees found to be in violation of the Hawaii County Purchasing Card Cardholder Agreement.This is to include any form of discipline that was issued from 2005-2015. 10.All records related to charges made by Karen Teshima on Mayor William"Billy"P. Kenai's pCard that were reimbursed to the County of Hawaii,to include but not limited to the 3/12/12 payment of$834.72. 11.All records related to charges made by Jesse Ebersole on Mayor William "Billy"P. Kenoi's pCard that were reimbursed to the County of Hawaii,to include but not limited to the 3/12/12 payment of$986.57 from 2008-2015. 12.All policies and procedures related to travel by County of Hawaii employees and the Mayor from 2005-2015. 13.All records related to travel taken by Mayor William"Billy" P.Kenoi,to include but not limited to,justification for travel,travel receipts,itineraries,advance per diems,excess lodging, completed travel documents and any requests made to the Expenditure Review Committee from 2008-2015. 14.All policies and procedures,to include but not limited to,the specific Mayor's policy,related to the purchasing of alcoholic beverages and food using the Hawaii County funds.Include any written exemptions for County of Hawaii employees or the Mayor from 2008-2015. 15.All records related to the request and/or approval of purchases made by Mayor William "Billy"P.Kenoi for food and alcohol when County of Hawaii funds were used,to include but not • limited to pCard purchases from 2008-2015. 151820£DAVd A2BAO3SI0 OV 1110 16.AllP olicies and procedures related to loans issued by County of Hawaii to employees,to include but not limited to terms of the loans,interest rates and amount of loans from 2005- 2015. 17.All records related to loans issued by the County of Hawaii to Mayor William "Billy" P. Kenoi,or any other County of Hawaii employees from 2005-2015. 18.All appointment calendars,in electronic or hard copy form,for Mayor William"Billy" P. Kenoi from 2008-2015. 19.Ali garnishments or liens, notification of financial deficiencies sent to the County of Hawaii for Mayor William"Billy"P. Kenoi from 2008-2015. 20.All records related to requests from news media requesting disclosure of the pCard purchases of Mayor William"Billy"P.Kenoi.All records informing Mayor William"Billy" P. Kenoi that the news media was making inquiries of his Pcard expenditures from 2008-2015. 21.All financial disclosure statements submitted by Mayor William"Billy" P.Kenoi to the County of Hawaii from 2008-2015. 22.All records related to financial institution accounts used by Mayor William"Billy"P.Kenoi for direct deposit of his pay from the County of Hawaii from 2008-2015. 23.All conflicts of interest documents submitted by Mayor William"Billy" P.Kenoi to the County of Hawaii from 2008-2015. • 24.All records related to cellphones/smartphones assigned to or used by Mayor William "Billy" P.Kenoi from 2008-2015. 25.All billing statements,treasury receipts or records related to reimbursement of charges for pCards used by all Department heads of the County of Hawaii from 2008-2015. 26. All records of liens,garnishments,or judgements served upon County of Hawaii for the payroll of Karen Teshima and Jesse Ebersole from 2008-2015. 27. All records related to reports of inadvertent personal use of pCards and reimbursements made for the inadvertent use by any and all County of Hawaii pCard holders from 2005-2015. 28. Original pCard(sj of William"Billy"P. Kenoi turned into the County of Hawaii. • FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IN RE GRAND JURY SUBPOENA, No. 15-35434 JK-15-029, D.C. No. 3:15-mc-00129-HZ UNITED STATES OF AMERICA, Plaintiff-Appellee, OPINION v. JOHN A.KITZHABER, Intervenor-Appellant. • Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, District Judge, Presiding Argued and Submitted November 2, 2015 Portland, Oregon Filed July 13, 2016 Before: Raymond C. Fisher, Marsha S. Berzon, and Paul J. Watford, Circuit Judges. Opinion by Judge Berzon 2 IN RE GRAND JURY SUBPOENA SUMMARY* Grand Jury Subpoena The panel reversed the district court's order declining to quash a grand jury subpoena seeking a broad range of information from the State of Oregon as part of a federal investigation into activities of former Governor John Kitzhaber, and remanded. For several years before Kitzhaber left office, copies of his personal emails were archived on Oregon's computer servers. The panel agreed with Kitzhaber,an intervenor,that he had a reasonable expectation of privacy in much of his • personal email(although the Fourth Amendment's protection does not extend to any use of a personal email account to conduct public business), and that the subpoena in this case —which is not even minimally tailored to the government's investigatory goals—is unreasonable and invalid. The panel held that Kitzhaber may not assert the attorney-client privilege for his communications,including communications regarding potential conflicts of interest and ethics violations, with the State of Oregon's attorneys. The panel explained that whatever privilege may protect those communications belongs to the State of Oregon, not to Kitzhaber as an individual officeholder in his personal capacity. The panel remanded with instructions to quash the present subpoena in its entirety. The panel declined to address in the first instance issues likely to arise concerning the means of •This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. • IN RE GRAND JURY SUBPOENA 3 segregating and producing the material requested by a subpoena tailored in accordance with this opinion. COUNSEL Janet Lee Hoffman (argued) and Jennifer E. Roberts, Janet Hoffman & Associates LLC, Portland, Oregon, for Intervenor-Appellant. Kelly A. Zusman (argued) and Scott Bradford, Assistant United States Attorneys; Billy J. Williams, United States Attorney;United States Attorney's Office,Portland,Oregon; for Plaintiff-Appellee. 4110 OPINION BERZON, Circuit Judge: This case arises in the midst of an investigation by the federal government into activities of the former Governor of Oregon, John Kitzhaber. A grand jury's subpoena seeks a broad range of information from the State of Oregon, much of which would be available to the general public under Oregon's public records laws. But a wide net is susceptible to snags. For several years before Kitzhaber left office, copies of his personal emails were archived on Oregon's computer servers. According to Kitzhaber, he was unaware of the archiving of these emails,which include many private details unrelated to his official duties regarding him and his family, as well as private communications with his personal attorneys 1110 4 IN RE GRAND JURY SUBPOENA and with attorneys for the State of Oregon. Because this cache would be turned over to the government under the subpoena, Kitzhaber argues the subpoena is unreasonably broad,as it violates his Fourth Amendment privacy rights and invades his attorney-client privilege. Kitzhaber asserts in particular that the attorney-client privilege protects his communication with attorneys for the State of Oregon regarding issues concerning possible conflicts of interest and ethics violations. The government disclaims any interest in Kitzhaber's communications with his personal attorneys but argues it is otherwise entitled to everything it has requested. The public's interest in accountability and transparency is particularly strong when it comes to the investigation of elected officials, and grand juries are appropriately accorded a wide degree of latitude. But we agree with Kitzhaber that he had a reasonable expectation of privacy in much of his personal email(although the Fourth Amendment's protection does not extend to any use of a personal email account to conduct public business), and that the subpoena in this case —which is not even minimally tailored to the government's investigatory goals — is unreasonable and invalid. We do not agree, however, that Kitzhaber may assert the attorney- client privilege for his communications, including communications regarding potential conflicts of interest and ethics violations, with the State of Oregon's attorneys. Whatever privilege may protect those communications belongs to the State of Oregon, not to Kitzhaber as an individual officeholder in his personal capacity. John Kitzhaber served as Governor of Oregon from 1995 until 2003, and again from 2011 until 2015. During this IN RE GRAND JURY SUBPOENA 5 second period in office, Kitzhaber declined to use an official email address provided by the State of Oregon. Instead, he established an account with the commercial email service Gmail,which he used for official business. He requested that the Oregon Department of Administrative Services (DAS) archive on the state's servers emails sent to or from this "official" Gmail address, and DAS complied. In addition to his official Gmail account,Kitzhaber had a personal Gmail account and another personal account hosted at att.net. He checked all of these accounts from the same computer. According to a member of the Governor's senior staff, Kitzhaber commonly used his personal addresses "to communicate with senior staff for both personal and state business." • In February of 2015, Kitzhaber resigned from office, surrounded by controversy over whether he had used his position to benefit his fiancée,Cylvia Hayes. See Lee van der Voo and Kirk Johnson, Governor Leaves Office in Oregon, Besieged in Crisis, N.Y. Times, Feb. 14, 2015, at Al, http://www.nytimes.com/2015/02/14./us/kitzhaber-resigns-as- governor-of-oregon.html. Shortly before Kitzhaber's resignation,a federal grand jury issued a subpoena to DAS as part of an investigation into the Governor's actions. The subpoena asked DAS to provide "all information, records, and documents"going back to January I,2009,"relating to" Kitzhaber, Hayes, and several businesses and other entities. The subpoena also sought"any and all email communications from or to, or regarding" seventeen individuals, including Kitzhaber and Hayes. After he left office,Kitzhaber intervened in the grand jury proceedings, filing a motion to quash the subpoena in the fa • 6 IN RE GRAND JURY SUBPOENA United States District Court for the District of Oregon. According to Kitzhaber, shortly before resigning he discovered that DAS had been archiving emails to and from his personal email accounts on state servers. Kitzhaber asserted that DAS was not authorized to archive his emails from his personal addresses, which he says contain a great deal of private communication, including privileged communication with his personal attorneys. He challenged the subpoena on the grounds that it was unreasonably broad; a violation of his Fourth Amendment rights; and a violation of attorney-client privilege. The district court ruled that Kitzhaber's communication with his private attorneys over his personal email addresses was protected by the attorney-client privilege and should not be disclosed to the grand jury. The court directed the • government to create a "taint/filter team" to segregate the protected emails from the remaining content generated in response to the subpoena and prevent the protected content from reaching the jury. It ruled against Kitzhaber on every other issue. The court held that third parties to a subpoena, like Kitzhaber here, may not challenge the burden of production required to comply with the subpoena. It also held that any potential Fourth Amendment violation could be raised only in a suppression motion filed if Kitzhaber ends up being indicted and brought to trial. And it held that the attorney-client privilege did not apply to Kitzhaber's communication withattorne s.overnment The court y h therefore declined to quash the subpoena. Kitzhaber timely appealed. • IN RE GRAND JURY SUBPOENA 7 II Kitzhaber argues that the district court should have quashed the subpoena in its entirety. We agree. The subpoena includes emails on his personal accounts that Kitzhaber reasonably expects to remain private, as they do not concern public business. (Like the district court, we proceed on the assumption that Kitzhaber did not authorize DAS to archive the emails from his personal accounts). The subpoena does not exclude these communications or otherwise limit the documents demanded to those within the scope of the government's legitimate concern in conducting a thorough investigation of Kitzhaber's conduct of official business. As a result, the subpoena is unreasonably overbroad—analogous, that is, to a general warrant, which • constitutes an unreasonable search under the Fourth Amendment. See United States v. Bridges, 344 F.3d 1010, 1016(9th Cir. 2003). As such, the subpoena,as drafted,may not be enforced. A. "The grand jury is, to a degree, an entity independent of the courts, and both the authority and the obligation of the courts to control its processes are limited." In re Grand July Investigation of Hugle, 754 F.2d 863, 864 (9th Cir. 1985). But the normal rule of noninterference is"not absolute." Id. A subpoena is not automatically valid "merely because the Constitution does not prohibit it and the material [it seeks] is not privileged." United States v. Bergeson, 425 F.3d 1221, 1226 (9th Cir. 2005). Rather, courts may "exercise supervisory power over the grand jury where there is a clear potential for a violation of the rights either of a witness or of a nonwitness, if the violation cannot be corrected at a later stage." Hugle, 754 F.2d at 864. • 8 IN RE GRAND JURY SUBPOENA Here, there is a clear potential for the violation of Kitzhaber's rights. "[A]n order for the production of books and papers may constitute an unreasonable search and seizure within the 4th Amendment." Hale v. Henkel,201 U.S.43,76 (1906), abrogated in part on other grounds by Murphy v. Waterfront Comm 'n of New York Harbor, 378 U.S. 52, 68 (1964). This can be true"whether under a search warrant or a subpoena duces tecum." Id.' When the government crafts subpoenas, it must"make a reasonable effort to request only those documents that are relevant and non-privileged, consistent with the extent of its knowledge about the matter under investigation." In re Horn, 976 F.2d 1314, 1318 (9th Cir. 1992). A subpoena without such tailoring is "equally indefensible as a search warrant would be if couched in similar terms." Hale, 201 U.S. at 77. Thus, where a grand jury's subpoena, given its overbreadth, would itself violate II/ the privacy interests protected by the Fourth Amendment, "[j]udicial supervision is properly exercised in such cases to prevent the wrong before it occurs. United States v. Calandra, 414 U.S. 338, 346 (1974). ' Recently, the Supreme Court implicitly reaffirmed that subpoenas trigger Fourth Amendment concerns and may be challenged on Fourth Amendment grounds. City of Los Angeles, Cal. v.Patel, 135 S.Ct.2443, 2453 (2015). Patel did not directly involve a challenge to a subpoena. But it did indicate that a subpoena recipient's ability to"move to quash[a] subpoena before any search takes place"is sufficient to protect his or her Fourth Amendment rights. Id. In contrast, a witness may not refuse to answer questions before a grand jury on the grounds that they are based on evidence previously improperly seized. Calandra, 414 U.S- at 351-53. But in that circumstance, the wrong has already been "fully accomplished" by the time the witness is called to testify;the exclusionary rule can be invoked if such evidence is introduced at trial, but is inapplicable in grand jury proceedings. Id. at 349-54. • • IN RE GRAND JURY SUBPOENA 9 B. The district court concluded otherwise. It was of the view that it was obliged to enforce the subpoena as long as there was a "reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation," citing United States v. R. Enterprises, Inc., 498 U.S. 292, 301 (1991). Not so. R. Enterprises held that where"a subpoena is challenged on relevancy grounds, the motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation." 498 U.S. at 301. But R. Enterprises does not suggest that by self-defining the "category of materials" sought as broadly as possible, the • government insulates its subpoenas from review. Otherwise, when the government seeks all material of a broad generic type that a party possesses — every piece of paper in a corporation's files, for example, or, as in this case, all of an individual's emails over a several year period—a reasonable possibility that some of that material would be relevant would suffice to validate the subpoena, no matter how vast its sweep,and no matter the degree to which the subpoena would reach private material of no pertinence to the grand jury's inquiry. The reference to"category of materials"in R. Enterprises confirms that subpoenas typically designate for production a discrete "category" of materials. Where one does not, and there is a broad, identifiable "category of materials the Government seeks [that] will [not] produce information relevant to the general subject of the grand jury's investigation," id. — here, for example, material about • 10 IN RE GRAND JURY SUBPOENA Governor Kitzhaber's children or medical care — the subpoena is unreasonably broad. Our decisions in In re Horn, 976 F.2d 1314 (9th Cir. 1992),and United States v.Bergeson,425 F.3d 1221 (9th Cir. 2005), confirm this understanding of R. Enterprises. They make clear that a subpoena may be quashed when no effort is made to tailor the request to the investigation, even if some fraction of the material the subpoena seeks is relevant. See Bergeson,425 F.3d at 1225-26; Horn, 976 F.2d at 1318-19. The government's subpoena in this case is much broader than the subpoena we rejected in Horn. In Horn, the subpoena at issue sought all information regarding the financial transactions of a lawyer's clients. 976 F.2d at 1319. Here,there is no subject matter limitation whatsoever on the • documents sought. The subpoena seeks,among other things, all of Kitzhaber's e-mail communication over several years, with no limitation on the content,senders,or recipients of the e-mails. As Kitzhaber points out,the subpoena would net,for instance,"emails between [himself] and his son's physicians or teachers." Notably,the government attached to the subpoena a non- exhaustive list of the kinds of documents that might be included in the data it sought. But the subpoena explicitly did not limit itself to that material, so that list did not narrow the scope of the subpoena itself. At the same time,by indicating the government's particular investigatory goals, the list confirms that a narrowing of the subpoena in accord with that list would not compromise the investigation. Because the government did not in any manner tailor its request to relevant material, the subpoena was unreasonably • IN RE GRAND JURY SUBPOENA 11 broad and within the district court's supervisory power, and responsibility, to quash.' C. This conclusion is reinforced by the nature of the emails caught up in the exceedingly broad subpoena. Stored in his personal accounts, many of the messages — or so Kitzhaber avers--- do not concern official state business in any way, and some concern particularly private matters, including communications about medical issues and Kitzhaber's children. The combination of the subpoena's vast overbreadth and inclusion of messages as to which Kitzhaber has a reasonable expectation of privacy implicates privacy interests similar to those triggered by the issuance of a general warrant. As currently framed, the subpoena will, if complied with, allow federal government agents seeking out the messages that bear relevance to their investigation to peruse all manner of private communications that do not. See generally United States v. Comprehensive Drug Testing, Inc.,621 F.3d 1162, 1176(9th Cir. 2010) (en banc). We have previously held that email should be treated like physical mail for purposes of determining whether an individual has a reasonable expectation of privacy in its content. United States v. Forrester, 512 F.3d 500, 511 (9th 'Kitzhaber also argues the subpoena should be quashed as unreasonable under Federal Rule of Criminal Procedure 17(c)(2),which states that"[o]n motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive." It is not immediately clear from Rule l7(c)(2)'s text whether it can be invoked by an intervening third party to quash a subpoena. We need not reach the issue of Rule 17(c)(2)'s applicability here,as we hold that the subpoena should here be quashed under the district court's general supervisory power. • • 12 IN RE GRAND JURY SUBPOENA Cir. 2008). While an email's addressing information is visible to third parties and therefore not protected,emails also contain "content that the sender presumes will be read only by the intended recipient." Id. We have also noted that electronic storage devices such as laptops "contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails,"and held that"[t]hese records are expected to be kept private and this expectation is one that society is prepared to recognize as reasonable." United States v. Cotterman, 709 F.3d 952, 964 (9th Cir. 2013) (citation omitted). The Supreme Court, too, has emphasized recently the ability of digital troves to contain "[t]he sum of an individual's private life,"and the corresponding need for our jurisprudence to reflect the changing technological landscape. Riley v. California, 134 S. Ct. 2473, 2489 (2014). Personal email can, and often does, contain all the information once found in the"papers and effects"mentioned explicitly in the Fourth Amendment. Kitzhaber thus has a strong claim to a legitimate expectation of privacy in his personal email,given the private information it likely contains. DAS's current possession of the emails does not vitiate that claim. "[T]he Fourth Amendment protects people, not places." United States v. Davis, 332 F.3d 1163, 1167 (9th Cir. 2003) (citation omitted). Kitzhaber's interests therefore attach to "the thing[s] seized,"not merely to the place where they are located. Id. As we held in Forrester, emails are to be treated as closed, addressed packages for expectation-of- privacy purposes. 512 F.3d at 511. And a person"does not forfeit[his] expectation of privacy merely because[a private] container is located in a place that is not controlled exclusively by the container's owner." United States v. 410 • IN RE GRAND JURY SUBPOENA 13 Monghur, 588 F.3d 975, 978 (9th Cir. 2009) (citation omitted).4 The Fourth Amendment bars searches of closed containers even if they are not in their owners' possession. Davis, 332 F.3d at 1167; United States v. Fultz, 146 F.3d 1102, 1105 (9th Cir. 1998). Where a third party comes into possession of a closed container accidentally, the Fourth Amendment bars the government from examining the contents of the container beyond "the extent that [it] had already been examined by third parties." Walter v. United States, 447 U.S. 649, 656 (1980) (plurality opinion).5 Kitzhaber asserts, and the government does not dispute, that he and DAS came to an agreement that his personal email accounts would be segregated on Oregon's servers and not distributed "without a court order or other legal process." There is no evidence in the record,and no assertion made by the government, that DAS or anyone else has opened or examined the contents of the email on Kitzhaber's personal accounts. Kitzhaber's claim to a reasonable expectation of It is true that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."Forrester,512 F.3d at 509(quoting Smith v.Maryland,442 U.S.735,743-44(1979)). In this circumstance,however,we are assuming,as did the district court,that,as he maintains, Kitzhaber did not mean to turn his private email over to DAS. 5 United States v.Joseph distinguished Walter and held that"[f]ederal examination of evidence in the state's possession does not constitute an independent search requiring the execution of a search warrant." 829 F.2d 724, 728 (9th Cir. 1987). But Joseph "stress[ed] that the records were seized by the DA's office pursuant to a valid search warrant."Id. at 726. Here, in contrast,no warrant supported the initial archiving of the email. Walter,which dealt with mail accidentally delivered to a third party,is the more apposite case. See 447 U.S. at 651. • 14 IN RE GRAND JURY SUBPOENA privacy in the contents of the emails is therefore not undermined by Oregon's possession of the emails. Kitzhaber's privacy claim lacks force, however, with respect to any emails transmitted through his personal email accounts but concerning official business. Oregon's public records law,O.R.S. § 192.410 et seq.,which applies to"every state officer," grants a general right to the public to inspect "any writing that contains information relating to the conduct of the public's business." §§ 192.410, 192.420. Kitzhaber has acknowledged that he instructed IFAS to archive emails in his"official"Gmail account to comply with public records laws. The government has also offered evidence that the State of Oregon's training for employees informs them that emails on personal accounts regarding state business are not exempt from public records laws. 410 Consequently,whether or not Kitzhaber had a subjective expectation of privacy as to emails on his private accounts relating to official business, any such expectation is not a reasonable one. "[C]ompliance with state open records laws . . . bear[s] on the legitimacy of a[] [public] employee's privacy expectation." City of Ontario, Cal. v. Quoit,560 U.S. 746, 758 (2010). While the existence of an open records law may not be conclusive in all cases,it is conclusive here. The public interest in open and transparent governance is at its zenith when it comes to the state's top elected official and his communication with senior advisers regarding official business. Even if state officials expect to evade those laws through the use of personal email addresses, that expectation is not a protected privacy interest. Kitzhaber therefore had a reasonable expectation of privacy regarding emails on his personal accounts unrelated • IN RE GRAND JURY SUBPOENA 15 to official business. Because the subpoena was in no way tailored to the investigations being conducted, it included those purely private emails. Again, the district court had the supervisory power, and responsibility, to quash the vastly overbroad subpoena, and thereby prevent the trampling of Kitzhaber's reasonable expectation of privacy. III Kitzhaber also challenges the subpoena as violating attorney-client privilege. He claims the privilege protects both his communications with his personal attorneys and specific communications with government attorneys regarding potential conflicts of interest. Kitzhaber is correct,and the government does not dispute, • ® that his communication with privately-retained attorneys is protected by the attorney-client privilege and should not be turned over to the grand jury. See, e.g., Horn, 976 F.2d at 1318-19. But, for several reasons, we conclude that Kitzhaber may not invoke the attorney-client privilege for his communications with government attorneys regarding conflicts of interests or ethics violations. Whatever privilege such communications may implicate is held by the State of Oregon, not Kitzhaber personally. First, Kitzhaber maintains that the privilege over the conflict of interest and ethical obligations conversations should attach to him personally, because any liability resulting from breaking those obligations would be personal. The potential for personal liability, Kitzhaber maintains, should have indicated to the government attorneys he consulted that he was seeking personal legal advice. Also, because of the potential for personal liability, Kitzhaber 4110 i 16 IN RE GRAND JURY SUBPOENA argues, he himself had a reasonable expectation that his conversation with government attorneys would be protected by the attorney-client privilege. Much uncertainty surrounds the reach of the attorney- client privilege in the context of investigations into public officials. See, e.g., In re Grand Jury Investigation, 399 F.3d 527 (2d Cir. 2005); In re Witness Before the Special Grand Juiy 2000-2, 288 F.3d 289 (7th Cir. 2002); In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998);In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997). That uncertainty, however, has concerned cases in which an attorney-client privilege with a government lawyer was invoked by a governmental entity, or by an individual in his or her official capacity. Where courts have acknowledged the attorney-client privilege to apply to conversations between ® government officials and government lawyers, they have construed the privilege to mean that "the Government may invoke the attorney-client privilege," not that officeholders in their personal capacity may invoke the privilege. United States v. Jicarilla Apache Nation, 564 U.S. 162, 170 (2011) (emphasis added); see also In re Grand July Investigation, 399 F.3d at 534-35 & n.3. In no instance, as far as we are aware, has a former officeholder successfully claimed that a government staff lawyer discussing a matter relating to official business was representing the officeholder personally during a conversation had while both were government employees.' 6 A different scenario arises when a government attorney is provided by the government specifically for the purpose of representing a public employee sued in her personal capacity. See,e.g.,Restatement(Third)of the Law Governing Lawyers § 74 cmt. d(Am. Law Inst. 2000). In that situation, where "government attorneys stand in the shoes of private • IN RE GRAND JURY SUBPOENA 17 Moreover, a consultation concerning conflict-of-interest or ethics laws is a consultation about an office holder's official actions and obligations. For example, when a judge considers whether a statute or code of conduct requires that she recuse from a case because of personal financial interests or the involvement of a relative or friend,what is at stake is precisely how she is to carry out judicial obligations. Similarly, an executive officer who consults with a government attorney concerning whether to let a certain contract go to a person with whom he has business dealings, or to a relative, is seeking advice about carrying out his official duties. Consideration of the possible personal sanctions for non- compliance with such legal obligations is likely to be an integral part of such discussions; sanctions are imposed • precisely to induce compliance. But that does not mean that during those conversations, the government lawyers are acting as the personal attorneys for the officeholders. Government lawyers,like the elected officials they assist,are public servants, and their client is the government, not officeholders in their personal capacities. "[government lawyers have responsibilities and obligations different from those facing members of the private bar. While the latter are appropriately concerned first and foremost with protecting their clients . . . government lawyers have a higher, competing duty to act in the public interest." In re Special Grand July, 288 F.3d at 293. The public interest may well include advising government officials about their ethical counsel," !n re Lindsey, 158 F.3d at 1269, whether and when the government employee may invoke the privilege in their individual capacity may require a different analysis. We express no view of that scenario here. 11, 18 IN RE GRAND JURY SUBPOENA duties; that the public's interest partially overlaps with those officials' private interests does not convert government attorneys into those officials' private attorneys. Kitzhaber maintains,however,that officeholders will"be less likely to engage in full and frank discussions with agency counsel about the facts underlying a potential conflict"if the privilege does not attach to officeholders in their personal capacity. Perhaps so. But the State of Oregon has an exceedingly strong interest in keeping conversations concerning conflicts of interests between its lawyers and other officials confidential to ensure candor,and therefore in invoking the attorney-client privilege as to such conversations.' Further, Kitzhaber could have hired his own lawyer for • consultation about his conflict-of-interest concerns, and indeed did hire his own lawyer to represent him in an ethics inquiry. Generally, "[a]n official who fears he or she may have violated the criminal law and wishes to speak with an attorney in confidence should speak with a private attorney, not a government attorney." In re Grand July Subpoena 71n a letter submitted after oral argument in this case,the State informed us that it has asserted and continues to assert the attorney-client privilege in the U.S. Attorney's investigation. Where government officials assert the attorney-client privilege during criminal investigations into government misconduct, the scope of the privilege is not clearly established. See In re Grand Jury Investigation, 399 F.3d 527 (2d Cir. 2005);In re Witness Before the Special Grand Jug 2000-2,288 F.3d 289 (7th Cir. 2002); In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910(8th Cir. 1997). We express no opinion on the proper scope of Oregon's asserted privilege in this decision,as the State ofOregon is not a party before us and Kitzhaber may not invoke the privilege in his personal capacity. • • • IN RE GRAND JURY SUBPOENA 19 Duces Tecum, 112 F.3d at 921. As to any communications with a private lawyer, Kitzhaber must "receive[] the full protection of the attorney-client and work product privileges in his dealings with personal counsel." In re Lindsey, 158 F.3d at 1278. We are thus unpersuaded by Kitzhaber's arguments that his conversations with state attorneys regarding state conflict- of-interest laws are protected by a privilege that he may assert in his personal capacity. Kitzhaber's communication with his private attorneys should receive all the protections normally afforded by the attorney-client privilege. But he may not himself invoke the privilege to protect his communication with attorneys for the State of Oregon. N 1111 The parties dispute the proper procedure for assuring compliance with any limitations on production of documents. In the district court,Kitzhaber argued that his lawyers should be able to review his personal emails before they are released to the government,to determine which were protected by the attorney-client privilege. The government asked the district court to review Kitzhaber's emails in camera. The district court took a third course—it held that the documents should be turned over to the government's "taint/filter team" under a standard protocol designed to remove any privileged communication before passing the non-protected information along to the prosecutorial team. The district court considered these possible procedures in the context of the very narrow limitation on production it recognized— that communications between Kitzhaber and his private attorneys, but no others, were exempt from • 20 IN RE GRAND JURY SUBPOENA production. But we are remanding with instructions to quash the government's present subpoena in its entirety. As a result,no filtering issues will immediately arise.We therefore do not address whether the district court's adoption of the "taint/filter" team protocol was appropriate for the limited purpose for which it was imposed. We fully expect the government will issue a subpoena tailored in accord with this opinion. If so, issues are likely to arise concerning the means of segregating and producing the material requested by such a proper subpoena. But the parties, and the district court, have had no opportunity to address the appropriate segregating mechanism for a properly drawn subpoena. We will not do so in the first instance. Given the parties' expressed views, however, a few • comments are in order. With a substantively tailored subpoena,the problem of separating the messages covered by the subpoena from those not covered becomes much more complex than the limited segregation issue addressed by the district court. It will not be enough simply to look at the sender or recipient of Kitzhaber's emails to determine whether they possibly deal with the subjects covered by the subpoena. Instead, whoever is doing the sorting will have to look at and consider in detail the content of the emails. The situation will be further complicated by the fact that the documents are in the possession of a third party,the State of Oregon. Kitzhaber objects to Oregon,another government entity, combing through his private emails. And the state undoubtedly would prefer not to do so because of the burden imposed. Yet, because Oregon possesses the emails, the usual process, in which the person to whom a subpoena is directed and his attorney sort through the documents and • • IN RE GRAND JURY SUBPOENA 21 produce those called for, has no direct application. Without limiting the possible procedures for segregating the documents to be produced, we note that one option, not mentioned by the parties, would be engaging a neutral third party to sort Kitzhaber's emails. See Comprehensive Drug Testing, 621 F.3d at 1179 (Kozinski, J., concurring). REVERSED and REMANDED for further proceedings consistent with this opinion. • IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII STATE OF HAWAII, ) CR.NO. 16-1-0085 v. ) COUNTS I-Il: ) THEFT IN THE SECOND DEGREE WILLIAM P. KENOI, ) COUNTS III-IV: ) THEFT IN THE THIRD DEGREE Defendant. ) COUNTS V-VII: ) TAMPERING WITH A GOVERNMENT ) RECORD ) COUNT VIII: ) FALSE SWEARING ) CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing will be duly served on the following party by depositing the same in the United States mail, postage prepaid, ® or by placing the same in the party's corresponding court jacket located at the Circuit Court of the First Circuit, State of I-Iawai'i, upon filing: MOLLY A. STEBBINS ESQ. et a]. Corporation Counsel Office of the Corporation Counsel Hilo Lagoon Centre 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 RICHARD H.S. SING ESQ. Hawk, Sing & Ignacio Attorneys at Law 1130 N. Nimitz Highway, Suite B-299 Honolulu, Hawai'i 96817 TODD EDDINS ESQ. 1003 Bishop Street, Suite 2140 Honolulu, Hawaii 96813 Attorneys for Defendant William P. Kenoi • 661541_I.DOC 9 ® DATED: September 12, 2016, Honolulu, Hawai'i. KEVIN K. TAKATA Supervising Deputy Attorney General State of Hawai'i MICHELLE M.L. PUU Deputy Attorney General State of Hawai' • 661541_L DOC 10 f 4 t C I MOLLY A. STEBBINS 863911111 Corporation Counsel IA' _ i. HAW A ' Nil)SEP 15 PH 12: 22 LAUREEN L. MARTIN 5927 Deputy Corporation Counsel, Section Chief STEVEN D. STRAUSS 5242 Deputy Corporation CounselLEr'��c t- Office of the Corporation Counsel Hilo Lagoon Centre 101 Aupuni Street, Suite 325 Hilo, Hawai`i 96720 Telephone: 961-8251 Facsimile: 961-8622 E-mail: Steven.Strauss@hawaiicounty.gov Laureen.Martin@hawaiicounty.gov Attorneys for COUNTY OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII STATE OF HAWAII , Cr.No. 16-1-0085 COUNTY OF HAWAI`I'S REPLY TO • STATE'S MEMORANDUM IN OPPOSITION TO vs. COUNTY OF HAWAI'I'S COUNTY OF HAWAII'S MOTION TO QUASH SUBPOENA WILLIAM P. KENOI, SEEKING ATTORNEY/CLIENT PRIVILEGED MATERIAL AND FOR AN ORDER REQUIRING Defendant. THE RETURN OR DESTRUCTION OF PRIVILEGED MATERIAL INADVERTENTLY DISCLOSED; CERTIFICATE OF SERVICE Hearing: Date: September 16, 2016 Time: 1:00 p.m. Judge: Honorable Dexter D. Del Rosario Trial: October 10, 2016 1 • • COUNTY OF HAWAII'S REPLY TO STATE'S MEMORANDUM IN OPPOSITION TO COUNTY OF HAWAII'S MOTION TO QUASH SUBPOENA SEEKING ATTORNEY/CLIENT PRIVILEGED MATERIAL AND FOR AN ORDER REQUIRING THE RETURN OR DESTRUCTION OF PRIVILEGED MATERIAL INADVERTENTLY DISCLOSED Pursuant to Rules 45(c) and 47, Hawai`i Rules of Penal Procedure, COUNTY OF HAWAI`I("County"),by and through its undersigned counsel hereby submits its reply to State's Memorandum in Opposition to County of Hawai`i's Motion to Quash Subpoena Seeking Attorney/Client Privileged Material and for an Order Requiring the Return or Destruction of Privileged Material Inadvertently Disclosed, filed September 12, 2016. I. ARGUMENT AND AUTHORITIES The County has complied with its procedural duties in asserting attorney-client privilege in the forty documents identified in its privilege log. The State complains that it lacks sufficient information to verify the legitimacy of • County's assertion of attorney-client privilege. Moreover,the State argues at page 2 of its Memorandum in Opposition, without support, that because the forty emails for which privilege is claimed"are addressed and copied to multiple individuals and originate from a variety of senders",this fact "strongly suggests that these communications were not made with any reasonable expectation or maintaining attorney-client privilege." Nonsense. It appears that nothing short of disclosure of the documents themselves would satisfy the State. Where a dispute arises regarding claim of privilege, however, determination is left to the Court, not the State. See Sapp v. Wong, 62 Haw. 34 (1980). To the extent the Court considers it necessary, the County is prepared to submit a portion or all of the forty emails to the Court under seal for it's in camera review. ® 2 • The Court should also reject State of Hawaii's speculative argument that County's Corporation Counsel raises attorney-client privilege based on"mere involvement of an attorney in a conversation". The State has produced no evidence that the County follows any such practice. The State ignores the unrebutted declaration of Deputy Corporation Counsel, Section Chief Martin that, of over 18,000 pages of County documents produced, careful review of forty communications supports withholding them based on attorney-client privilege not subject to any exception. See Declaration of Laureen L. Martin filed August 30,2016 in support of County of Hawai`i's Motion to Quash Subpoena Seeking Attorney/Client Privileged Material and for an Order Requiring the Return or Destruction of Privileged Material Inadvertently Disclosed, at¶¶7-9. The State also ignores its receipt of hundreds of disclosed employee-to-employee e-mails where Corporation Counsel is not copied as a recipient. See Exhibit B attached to Declaration of Laureen L. Martin filed August 30, 2016 in support of County of Hawai`i's Motion to Quash Subpoena Seeking Attorney/Client Privileged Material and for an Order Requiring the Return or Destruction of Privileged Material Inadvertently Disclosed. In the portion of Exhibit B comprising Deputy Attorney General Michelle M. L. Puu's email dated August 15, 2016, she acknowledges receiving "hundreds" of emails from Corporation Counsel. In support of its argument that no privilege exists or, alternatively, the privilege should be disregarded, the State relies heavily on a federal case,In re Grand Jury Subpoena, JK-15-029, F.3d--- (9th Cir. 2016)2016 WL 3745541,that interprets and applies common law in Oregon. The case is inapposite because: (1) it involved an investigative grand jury subpoena; ® 3 (2) the defendant, a former governor of Oregon, asserted privilege in his individual capacity; and, (3)the holding rested in part on interpretation and application of Oregon statutes not in play here. By the Ninth Circuit Court of Appeal's own words, however, the case is self-limited and singularly unhelpful to the State's argument. See footnote 7 at p. 18, which states: In a letter submitted after oral argument in this case, the State informed us that it has asserted and continues to assert the attorney client privilege in the U.S. Attorney's investigation. Where government officials assert the attorney-client privilege during criminal investigations into government misconduct,the scope of the privilege is not clearly established. See In re Grant Jury Investigation, 399 F.3d 527 (2d Cir. 2005); In re Witness Before the Special Grand Jury 2000-2, 288 F.3d 289 (7t1' Cir. 2002); In Re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998);In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8TH Cir. 1997). We express no opinion on the proper scope of Oregon's asserted privilege in this decision, as the State of Oregon is not a party before us and Kitzhaber may not invoke the privilege in his personal capacity. Emphasis added. In the case at bar, the Hawai`i County Mayor remains Hawaii County Mayor and the attorney-client privilege is not asserted by him in his individual capacity. No Hawaii case has been found which adopts or is consistent with the Ninth Circuit's approach in In re Grand Jury Subpoena, JK-15-029, --- F.3d--- (9th Cir. 2016) 2016 WL 3745541. Other jurisdictions have held the opposite. See, e.g., In re Grand Jury Investigation, 399 F.3d 527 (2"d Cir. 2005) (Second Circuit Court of Appeals reversed an order compelling a government attorney to testify about the content of attorney-client communications.) It is instructive to quote from the Second Circuit's analysis at length. The attorney-client privilege is one of the oldest recognized privileges for confidential communications," Swidler & Berlin v. United States, 524 U.S. 399, 403, 118 S.Ct.2081, 141 L.Ed.2d 379(1998);see also United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir.1989), one that for centuries has been a part of the common law, in one form or another. While the privilege has a long history, understandings of its purpose and scope have varied over time. Compare 1 John W. S4 Strong,McCormick on Evidence § 87, at 343-46 (5th ed.1999) (summarizing view that privilege, as it first appeared in Elizabethan England, was linked to barrister's code of honor, but rationale behind it later developed a more utilitarian bent) with 24 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5472, at 71-77 (1986) (characterizing as "highly questionable" the view that a rationale predicated on notions of honor, loyalty,and fairness gradually gave way to a utilitarian rationale for privilege, and arguing that during the modern period both rationales have coexisted). See also United States v. Zolin, 491 U.S. 554, 562, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989) (noting that "the underlying rationale for the privilege has changed over time"). Today, the generally acknowledged purpose of the privilege is "to encourage 'full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.' " Swidler, 524 U.S. at 403, 118 S.Ct. 2081 (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)); see also In re John Doe, Inc., 13 F.3d 633, 635-36 (2d Cir.1994) ("The purpose of the attorney-client privilege is to promote open communication between attorneys and their clients so that fully informed legal advice may be given."); Restatement (Third) of the Law Governing Lawyers § 68 cmt. c (2000) ("The rationale for the [attorney-client] privilege is that confidentiality enhances the value of client-lawyer communications and hence the efficacy of legal services."). The idea that a robust attorney-client privilege will in fact"promote broader public interests"does not mean that application of the privilege will render justice in every single case. Nevertheless, courts have by reason and experience concluded that a consistent application of the privilege over time is necessary to promote the rule of law by encouraging consultation with lawyers, and ensuring that lawyers, once consulted, are able to render to their clients fully informed legal advice. See id. ("Recognition of the privilege reflects a judgment that [impairment of the search for truth in some instances] is outweighed by the social and moral values of confidential consultations.... The law accepts the risks of factual error and injustice in individual cases in deference to the values that the privilege vindicates."). In light of the common-law roots of the attorney-client privilege and the attendant principle (evident in case law stretching back at least a century, see Hunt v. Blackburn, 128 U.S. 464, 470, 9 S.Ct. 125,32 L.Ed. 488 (1888))that safeguarding client confidences promotes,rather than undermines, compliance with the law, we believe it best to proceed cautiously when asked to narrow the privilege's protections in a particular category of cases. We are aware, of course, that even existing privileges are not to be"expansively construed,"as they"are in derogation of the search for truth," United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), and that the attorney-client privilege, in particular, "applies only where necessary to achieve its purpose,"Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). But this admonishment does not invite a wholesale reassessment of the privilege's utility whenever it is invoked under previously unexplored circumstances. Instead, our application of the 1110 5 IIIprivilege in a "new" context remains informed by the longstanding principles and assumptions that underlie its application in more familiar territory. 399 F.3d at 531 —532. Moreover,the Second Circuit provided cogent reasoning to support a conclusion that there is a strong need to recognize the attorney-client privilege in the government context: We believe that, if anything, the traditional rationale for the privilege applies with special force in the government context. It is crucial that government officials, who are expected to uphold and execute the law and who may face criminal prosecution for failing to do so, be encouraged to seek out and receive fully informed legal advice. Upholding the privilege furthers a culture in which consultation with government lawyers is accepted as a normal, desirable, and even indispensable part of conducting public business. Abrogating the privilege undermines that culture and thereby impairs the public interest.See 1 Paul R. Rice, Attorney-Client Privilege in the United States § 4:28, at 4 (2d ed. 1999) ("If the government attorney is required to disclose[internal communications with counsel] upon grand jury request, it is sheer fantasy to suggest that it will not make internal governmental investigations more difficult, to the point of being impossible.... To the extent that the protection of the privilege is justified in any corporate context, the need within the government is equal,if not greater."). III 399 F.3d at 534. In this case, the State argues that,because the State considers that the County is the victim of criminal conduct, no privilege applies or the County should waive the privilege. That is not Hawaii law. Furthermore, notwithstanding the apparent confidence of the State in its prosecution, the determination whether any crime has been committed must be left to a jury that has yet to be convened. Finally, the State argues that the County is burdened with showing that exceptions to attorney-client privilege do not apply. This origin of this notion is unknown. It does not arise in Sapp v. Wong, 62 Haw. 34 (1980) (burden of establishing the privilege rests on the claimant—no mention of notion that claimant must also establish that no exceptions apply). It merely seems that,the State lacks any substantial arguments that the Court should recognize one or more 40 6 • exceptions to attorney-client privilege and would thus like to assign that burden to the County. The Court should say no. II. CONCLUSION Based on the foregoing argument and authorities, and the argument, authorities, declaration and exhibits it previously submitted,the County respectfully requests the Court to grant its motion to quash. Dated: Hilo,Hawai`i, September 15, 2016. COUNT'7 HAW. BY L /f STE N D. Sip Deput Co v orati o •Ansel Its attorney • • 7 IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAI`I STATE OF HAWAII , Cr.No. 16-1-0085 CERTIFICATE OF SERVICE vs. WILLIAM P. KENOI, Defendant. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing document was served upon the following by mailing the same,postage prepaid and a courtesy copy sent by email on • September 15, 2016: Kevin K. Takata, Esq. Kevin.K.Takata@hawaii..gov Michelle M. Puu, Esq. Michelle.M.Puu(c hawaii.gov DEPT. OF THE ATTORNEY GENERAL State of Hawai`i 425 Queen Street Honolulu, Hawai`i 96813 Attorneys for State of Hawai`i Todd W. Eddins, Esq. Todd@ToddEddinsLaw.com 1003 Bishop Street, Suite 2140 Honolulu,Hawai`i 96813 Attorney for Defendant Dated: Hilo,Hawai`i, September 15, 2016. COUNg . 6 HAW•. By otk STEVE :. ST' • 1, Deputy Corporation Counsel Its attorney 1