Perhaps it’s not so surprising that the Hawaii Supreme Court — lawyers all — would uphold the imperviousness of attorney-client privilege, when it sided this week with the Office of Hawaiian Affairs against the state auditor over sensitive OHA documents. But it is disappointing, since the ruling could provide an all-too-convenient shield for state agencies to hide behind, defaulting to business in “executive sessions” instead of in the public eye. Legislators next year should look to modify state law, to help the auditor’s office to improve fact-gathering capability when it runs up against privileged information.

The legal issue emerged when state Auditor Les Kondo launched a 2019 Legislature-mandated audit into OHA’s limited liability companies, which had raised concerns of impropriety. Kondo insisted on access to unredacted minutes and “all” information requested, per state law — but OHA withheld unredacted records between it and its legal counsel, saying those communications were covered by attorney-client privilege in state-allowed executive sessions. Kondo responded by shutting down work on the audit. That effectively suspended a $3 million allocation to OHA in 2020-21, though funding was restored the next year by the Legislature.

On Wednesday, in the fight over the unredacted documents, the Supreme Court sided with OHA, saying that state law “simply does not give the Auditor superpower to pop the attorney-client privilege,” which it called “the oldest of the privileges for confidential communications known to the common law.”

Further, the court questioned, reasonably, why Kondo had shut down the OHA audit without even attempting to use his subpoena power.

“The Auditor’s decision not to subpoena OHA’s records is odd,” the court wrote, noting that law allows such action “to compel the production of accounts, books, records, files, papers, documents, or other evidence, which the auditor reasonably believes may relate to an audit or other investigation being conducted.”

The auditor’s office serves a necessary and vital role: It assesses the workings, conduct and operations of state agencies, to help keep their conduct above board and efficient on the taxpayers’ behalf.

It’s important for the auditor to have subpoena powers, which, if used well and at all, can help to bring crucial information into the public light. It should serve as a check to state agencies to know that most of their dealings will be subject to tough scrutiny.

As for attorney-client-privileged information: The high court noted that current law gives no assurance that any “involuntary” disclosure, such as compelled by the auditor, will withstand challenge and remain confidential. Amending the law, then, to provide state agencies such assurance could help resolve the legal dilemma. Surely, enabling a wider path for robust, expedient audits of government operations would be in the public’s best interest.