No. 28559 (Oct. 24, 2008)
Opinion [pdf]
OPINION OF THE COURT BY NAKAYAMA, J.
Plaintiff-Appellant, Nuuanu Valley Association ("NVA"), appeals from the Circuit Court of the First Circuit's ("circuit court's") May 17, 2007 amended final judgment in favor of Defendants-Appellees City and County of Honolulu, Henry Eng, in his official capacity, and David Tanoue, in his official capacity (collectively, "Appellees"), and Intervenor-Appellee Laumaka, LLC ("Laumaka"). On appeal, NVA presents the following points of error: (1) the Uniform Information Practices Act {"the UIPA"), as provided by Hawai'i Revised Statutes (HRS) Chapter 92F, mandates that "documents provided by private developers to [a government agency] become public records when received, and written communications to private developers become public records (not mere drafts) when transmitted"; (2) statutory "exceptions . . . that would make these public records unavailable to the public for inspection" are inapplicable; (3) Appellees failed to follow its administrative rules and engaged in improper rule making; (4) development of the Laumaka subdivision will result in the "use" of state or county lands thereby triggering the environmental assessment ("EA") requirement of the Hawai'i Environmental Policy Act ("HEPA"); and (5) the circuit court abused its discretion when it denied NVA's motion for preliminary injunction. For the reasons that follow, we hold: (1) that prior to its acceptance, an engineering report submitted to a government agency in connection with a subdivision application, and any written comments made by the agency thereon, does not constitute a "government record" requiring disclosure pursuant to the UIPA; (2) that the circuit court erred in its determination that Appellees violated neither its administrative rules nor the Hawai'i Administrative Procedures Act ("HAPA"); (3) that Laumaka's subdivision does not "propose the use of state or county lands"; and (4) that NVA has not successfully carried its burden of showing irreparable damage for a preliminary injunction. Accordingly, we affirm in part and reverse in part the circuit court's May 17, 2007 amended final judgment. [footnotes omitted[
Concurring opinion by J. Acoba [pdf]
