Posted on Jun 28, 2017 in Formal Opinions

Opinion Letter No. F17-04
June 28, 2017
Minimum Decision Records

Requesters sought a decision as to whether the Hawaii Paroling Authority (HPA) properly denied their request for their own Minimum Decision Records.

The Uniform Information Practices Act (Modified), chapter 92F, Hawaii Revised Statutes (HRS) (the UIPA) places the burden of proof on a government agency to justify its nondisclosure of records when it claims that access to a record is restricted under the UIPA.  See HRS § 92F-15(c) (2012).  The agency is required to justify its nondisclosure when it responds to the Office of Information Practices’ (OIP) Notice of Appeal, and the agency’s response must include its “explanation of its position, including the agency’s justification for the denial of access or actions complained of, with citations to the specific statutory sections and other law that support the agency’s position[.]”  Hawaii Administrative Rules (HAR) § 2-73-14(3).  If further explanation is needed, “OIP may, orally or in writing, seek any additional information from a party or any other person, and may consider input or relevant materials from any person on pending appeals.”  HAR § 2-73-15(e).  Additionally, OIP may require any party to submit to OIP the original or a copy of one or more documents necessary for its ruling, including government records at issue in an appeal.  See HAR 2-73-15(c); see also HRS § 92F-42(5), -42(9) (2012).  OIP may examine the documents in camera as necessary to preserve any claimed exception, exemption, or privilege against disclosure.  Id.

As related to Minimum Decision Records, HPA is bound to disclose these records pursuant to the Hawaii Supreme Court’s decision in De La Garza v. State of Hawaii, 129 Haw. 429, 302 P.3d 697, (Haw. 2013), which requires disclosure of the requested Minimum Decision Records to inmates as a matter of due process under Hawaii’s Constitution.  Specifically, the Court concluded that “[w]ithout access to the potentially wide range of information being considered by the HPA, the convicted person may be unable to prepare a response and rebuttal to any adverse information being considered.  In addition, the convicted person may be unable to correct any errors contained in the ‘complete report’ obtained by the HPA.  Thus, nondisclosure of such information may infringe on the convicted person’s due process right to fairness and a meaningful opportunity to be heard.”

“In light of the critical nature of the HPA’s determination of the prisoner’s minimum term of imprisonment, due process under Article I, section 5 of the Hawai‘i Constitution requires that the prisoner have timely access to all of the adverse information contained in the HPA file.  The HPA must disclose such information ‘soon enough in advance’ that the inmate has a ‘reasonable opportunity to prepare responses and rebuttal of inaccuracies.’  In the event that the HPA file of the inmate includes sensitive, or confidential personal information, the inmate is entitled to disclosure of a reasonable summary thereof.”

De La Garza at 442, 302 P.3d at 710 (quoting Labrum v. Utah State Bd. of Pardons, 870 P.2d 902, 909 (Utah 1993) (emphasis added).

Here, despite five requests, HPA did not provide the contested records for OIP’s in camera review, so OIP was unable to review the records to determine whether they were privileged.  After eight requests, HPA further failed to provide any argument to justify nondisclosure and merely asserted that the Minimum Decision Records were “working papers” protected by section 92F-22(1), HRS, without explaining how such information fell within the limited categories of records, which do not explicitly protect or even refer to “working papers.”  OIP concluded that HPA had not met its burden to justify nondisclosure of the Minimum Decision Records under Part III of the UIPA, and thus, must disclose the requested records.  Moreover, OIP’s decision that HPA must disclose the Minimum Decision Records under the UIPA is consistent with the due process disclosure obligations set forth by the Hawaii Supreme Court in De La Garza.

full text