Convention center
costs locked up

The state says it does not have to
bare the spending details

By Ian Lind
Star-Bulletin

The state says it's "don't ask, don't tell" when it comes to details of where the $200 million spent for construction of the new convention center has gone.

In a court case now drawing the attention and concern of open-government advocates, attorneys for the state say the Convention Center Authority does not have to disclose records of payments to dozens of subcontractors working on the huge construction project.

The state contends the documents are not government records because they are in the possession of the contractor and were never held by the authority.

In court papers, the state says it "does not have, does not want, and does not need" information about subcontracts because of its lump sum, fixed-price contract with Nordic-PCL Joint Venture, the primary contractor. And the state says if it isn't interested in the records, the public has no right to see them either.

But "ignorance is not bliss and willful ignorance is not a defense" when the public's right to know is involved, responded attorney Jeff Portnoy, who represents the Honolulu Advertiser.

The case stems from the newspaper's request last year for a list of subcontractors, the nature of their work and payments to each. When the Convention Center Authority refused to provide the information, the paper sued.

The state eventually released a list of subcontractors, but continues to refuse to disclose what they have been paid.

That information is important because the "the so-called firm fixed-price contract is, in practical terms, neither firm nor fixed," Portnoy argued in court documents last month.

Portnoy pointed to a list of 113 change orders, or amendments to the original contract, that added more than $5.5 million to the cost of the project. Those changes are billed to the state on a "cost plus" basis, where the state pays the actual cost plus an agreed upon percentage, Portnoy said.

Portnoy contends that since the contract gives the state the right to inspect all records related to the convention center project, those should be considered government records subject to public disclosure no matter where they are physically stored.

The Office of Information Practices agrees. OIP Director Moya Davenport Gray told the Star-Bulletin last week that the state's position runs against her agency's legal advice. Two key OIP opinions in 1992 and 1995 concluded that records of government contracts are public even if they are held by a third party.

OIP is an independent agency assigned to the attorney general's office for administrative purposes only, but its 1992 opinion was reviewed and approved by the attorney general's Appellate and Opinion Review Committee, the same approval process used for formal legal opinions issued by the AG's office.

It is not clear why the state subsequently decided to oppose OIP's view in court. Judge Kevin S.C. Chang, in a recent opinion, called the decision "curious" in light of the prior agreement and past state conformance with the OIP advice.

Both Gray and Attorney General Margery Bronster say this is the first time the state has rejected the legal advice of OIP during litigation. Under state law, OIP has primarily responsibility to interpret the public record statutes.

Bronster cautioned against drawing conclusions from the current conflict between her office and OIP."I'm not sure that we have such a tremendous level of disagreement. If we entered into the contract ourselves, and the documents were in our files, we would be in agreement on disclosing them," Bronster said.

Bronster also said decisions about the case were not affected by the presence of her husband, Servco Pacific chairman Mark Fukunaga, on the Convention Center Authority board. Fukunaga was appointed to the board a year ago.

"I can assure you that no position taken by this office was influenced by the fact that my husband is on the board," Bronster said. "Whenever my husband is involved, I make a decision if there is a conflict. In this case, I don't think there is, but there have been a number of situations in the past where I have recused myself."

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See also our Locked Out series