HAWSCT: Agencies Have No Duty To Keep Their Records Accurately

by Robert Thomas, InverseCondemnation, December 18, 2014 

Remember that case we posted about here, when it was set for oral arguments in the Hawaii Supreme Court a few months ago, where the plaintiff was asserting that the County of Hawaii Planning Department was liable for negligence for not maintaining its subdivision files accurately?

Last month, the Hawaii Supreme Court issued a unanimous opinion which declined to impose a duty of reasonable care on the Planning Department.

The opinion noted that "policy considerations counsel against the judicial creation of such a legal duty under the common law, and also hold that there is no basis under [Hawaii's open records statute or the Planning Department's rules of procedure], to impose negligence liability upon the Planning Department based on the temporary absence of a government record from its files. Slip op. at 2. Rebecca Copeland has more background on the case (including the briefs) here at her Record on Appeal blog, and you can review the oral argument recording above.

Journalist Ian Lind has also written up his thoughts on the case in a piece in Honolulu Civil Beat, "Hawaii Monitor: Do Public Agencies Have to Keep Accurate Records?"

The case is Molfino v. Yuen, which was decided by the court on Nov. 13, 2014.

The plaintiff’s application asking the Supreme Court to take up the case summarized the key legal issue:

“The policy question before this court, is whether the Hawaii County Planning Department, which issues critical rulings regarding subdivisions on Big Island properties, has a duty to exercise reasonable care in the maintenance of existing subdivision records.”

“Your first reaction may be, ‘Well, duh,’” attorney and law blogger Robert Thomas commented on his blog, InverseCondemnation.com. “But like many other things in the legal business, it isn’t necessarily as simple as all that.”

Just what they mean more generally, and for public access to government records in practice, remains to be seen. But anything that might truncate a broad view of the public’s right to know is worrisome.

. . . .

If changes to the law are needed, those should come from the legislature and not via a fix imposed by a judge, the Supreme Court concluded.

Robert Thomas, the attorney and blogger, said he wasn’t at all surprised by the court’s ruling. “I didn’t think it was a close call at all,” he said in a telephone interview.

“If you wish they should have a duty to maintain these records, and maybe they should, then go down to the legislature,” Thomas advised.

This could turn out to be a very narrow decision restricted to questions of legal liability and potential damages, and won’t trickle down in a way that makes it harder for the public and the press to gain access to public records.

But it also certainly won’t make it any easier, and the finding that there is no duty of care when it comes to maintaining public records could encourage or condone foot-dragging among agencies and personnel already reluctant to open their files to public view.

Read his entire piece for more details on the arguments of the parties, as well as the bigger context.

Molfino v. Yuen, No. SCWC-10-0000150 (Haw. Nov. 13, 2014)