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                                                                  Electronically Filed
                                                                  Supreme Court
                                                                  SCWC-10-0000150
                                                                  13-NOV-2014
                                                                  07:45 AM


               IN THE SUPREME COURT OF THE STATE OF HAWAII

                            ---oOo---
________________________________________________________________

                             GEOFFREY MOLFINO,
                      Petitioner/Plaintiff-Appellant,

                                       vs.

   CHRISTOPHER J. YUEN, in his capacity as Planning Director,
              County of Hawaiʻi; COUNTY OF HAWAIʻI,
                Respondents/Defendants-Appellees.
________________________________________________________________

                                SCWC-10-0000150

             CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                  (CAAP-10-0000150; CIV. NO. 07-1-0378)

                               NOVEMBER 13, 2014

     RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., AND
       CIRCUIT JUDGE NAKASONE, IN PLACE OF ACOBA, J., RECUSED

                    OPINION OF THE COURT BY McKENNA, J.

I.     Introduction

       At issue in this appeal is whether this court should impose

a duty of reasonable care on the Planning Department of the

County of Hawaiʻi to a property owner, leading to potential

negligence liability for damages allegedly sustained due to the

Planning Department’s failure to maintain all pertinent
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correspondence in its property files at all times.                We hold that

policy considerations counsel against the judicial creation of

such a legal duty under the common law, and also hold that there

is no basis under Hawaiʻi Revised Statutes (“HRS”) Chapter 92F

(the Uniform Information Practices Act (Modified), or “UIPA”),

or Rule 1-8 of the Hawaii County Planning Department Rules of

Practice and Procedure, to impose negligence liability upon the

Planning Department based on the temporary absence of a

government record from its files.            We therefore affirm the

judgment of the ICA, which affirmed the Circuit Court of the

Third Circuit’s1 order granting the County’s motion for summary

judgment on Molfino’s negligence claim.

II.     Background

        In this case, Molfino bought a piece of property on the

Hamakua Coast of the Island of Hawaiʻi, identified by Tax Map Key

(“TMK”) Number 3-2-002-035, for $350,000 in June 2003.                Molfino

wanted to create a subdivision on the property.               He visited the

Planning Department and made copies of the property’s TMK file.

Based on the property’s zoning classification, Molfino

understood that his property might consist of only two pre-

existing lots.        Allegedly missing from the TMK file at that time

was an April 2000 letter from a realtor to the former Planning

Director, which requested a pre-existing lot determination, and

        1
               The Honorable Greg K. Nakamura presided.

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the former Planning Director’s May 2000 response letter, which

stated that the property consisted of six pre-existing lots.

     Unaware of the prior six-lot determination, Molfino wrote a

letter to the Planning Department in December 2003 requesting a

pre-existing lot determination.           Based on the size of the

property and the number of homes already built upon it, Molfino

stated to the Planning Department that there was a possibility

the property actually consisted of seven pre-existing lots.

Christopher Yuen, the Planning Director, responded to Molfino’s

letter in June 2004.      Yuen’s letter stated that Molfino’s

property consisted of two pre-existing lots.           Apparently, the

April 2000 and May 2000 letters were also missing2 from the

Planning Department’s TMK files when Yuen and his employee,

Edward Cheplic, prepared the June 2004 letter.

     While awaiting Yuen’s response, Molfino entered into a

contract to sell the property for $795,000 to Mikhail Pruglo,

and the deal was closed in July 2004.          When Pruglo applied to

subdivide the property, the May 2000 letter resurfaced.              The

Planning Department honored the May 2000 determination that the

property consisted of six pre-existing lots and granted Pruglo a


     2
            The County does not dispute that these letters were temporarily
missing from the TMK file. Yuen testified in a deposition that the Planning
Department’s policy is to keep all correspondence related to a property in
the property’s TMK file “essentially forever.” There is no allegation in the
complaint, and no evidence in the record, that anyone at the Planning
Department intentionally or maliciously removed the April and May 2000
letters from the TMK file.

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six-lot subdivision.      The Planning Director inadvertently

excluded a sliver of land on the property in granting the six-

lot subdivision approval, so he revised his final subdivision

plat map to include the sliver of land as a seventh lot.              See

Kellberg v. Yuen, 131 Hawaii 513, 518, 319 P.3d 432, 437 (2014).

     Molfino discovered that Yuen admitted making a mistake in

the June 2004 letter, which initially determined that the

property consisted of only two pre-existing lots.            Molfino then

sued Yuen and the County of Hawaiʻi for negligence (among other

claims, which are no longer at issue on certiorari), alleging

that they breached a legal duty to use reasonable care in

maintaining the TMK file, and that this breach caused Molfino

monetary damages.      The County filed its Answer, raising as a

defense that it owed no duty to Molfino.

     The County later filed a motion for summary judgment on

Molfino’s negligence claim.        The County pointed out that Molfino

based his negligence claim solely on a duty to maintain records

purportedly contained in the Hawaii County Planning Department

Rules of Practice and Procedure, Rule 1-8 (“Rule 1-8”), which

provides the following:

            1-8 Public Records.
            All public records shall be available for inspection by any
            person during established office hours unless public
            inspection of such records is in violation of any other
            state, federal, or county law; provided that, except where
            such records are open under any rule of court, the
            Corporation Counsel or Prosecuting Attorney may determine
            which records may be withheld from public inspection when

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            such records pertain to the preparation of the prosecution
            or defense of any action or proceeding to which the County
            is or may be a party, or when such records do not relate to
            a matter in violation of law and are deemed necessary for
            the protection of the character or reputation of any
            person.

            Copies of records printed or reproduced for persons other
            than governmental agencies shall be given to any person,
            provided that the fees or costs prescribed in the Hawaii
            County Code are paid.

(Emphasis added).      The County argued that Rule 1-8 mandates

inspection of public records, not the maintenance of those

records.    The County then cited to Cootey v. Sun. Inv. Inc., 68

Haw. 480, 485, 718 P.2d 1086, 1090 (1986), for the proposition

that the County “is not intended to be an insurer of all the

dangers of modern life, despite its ever-increasing effort to

protect its citizens from peril.”         Further, “[w]ithout 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.”

68 Haw. at 484, 718 P.2d at 1090.         The County concluded that

imposing a legal duty upon it to maintain records that it has no

duty to keep would impermissibly reallocate the County’s

resources (a task better suited to a legislative body); expose

the County to potentially infinite liability; lengthen the

permit process timeline; and dissuade the County from enacting

subdivision rules, regulations, and laws, contrary to the public

interest.    Molfino counter-argued that “the duty to maintain



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accurate records follows from [Rule 1-8’s] duty to make public

records available to any person.”

     The circuit court agreed with the County.            In an order

granting the County’s motion for summary judgment, the circuit

court reasoned as follows:

            1. There is no express requirement in Rule § 1-8 of the
            Planning Department Rules of Practice and Procedure that
            the Planning Department records be kept in any particular
            condition. Rather, this rule allows records to be open for
            public inspection. It does not require that the records be
            maintained so that they can be relied upon by the general
            public in making major decisions;

            2. The Hawaii County Code contains a formal mechanism for
            subdivision approval which identifies how to determine
            whether real property is subject to subdivision and under
            what conditions. This determination should not be based
            upon a review of the Planning Department’s records.
            Whether or not real property is subject to subdivision and
            under what conditions based upon a review of Planning
            Department records only would be speculative, at best;

            3. Imposing a duty of care to maintain Planning Department
            records with reasonable accuracy invites unremitted
            liability. For example, it would be too easy for a person
            to manufacture a case by reviewing the records and claiming
            reliance upon the status of the records for their actions
            or omissions;

            4. If a duty and liability is to be imposed upon the
            County to maintain Planning Department records with
            unerring accuracy, it should be imposed by a legislative
            body. A legislative body is the proper entity to determine
            whether [to spend] the County’s scarce resources on such a
            duty and is capable of providing additional economic
            resources which may be necessary;

            5. The Planning Department owes no duty to keep its
            records accurate and complete for persons who seek
            information regarding the degree to which real property may
            be capable of subdivision.

The circuit court subsequently entered judgment in favor of the

County and against Molfino, and Molfino appealed.            Before the

ICA, Molfino argued for the first time that the Planning

Department’s legal duty to maintain accurate, relevant, timely,

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and complete records stems from HRS Chapter 92F.                The County

counter-argued that, even if the ICA were to consider HRS

Chapter 92F, Molfino’s argument would still fail.                The County

argued that HRS Chapter 92F simply requires access to those

records a government agency has in fact maintained.                 See Nuuanu

Valley Ass’n v. City & Cnty. of Honolulu, 119 Hawaii 90, 97, 194

P.3d 531, 538 (2008) (citing State of Hawaii Org. of Police

Officers (SHOPO) v. Soc’y of Prof’l Journalists- Univ. of Hawaii

Chapter, 83 Hawaii 378, 393, 927 P.2d 386, 401 (1996)).

        In a summary disposition order, the ICA affirmed the

circuit court’s judgment, holding that the circuit court

properly concluded “that the Planning Department did not have a

statutorily-based duty to maintain its records with unerring

accuracy.”        Molfino v. Yuen, CAAP-10-0000150 (App. Aug. 28,

2013) (SDO) at 5.          The ICA noted that Molfino had not cited any

cases “establishing a common law duty of this nature. . . .”

Id.     The ICA lastly concluded, “Strong policy considerations

compel us to reject” Molfino’s argument.              Id.    This case is now

before us on certiorari review.

III.        Standard of Review

        This court reviews a circuit court’s grant of summary

judgment de novo.          See Hawaii Cmty. Fed. Credit Union v. Keka,

94 Hawaii 213, 221, 11 P.3d 1, 9 (2000).              “[S]ummary judgment is


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appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law.”           Id.

IV.     Discussion

        In order to prevail on a negligence claim, a plaintiff is

required to prove all four of the necessary elements of

negligence:

               (1) A duty, or obligation, recognized by the law, requiring
               the defendant to conform to a certain standard of conduct,
               for the protection of others against unreasonable risks;
               (2) A failure on the defendant’s part to conform to the
               standard required: a breach of the duty; (3) A reasonably
               close causal connection between the conduct and the
               resulting injury; and (4) Actual loss or damage resulting
               to the interests of another.

Takayama v. Kaiser Found. Hosp., 81 Hawaii 486, 498-99, 923 P.2d

903, 915-16 (1996) (citation and brackets omitted)).                A

prerequisite to any negligence action is the existence of a duty

owed by the defendant to the plaintiff.             Lee v. Corregedore, 83

Hawaii 154, 158, 925 P.2d 324, 328 (1996).             The existence of a

duty is entirely a question of law.            See Hao v. Campbell Estate,

76 Hawaii 77, 80, 869 P.2d 216, 219 (1994) (citation omitted).

Whether a duty exists is a “question of fairness that involves a

weighing of the nature of the risk, the magnitude of the burden

of guarding against the risk, and the public interest in the



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proposed solution.”      Id. (citation omitted).       This court has

chosen to impose tort duties reluctantly:

            In considering whether to impose a duty of reasonable care
            on a defendant, we recognize that duty is not sacrosanct in
            itself, but only an expression of the sum total of those
            considerations of policy which lead the law to say that the
            particular plaintiff is entitled to protection. Legal
            duties are not discoverable facts of nature, but merely
            conclusory expressions that, in cases of a particular type,
            liability should be imposed for damage done. In
            determining whether or not a duty is owed, we must weigh
            the considerations of policy which favor the appellants’
            recovery against those which favor limiting the appellees’
            liability. The question of whether one owes a duty to
            another must be decided on a case-by-case basis. However,
            we are reluctant to impose a new duty upon members of our
            society without any logical, sound, and compelling reasons
            taking into consideration the social and human
            relationships in our society.

McKenzie v. Hawaii Permanente Med. Group, Inc., 98 Hawaii 296,

301, 47 P.3d 1209, 1214 (2002) (citations omitted).

     One such case in which this court declined to impose a duty

was Cootey, 68 Haw. 480, 718 P.2d 1086, a case which the County

relied upon in its moving papers, and which the circuit court

and ICA drew heavily from in ruling in the County’s favor.                In

Cootey, plaintiff homeowners (the Cooteys) sued the County of

Hawaii for negligently approving a subdivision, the development

of which allegedly caused flooding on the Cooteys’ property.                   68

Haw. at 482, 718 P.2d at 1088-89.         The Cooteys claimed that the

County owed them a “duty to administer and enforce the

applicable laws, rules and regulations and directives of the

County and the State of Hawaii. . . .”          68 Haw. at 482, 718 P.2d

at 1089.    This court disagreed, holding that such a duty was

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“too expansive in light of public policy considerations versus

liability and remedial considerations.”          68 Haw. at 483, 718

P.2d at 1089.

     In Cootey, this court noted that the determination of

whether a duty exists requires a balancing of “the policy

considerations supporting recovery by the injured party against

those favoring a limitation of the County’s liability.”              68 Haw.

at 484, 718 P.2d at 1090.       The court struck the balance in favor

of limiting the County’s liability.         68 Haw. at 483, 718 P.2d at

1089.    This court stated, “Government is not intended to be an

insurer of all the dangers of modern life, despite its ever-

increasing effort to protect its citizens from peril.”             68 Haw.

at 485, 718 P.2d at 1090.       Government should not be “liable for

all injuries sustained by private persons as a result of

governmental activity, even though doing so would spread the

losses over the largest possible base.”          Id. (citation omitted).

Government agencies must still be able to function effectively

for their own “socially approved ends.”          Id. (citation omitted).

This court held that the imposition of a duty in the Cooteys’

situation would “reorder[] priorities and forc[e] reallocation

of resources upon the other branches [primarily the legislative

branch] which make policy decisions in this regard.”             68 Haw. at

485, 486, 718 P.2d at 1090-91, 1091.          Specifically, “exposure to

such liability would unduly lengthen the permit process, or

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could very well dissuade the County from enacting rules,

regulations and laws applicable to proposed subdivisions and

intended for the protection and welfare of the public, a result

contrary to the public interest.”          68 Haw. at 486, 718 P.2d at

1091 (citations omitted).       In conclusion, this court held that

the imposition of a legal duty in Cootey would result in

“unmanageable, unbearable, and totally unpredictable liability”

for the County.     68 Haw. at 484, 718 P.2d at 1090.

     We agree with the ICA that similar policy considerations in

the instant case counsel against the judicial creation of a

legal duty for potential negligence liability to be imposed upon

the County for an alleged failure to maintain the May 2000

letter in the Planning Department’s TMK files.            First, we agree

with the ICA that there appears to be no common law basis for

imposing a legal duty to maintain government records in complete

condition at all times.       Second, we also agree with the ICA that

there is no statutory basis for imposing such a legal duty under

these circumstances.

     In this case, before the circuit court, Molfino’s sole

support for his claim that the County owed him a legal duty to

maintain accurate Planning Department records was Rule 1-8,

which requires only that “[a]ll public records shall be

available for inspection by any person,” and contains no express

duty to maintain these records in “accurate, relevant, timely,

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and complete” condition.       We note, however, that Rule 1-8 is

similar to HRS Chapter 92F in that both afford the public a

right to inspect government records.          HRS § 92F-11(a) (2012)

states, “All government records are open to public inspection

unless access is restricted or closed by law.”            Further, HRS

§ 92F-12(a)(15) (2012) requires each agency to “make available

for public inspection and duplication during regular business

hours . . . [i]nformation collected and maintained for the

purpose of making information available to the general public

. . . .”    Although not an express record-keeping requirement

under HRS §§ 92F-11(a) and -12(a)(15), HRS § 92F-2(2) (2012)

provides that one of the “underlying purposes and policies” of

HRS Chapter 92F is to “[p]rovide for accurate, relevant, timely,

and complete government records. . . .”          Thus, it is helpful to

examine HRS Chapter 92F and cases construing that chapter to

determine whether the County owes a legal duty to Molfino to

maintain accurate, relevant, timely, and complete government

records at all times.

     Two key cases construing HRS Chapter 92F are Nuuanu Valley

Ass’n, 119 Hawaii 90, 194 P.3d 531, and SHOPO, 83 Hawaii 378,

927 P.2d 386.     In these cases, we held that HRS Chapter 92F

“requires agencies to provide access to those records that are

actually maintained.”      Nuuanu Valley Ass’n, 119 Hawaii at 97,

194 P.3d at 538 (citing SHOPO, 83 Hawaii at 393, 927 P.2d at
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401).    In Nuuanu Valley Ass’n, this court further explained,

“Whether the [records] are ‘actually maintained’ [by the

government agency] depends on whether [the agency] ‘chose[] to

retain possession or control[]’ of the records.”            Id.   (citation

omitted).

     In this case, Yuen testified at his deposition that the

Planning Commission’s policy is that “any incoming or outgoing

correspondence is supposed to be kept essentially forever” in a

property’s TMK files.      Therefore, the Planning Commission

generally chooses to retain possession and control over letters

like the 2000 letters.       Thus, under Nuuanu Valley Ass’n and

SHOPO, the Planning Department failed to provide Molfino with

access to the May 2000 pre-existing lot determination, which the

Planning Department admittedly should have maintained in its TMK

files but did not.

     We must determine, however, whether this failure triggers a

legal duty under tort law leading to potential negligence

liability.    In examining the rest of Chapter 92F, however, we

fail to discern any legislative intent to impose tort liability

upon a government agency for its failure to maintain government

records in accurate, relevant, timely, and complete condition at

all times.    Legislative intent may be gleaned from reading

“statutory language in the context of the entire statute and

construing it in a manner consistent with its purpose.”              Lingle

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v. Haw. Gov’t Emps. Ass’n, AFSCME, Local 152, AFL-CIO, 107

Hawaii 178, 183, 111 P.3d 587, 592 (2005) (citation omitted).

Other provisions of HRS Chapter 92F speak to the consequences

for violating the UIPA.       HRS § 92F-17 (2012) provides the

following:

            Criminal penalties. (a) An officer or employee of an agency
            who intentionally discloses or provides a copy of a
            government record, or any confidential information
            explicitly described by specific confidentiality statutes,
            to any person or agency with actual knowledge that
            disclosure is prohibited, shall be guilty of a misdemeanor,
            unless a greater penalty is otherwise provided for by law.
            (b) A person who intentionally gains access to or obtains a
            copy of a government record by false pretense, bribery, or
            theft, with actual knowledge that access is prohibited, or
            who intentionally obtains any confidential information by
            false pretense, bribery, or theft, with actual knowledge
            that it is prohibited [by] a confidentiality statute, shall
            be guilty of a misdemeanor.

HRS § 92F-16 (2012) provides immunity from liability as follows:

“Anyone participating in good faith in the disclosure or

nondisclosure of a government record shall be immune from any

liability, civil or criminal, that might otherwise be incurred,

imposed or result from such acts or omissions.”            Thus, HRS

Chapter 92F only expressly imposes criminal penalties for

intentional violations of confidentiality statutes.3             HRS Chapter

92F, when read as a whole, does not reflect a legislative intent

to impose tort liability for merely negligent acts or omissions

of government agencies in the maintenance of public records.                  In

      3
            We express no opinion as to whether HRS Chapter 92F imposes tort
liability for bad faith disclosures or nondisclosures of government records,
as bad faith nondisclosure was not alleged in this case, nor does the record
show that the absence of the May 2000 letter from the Planning Department's
TMK files was in bad faith.

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other words, HRS Chapter 92F does not create a statutory legal

duty, flowing from the Planning Department to Molfino, to

maintain a property’s TMK file in accurate, relevant, timely,

and complete condition at all times, such that the Planning

Department should be liable for negligence because the May 2000

letter was temporarily missing from the file.

V.    Conclusion

       We hold that neither Rule 1-8 of the Hawaii County Planning

Department Rules of Practice and Procedure nor HRS Chapter 92F

provides a statutory basis for imposing negligence liability

upon the Planning Department of the County of Hawaii based on a

breach of any duty to maintain its TMK files in accurate,

relevant, timely, and complete condition at all times.               We hold

that policy considerations counsel against the judicial creation

of a legal duty under the common law, leading to negligence

liability, under the circumstances present on the record in this

case.      We therefore affirm the ICA’s judgment on appeal, which

affirmed the circuit court’s order granting the County’s motion

for summary judgment.

Peter Van Name Esser                  /s/ Mark E. Recktenwald
for petitioner
                                      /s/ Paula A. Nakayama
Laureen L. Martin
for respondents                       /s/ Sabrina S. McKenna

                                      /s/ Richard W. Pollack

                                      /s/ Karen T. Nakasone

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