by Andrew Walden
Filing an April 5 open records request for the check registers and corporate records of the secretive LLCs owned by the Office of Hawaiian Affairs, attorneys representing Abigail Kawananakoa effectively debunk arguments used by the LLC lawyer Kimberly Greeley in opposition to an earlier open records request--which is still pending--from Hawai'i Free Press.
UPDATE: An April 20 response from Greeley includes the following: "The State of Hawaiʻi does not control, or direct any of the Companies’ activities or business affairs. The Companies’ activities are not a required function of any government agency."
Here are some excerpts and a link to the entire filing:
From: James H Wright, attorney representing Abigail Kawananakoa
Re: 92F Requests for government records to OHA's various LLCs
Dear Ms. Greeley: April 5, 2017 (excerpts)
My office represents Abigail K. Kawananakoa, an OHA beneficiary, who is deeply concerned with what appears to be a misuse and misdirection of trust funds by the Office of Hawaiian Affairs ("OHA") and its wholly owned subsidiary LLCs. In that capacity we have been following an attempt by the Hawai’i Free Press to obtain access to the government records of certain OHA-owned limited liability companies: namely Hi'ilei Aloha LLC ("Hi'ilei Aloha), Ho'okele Pono LLC ("Ho'okele Pono"), and Hi'ipaka LLC ("Hi'ipaka") (collectively, the "OHA LLCs"). We have also received a copy of your letter, dated January 9, 2017, denying the newspaper's various Haw. Rev. Stat. §92F requests on the grounds that the OHA LLCs are not government "agencies" subject to the open disclosure of records, within the meaning of the Hawai'i Uniform Information Practices Act, HRS Chapter 92F….
…In summary, your position is that, because "the State does not control, or direct any of the Companies' activities or business affairs, and does not provide any funding for the Companies ... the Companies are not, therefore subject to the provisions of the UIPA."
Based upon our independent investigation we respectfully disagree…. Because the OHA LLCs are owned, operated, and/or managed by OHA (which is clearly a governmental entity) they are required to follow the provisions of the Uniform Information Practices Act….
…Insofar as the OHA LLCs are owned by OHA, which is an agency of the State of Hawai'i, they are subject to the provisions of the Hawai' i Uniform Information Practices Act and must produce or make available the requested documents…..
…while management of the day-to-day operations of the OHA LLCs is vested with ORA's CEO, COO, and CFO, broader administrative-level decisions fall exclusively under the authority of the LLC's sole member, OHA…..
Your contention that the OHA LLCs are not supported by taxpayer funds and that, more specifically, the Office of Hawaiian affairs does not designate any of its operating funds for use by any of the Companies, is simply without merit. According to Hi'ilei Aloha LLCs' 2015 Form 990 informational tax return filed with the IRS, the organization has received a substantial portion of its annual operating budget from "gifts, grants, contributions, and membership fees." See Exhibit "E" at p. 15. In support of its claim to be a "public charity", Hi'ilei Aloha states that "the organization is not a private foundation because it is ... (7) an organization that normally receives a substantial part of its support from a governmental unit or from the general public .... " Id. at p. 14 (emphasis added). Similarly, a November 16, 2015 independent audit of Hi 'ilei Aloha concluded that "the Company receives and is dependent on financial support from OHA, while providing financial and administrative support and services to its sub-entities, enabling them to fulfill their missions. This in turn supports the mission of OHA." See Exhibit "C"….
Hi'ilei Aloha's most recently published annual report further states:
- "We sincerely thank the Office of Hawaiian Affairs, our parent organization, without whom we would not exist. OHA's funding has allowed us to deliver the exciting and innovative services you will read about here."
- "Hi'ilei also handles the creation of new LLCs as requested by OHA, of which five have been created since 2006."
- "With funding from OHA, we launched a new program to help build capacity in Hawaiian organizations." ….
By admission of OHA and the OHA LLCs, it is abundantly clear that the OHA LLCs are very much dependent upon contributions from the Office of Hawaiian Affairs, a semiautonomous government agency which receives millions of dollars in annual funding from the Hawai'i State Legislature. Thus, your contention that the OHA LLCs are not supported by taxpayer funds is clearly erroneous….
read … Entire Letter and Related UIPA filings
UPDATE April 20, 2017: Response from LLCs Lawyer