HAWSCT Considering Whether A County Has A Duty To Maintain Accurate Public Records
by Robert Thomas, InverseCondemnation, March 24, 2014
Here's an interesting case upcoming on the Hawaii Supreme Court's oral argument calendar that is worth following. (April 29, 2014, at 10:00 a.m. - the court is taking the show on the road, and the arguments will be at the gym at Kealakehe High School, in Kailua-Kona, on the Big Island.)
In Molfino v. Yuen, No. SCWC-10-150 (cert. app. filed Dec. 9, 2013), the petitioner asks whether a county government has any obligation to maintain accurate and complete records. Your first reaction may be "well, duh." But like many other things in the legal business, it isn't necessarily as simple as all that. Indeed, the Intermediate Court of Appeals concluded in a Summary Disposition Order (Aug. 28, 2014) that government does not have an obligation to keep its own records accurately. The ICA relied on a 1986 Hawaii Supreme Court case which held:
Without a reasonable and proper limitation of the scope of duty of care owed by the County, the County would be confronted with an unmanageable, unbearable, and totally unpredictable liability.
Slip op. at 5 (quoting Cootey v. Sun Inv. Inc., 718 P.2d 1086, 1090 (Haw. 1986)). As the Ghostbusters exclaimed, "Fire and brimstone coming down from the sky! Rivers and seas boiling! Forty years of darkness! Earthquakes, volcanoes! The dead rising from the grave! Human sacrifice! Dogs and cats, living together!"
But the issue of duty to maintain records was not presented in Cootey, which was a tort case about whether the county had a duty to make sure that a subdivision of which it approved did not create a risk of flooding on an adjacent property. But it did set out the test for determining whether the government has a duty, which requires a balancing the need for "loss redistribution," with the burden placed on government agencies. Courts have to exercise "restraint" when government is involved.
Here's the description of the case -- with the necessary factual background -- from the Judiciary's preview of the oral arguments:
This Application raises an issue of first impression in Hawaiʻi: whether a governmental entity (here, the County of Hawaiʻi’s Planning Department) owes a duty to the public to maintain accurate and complete records. Petitioner/Plaintiff-Appellant Geoffrey Molfino filed an Application for Writ of Certiorari presenting the following question: “Because the Hawaii County Planning Department maintains permanent subdivision records, for both its own purpose and public access, does the County have a duty to exercise reasonable care in their maintenance and preservation?”
According to Molfino’s Complaint, Molfino bought a 49-acre parcel of land in Ninole on June 13, 2003 and sought a determination of lots of record by letter addressed to Christopher J. Yuen, the County Planning Director, on December 24, 2003. On June 2, 2004, Yuen responded by letter stating that the parcel consisted of two pre-existing lots. In the meantime, on July 19, 2004, Molfino sold the parcel. Molfino subsequently became aware of a May 22, 2000 letter prepared by the former Planning Department Director stating that the parcel consisted of six separate lots of record. Molfino alleges that that letter was missing from the Planning Department’s files during the period he owned the parcel. The Planning Department later determined that the 49-acre parcel consisted of six lots of record and granted the new owner approval for a seven-lot subdivision.
Molfino sued the County of Hawaiʻi and Yuen (in his official capacity) for negligence, alleging that they breached a duty owed to him to maintain complete and accurate Planning Department records. Molfino alleged that the breach of this duty caused him monetary damages. Molfino supported his argument that the Planning Department had a duty to maintain accurate and complete records with the Planning Department’s Rules of Practice and Procedure, § 1-8, entitled “Public Records.” That rule states, in relevant part, “All public records shall be available for inspection by any person[.]”
The circuit court granted the defendants’ motion for summary judgment. It concluded that Rule § 1-8 requires records to be open for public inspection but does not require that the records be maintained. It also ruled that Molfino should have gone through the formal subdivision approval process instead of relying on the Planning Department’s records to determine how many lots were on his property. The circuit court then concluded that imposing a duty of care on the County would result in “unremitted liability.” The circuit court reasoned that it would be too easy for a person reviewing the Planning Department’s records to manufacture a claim against the County. Lastly, the circuit court decided that the legislative branch (not the judicial branch) was the proper entity to determine whether to impose a duty to maintain accurate records upon the County.
The Intermediate Court of Appeals affirmed the circuit court, and Molfino appealed the decision to this court.
Here are the cert application and responsive briefs:
We'll have more after the arguments.