U Memo 17-2Posted on Oct 14, 2016 in Informal Opinions - UIPA Opinions
U Memo 17-2
October 14, 2016
Presentence Investigation Report: Failure to Provide Notice to Requester
Requester sought a decision as to whether the Department of Public Safety (PSD) is required to provide Requester with a copy of his Presentence Investigation Report (PSI) under Part III of the UIPA.
Based on PSD’s representations that it was advised by the Department of the Attorney General (AG) to provide access to PSIs and PSD’s assertion that it informed Requester that it would disclose the PSI upon receipt of his prepayment, OIP found that PSD waived any argument that Requester’s PSI may be withheld. See OIP Op. Ltr. No. 92-26 (opining that an agency may waive the deliberative process privilege by disclosing the contents of a draft report when it permits inspection and copying of the report by persons outside of the agency).
Because Requester alleged that he had never received notice of PSD’s intent to release his PSI to him, OIP concluded that PSD should provide its Notice to Requester (Notice) within ten business days of its receipt of OIP’s Decision. After PSD’s receipt of prepayment of costs, PSD must disclose a copy of the requested PSI to Requester. See Hawaii Administrative Rules (HAR) § 2-71-13(b). PSD should take steps to ensure Requester receives this second Notice.
If no prepayment is required, PSD may instead simply send Requester a copy of his unredacted PSI within ten business days of its receipt of OIP’s Decision.
Whether or not prepayment is required, if PSD intends to make redactions, it should provide to Requester, within ten business days of PSD’s receipt of OIP’s Decision, a Notice that identifies the specific parts of the record that will not be disclosed, along with the specific legal authorities under sections 92F-13, -22, Hawaii Revised Statutes (HRS), or other laws. See HAR § 2-71-14(b).