OLELOvOIP

OIP Appeals Judge Mark's ruling

Judge Victoria Marks grants 'Olelo's MOTION FOR SUMMARY JUDGMENT (L. HONG)
and denies OIP's CROSS-MOTION FOR SUMMARY JUDGMENT.
on
Court date 6/9/05 @8:30AM

Order Denying Defendant's Motion Order Granting Plaintiff's Motion

The Court Order

OIP has until August 1, 2005 to appeal Judge Victoria Mark's apparent mistake of a ruling.

Of Counsel:
ALSTON HUNT FLOYD & ING
Attorneys At Law
A Law Corporation

PAUL ALSTON          1126-0
LEA HONG                 5558-0
18th Floor, ASB Tower
1001 Bishop Street
Honolulu, Hawai'i 96813
Telephone:   (808) 524-1800

Attorneys for Plaintiff
‘OLELO: THE CORPORATION FOR
COMMUNITY TELEVISION

SUMMONS

Complaint & Summons (PDF 210 kb)

Defendants Office of Information Practices and Les Kondo's Answer to Complaint

'Olelo Memorandum in support of Motion

Declaration of 'Olelo CEO

Declaration of Alm, Doyle, Schuler, & Yoza

CROSS-MOTION FOR SUMMARY JUDGMENT
MEMORANDUM IN SUPPORT OF DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT
and DECLARATION OF LESLIE H KONDO & C/S (661 kb);
w EXHIBITS 1 2 (PDF 105 kb) & 3 (PDF 1.9 mb)

Most Recently Posted (June 8, 2005 8:07 pm):
OIP MEMORANDUM IN OPPOSITION TO PLTFF'S MOTION FOR SUMMARY JUDGMENT
(354 kb)

PLTFF'S MEMORANDUM IN OPPOSITION TO DEFTS' CROSS-MOTION FOR SUMMARY JUDGMENT (PDF 2 megs, exhibits not posted as it would be space, time, and cost prohibitive)

'Olelo's reply Memorandum in Support of Its Motion for Summary Judgment
(PDF 382 kb)

OIP Reply Memorandum to 'Olelo's Memorandum in Opposition to OIP's Cross-motion for Summary Judgement (PDF 611 kb)

'Olelo's Errata to their Memorandum in Opposition to OIP's Cross-Motion for Summary Judgement (PDF 206 kb)

Supporting documents:

DCCA appointed advisory committee and first board directors documents which show an informal opinion of whether PEGs could be considered a "public agency" may have been asked of
Judge Mark's husband back in 1989

Morales Lawsuit (plaintiff only, PDF 1.2 megs)

OIP opinion re: Public Disclosure Info on 'Olelo forms

OIP opinion re: Public Disclosure Info on Ho'ike forms

OIP Opinion 02-08 re: 'Olelo & Ho'ike are agencies for UIPA

for up to the minute CIVIL # 1CC04-1-001520 info use Hawai`i State Judiciary's Ho`ohiki
(must allow cookies)

Ho'ohiki Document list (as of July 21, 2005)

Newspaper Articles:

Public access TV must open records September 22, 2002 HA

Olelo sues on grounds it's not a state agency September 3, 2004 PBN

A fistful of stories our dailies don't touch, Big local news, small coverage
3. Real public access September 01, 2004 Honolulu Weekly

`Olelo Committed to Protecting Client Privacy and Preserving Its Independence as a Private, Non-Profit Organization (w comments)

Motions & Counterclaims UPDATED Court Documents 4/15/05

AG opinion whether PEGs can be audited by Legislative Auditor

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAI'I

‘OLELO: THE CORPORATION FOR
COMMUNITY TELEVISION,

Plaintiff,

vs.

OFFICE OF INFORMATION PRACTICES
and LES KONDO, Director) of the Office of Information Practices,
in his official capacity,

Defendants.

CIVIL NO. 04-1-1520-08 VSM
(Declaratory Judgment)

COMPLAINT FOR DECLARATORY
JUDGMENT; EXHIBITS A-I;
SUMMONS

COMPLAINT FOR DECLARATORY JUDGMENT

Plaintiff ‘Olelo: The Corporation for Community Television " ('Olelo") alleges as follows:

page 1

A.   The Parties

1.   ‘Olelo is a private non-profit corporation registered to do business in the State of Hawai’i, with its principal place of business in Honolulu, Hawai’i. ‘Olelo was incorporated on or about September 22, 1989.

2.   Defendant Office of Information Practices, State of Hawaii ("OIP") is an agency or instrumentality of the State of Hawai’i located in Honolulu, Hawai'i.

3.   Defendant Les Kondo is the Director of OIP and is sued in his official capacity,

4.   The Uniform Information Practices Act, HRS Chapter 92F (“UIPA”), governs public access to government records and information.

5.   Under UIPA, the OIP:

a.   reviews and rules upon state agencies’ denials of the public's request for information or records under UIPA, HRS § 92F-42(1);

b.   provides advisory opinions concerning state agencies functions and responsibilities under UIPA. HRS 92F-42(2);

c.   upon the request ot any person, provides advisory opinions or other information regarding that person's rights and the functions and responsibilities of agencies under UIPA, HRS § 92F-42(3);

page 2

d.    conducts inquiries into agencies’ compliance with UIPA and investigating possible violations, HRS 92F-42(4);

e.   examines the records of state agencies and enforces that power in the courts, HRS 92F-42(5);

f.   recommends disciplinary action to appropriate officers of state agencies for violators of UIPA, HRS 92F-42(6); and

g.   appears as a party in cases where the provisions of UIPA are called into question. HRS 92F-42(16).

B.   Jurisdiction and Venue

6.   This Court has jurisdiction over this matter pursuant to HRS §§ 632-1, 561-1, 603-21.5(3).

7.   Venue is appropriate in this circuit under HRS § 603-36(5) because the First Circuit is where the claim for relief arose and the Defendants are domiciled.

C.   Background Facts

8.   On or about October 20, 1993, OIP issued an advisory opinion letter concluding that Akaku - Maui Community Television, Inc. (“Akaku") was private non-profit corporation not “owned, operated or managed” by the Department of Commerce and Consumer Affairs of the State of Hawai’i ("DCCA”), or any State or county agency under UIPA. OIP Op. Ltr. No. 93-18 (pdf), attached as Exhibit A.

page 3

9. On or about December 13, 1994, OIP issued an advisory opinion letter concluding that Na Leo ‘0 Hawai’i, Inc. (“Na Leo”) was a private nonprofit corporation not “owned, operated or managed” by the DCCA or any State or county agency, and therefore was not a State “agency under UIPA. OIP Op. Ltr. No. 94-24 (pdf), attached as Exhibit B.

10.   On or about December 13, 1994, OIP issued an advisory opinion letter concluding that Ho'ike: Kauai Community Television, Inc. was a private non-profit corporation not “owned, operated or managed” by the DCCA under UIPA, and therefore was not a State “agency” under UIPA. OIP Op. Ltr. No. 94 23 (pdf), attached as Exhibit C.

11.    Olelo, Akaku, Na Leo and Ho'ike are all private non-profit corporations that operate the public, educational, and government community access cable channels (collectively, “PEG access channels”) on their respective islands. ‘Olelo operates the O’ahu PEG access channels. Akaku operates the Maui PEG access channels. Na Leo operates the Hawai’i island PEG access channels. Ho'ike operates the Kaua’i PEG access channels.

12.   Olelo has existed as a non-profit corporation since 1989 and currently operates the PEG access channels on O'ahu pursuant to a contract between itself and the Department of Commerce and Consumer Affairs (“DCCA”) dated December 24, 1998, attached hereto as Exhibit D. The Division of Cable under the DCCA regulates cable companies and PEG access channels.

page 4

13.   On or about September 6, 2002, OIP issued an advisory opinion letter reconsidering its conclusions OIP issued an advisory opinion in OIP Op. Ltr. No. 93-18. OIP Op. Ltr. No. OIP 94-24, and OIP Op. Ltr. No. 94 23. Op. Ltr. No. 02-08 (hereinafter “2002 Opinion"), attached hereto as Exhibit E.

14.   In the 2002 Opinion, OIP concluded that ‘Olelo and Ho’ike were non-profit corporations “owned operated, or managed” by the State and were therefore State “agencies” under UIPA, HRS § 92F-3.

15.   ‘Olelo disagreed with OIP's conclusion in the 2002 Opinion as set forth in its letter dated December 14, 2001 addressed to OIP, letter dated September 5, 2003 addressed to DCCA, and letter dated July 26, 2004 addressed to OIP, attached as Exhibits F, G and H, respectively. ‘Olelo still disagrees with the 2002 Opinion.

COUNT I
(Declaratory Judgment)

16. ‘Olelo realleges and incorporates by reference all prior allegations as if fully set forth herein.

17. There is a current and actual controversy between ‘Olelo and OIP regarding the accuracy of the 2002 Opinion and whether ‘Olelo must comply with UIPA. In July 2004, OIP directed ‘Olelo to release documents under UIPA (see Exhibit I)¹. ‘Olelo denies that OIP has authority to direct ‘Olelo to release any documents, much less the documents described in Exhibit I, which affect the privacy of the individuals identified in the disputed records.

1 my insertion (please also see 'Olelo attorney letter to OIP dated July 21, 2004)

page 5

WHEREFORE, ‘Olelo prays for the following relief:

a.      A declaratory judgment that 'Olelo is not “owned, operated, or managed” by the State under UIPA;

b.     A declaratory judgment that ‘Olelo is not a State “agency” under UIPA;

c,    ‘Olelo’s attorneys fees and costs; and

d.     Such other relief that this Court finds just and equitable. Honolulu, Hawai’i, August 18 , 2004.

DATED: Honolulu, Hawai'i, August 18, 2004

_____signature of Lea Hong_____
PAUL ALSTON
LEA HONG
Attorneys for Plaintiff ‘OLELO: THE
CORPORATION FOR COMMUNITY
TELEVISION

SUMMONS