On April 16 state Auditor Marion M. Higa released the first part of her office’s long-awaited report on the Lingle Administration’s decision to exempt Hawai‘i Superferry, Inc. from state environmental laws. Higa’s auditors found that “In the end, the State may have compromised its environmental policy in favor of a private company’s internal deadline that drove the entire process.” Apparently, as the following report excerpts show, Attorney General Mark Bennett and HSF did a lot to make the auditors’ lives difficult:
The attorney general raised concerns about the breadth and scope of our audit activities and requests and the impact it had on his staff. Had we been allowed to follow our normal audit process, the Department of the Attorney General would have had limited involvement and we would not have encountered delays. [OVERVIEW]
Further, the Department of the Attorney General has taken an active role in our audit, which is unique and unprecedented. We have been told that the attorney general, the first deputy attorney general, and at least three deputy attorney generals are actively involved in our audit. The attorney general had denied us access to department records and communications between his deputies and other administration officials on the State’s decision to exempt state harbor improvements relating to ferry service from an environmental review… We were told by deputy attorneys general that their participation in our audit interviews was to represent current and former Department of Transportation officials and staff and to protect attorney-client or executive privileged information, even though there is no pending litigation relating to our audit. [PAGE 15]
We were told by a deputy attorney general that he and other deputies were assigned to screen documents twice for attorney-client and executive privileged information, a unique and time-consuming process… The deputies were instructed to protect attorney-client and executive privileged information by removing entire pages of submitted documents. [PAGE 15]
We were provided with a subset of the electronic mail that we originally requested, but were not provided a list of what had been included or excluded from our request. For example, we were not provided emails from the Office of the Governor or the Office of the Lieutenant Governor, although these records had been requested… We know, however, that documents have been removed because the missing ones are referenced in other documents and emails. In many cases, there are print job cover sheets with no attached print jobs. [PAGE 16]
We were told that current and former employees who we interview would be represented by one or more deputy attorneys general to invoke either the attorney-client communication privilege or executive privilege depending on the question being asked. Usually, we interview one person at a time. We do not permit other auditee staff to sit in during the interviews because such interference may impact interviewee candor. Although we expressed concern that the presence of the deputy attorneys general might impact the interview, the deputies remained in the room. [PAGE 16]
Further, Hawaii Superferry, Inc. has minimally cooperated with our requests. At first, Hawaii Superferry, Inc. officials expressed a willingness to satisfy our document requests, but ultimately provided a small portion of the documents requested and cited confidentiality or attorney-client privilege as the reason for its non-disclosure… Upon our request for interviews, Hawaii Superferry, Inc. refused to participate unless we agreed to submit written interview questions prior to the interview. Our audit procedures do not include submission of written questions prior to the interview; thus, we did not conduct the interviews. [PAGE 17]
The administration’s withholding of records from the Auditor is in contravention to the law and prevents the Auditor from carrying out her constitutional and statutory audit authority. Finally, we find the administration’s efforts to stymie our audit disingenuous, especially after it agreed to and supported the audit provision in Act 2, SSSLH 2007. [PAGE 18] MTW
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