Openline May-June 1998

Posted on Jun 1, 1998 in Newsletter

1998 Legislative Wrap-Up
Recent OIP Opinions
Brief Notes

1998 Legislative Wrap-Up

The Office of Information Practices (OIP) reviewed, in total, 340 Legislative initiatives (including 151 carried over from the 1997 session) for their effect on government information practices during the 1998 Legislative Session. Of those measures, 269 were closely monitored as they progressed through the House and Senate. The bills listed below passed both Houses of the Legislature and will, if enacted by the Governor, create substantive changes in information practices in the State of Hawaii.

HB 2331, HD 1, SD 1
Condominium Property Regimes
Increases the protection of certain privacy rights of board members of apartment owner associations.

HB 2437, HD 1, SD 1
Controlled Substances
This bill, as originally proposed, would allow law enforcement officers to have access to pharmacies’ prescription information without first obtaining a subpoena. The OIP testified that such a provision would violate individuals’ privacy rights under the state constitution and the UIPA and recommended its removal. The bill was passed without this provision.

HB 2500, HD 1, SD 1, CD1
The State Budget
Among other things, this bill reduces the budget for the Office of Information Practices by approximately 38 percent.

HB 2552, HD 1, SD 3, CD 1
Relating to Government
Among other things, this bill increases the costs for photocopies of government records from not less than 25 cents to not less than 50 cents per page. Allows fees for copies of divorce certificates from the Department of Health. Makes public the addresses of applicants for a variance to lead-based paint standards at the Department of Health.

HB 2774, SD 1
The Uniform Information Practices Act (Modified)
Requires that the OIP be notified in writing at the time a civil action relating to Chapter 92F, HRS, is filed.

HB 3257, HD 2, SD 1, CD 1
Criminal History Checks
Authorizes all counties to collect data, including criminal history record checks, about employees. Criminal history record checks shall not be conducted on persons employed continuously on a salaried basis prior to June 1, 1998.

HB 3528, HD 1, SD 2, CD 1
Employment Practices
Allows prospective employers to consider criminal conviction records, but only if conviction record bears a rational relationship to duties and responsibilities of that position, and only after a conditional offer of employment is made.

SB 0632, SD 2, HD 3, CD 1
Traffic Enforcement
Establishes a three-year demonstration project in each of the counties to provide for the implementation of photo speed imaging detector and photo red light imaging systems to improve traffic enforcement. If enacted, this bill will allow the counties to contract with a private contractor who shall have access to motor vehicle owners’ names and addresses and will issue citations or summonses by mail. The private contractor’s use of the motor vehicle owners’ names and addresses shall be used only as is necessary to carry out the provisions of the contract and the purposes of this bill.

SB 2786, HD 1, CD 1
Sex Offender Registration
Clarifies sex offender registration requirements and public access to addresses and vehicle registration. Requires sex offenders to provide a statement pertaining to mental health treatment and citizenship. Provides that sex offenders need only provide the street name and zip code of a future address, making the reporting requirement consistent with that required for the sex offender’s current address. Specifies the vehicle information required to be reported by the offender and clarifies the requirements for updates of significant changes to the registration information. Eliminates duplicate requirement for collection of blood and saliva.

SB 2836, SD 1, HD 1
Insurance Fraud
Provides that information collected pursuant to investigations into insurance fraud are subject to protection from public disclosure as allowed by chapter 92F and section 431:2-209, Hawaii Revised Statutes.

SB 2983, SD 2, HD 2, CD 1
The Office of Information Practices
Requires the OIP to receive complaints about the open meetings law. Designates OIP as a temporary office for a special purpose administratively attached to the Office of the Lieutenant Governor.

SB 2987, SD 2, HD 3, CD 1
Child Protection
Allows physicians to share medical information of a child in the Child Protective Services system, and retains confidentiality of a foster child’s medical information.

SB 3088, SD 1, HD 2, CD 1
Job Reference Liability
Immunizes employers from civil liability for disclosing information about a current or former employee to a prospective employer of that employee.

Recent OIP Opinions

Disclosure of Hospital Eligible Charges
Kona Community Hospital must disclose the eligible charges contained on contracts executed between itself and two private health care benefits companies. Eligible charges are the amounts that a health care benefits company uses to calculate and reimburse the Hospital for its medical services to the health care benefits companies’ enrollees. An agency is not required to disclose business and financial information if: (1) the information is confidential business information, and (2) the disclosure would frustrate the agency’s legitimate government function.

The Hospital alleged that disclosing the eligible charges would not frustrate its legitimate government functions. Furthermore, the OIP determined that the eligible charges did not constitute confidential business information. Accordingly, as disclosure would not frustrate the agency’s legitimate government function, the eligible charges must be disclosed to the public. [OIP Op. Ltr. No. 98-2, April 24, 1998]

Attorney Work Product
The Office of the Prosecuting Attorney for the City and County of Honolulu is not required to disclose internal memoranda nor an internal work order which contain information protected by the attorney work product privilege. Section 92F-13(1), Hawaii Revised Statutes, protects from public disclosure information that would not be discoverable in a judicial or quasi-judicial action to which the State or County is or may be a party.

The Prosecutor’s Office alleges the facts show that the records requester may be collecting information to file a lawsuit against the City, and asserts that it would object to discovery of the requested records because they contain attorney work product. In addition, because the requested records contain work product, they are subject to Rule 26 of the Hawaii Rules of Civil Procedure (“HRCP Rule 26”), which protects the data from discovery.

The OIP has opined in the past that information protected by judicial rule (such as HRCP Rule 26) is also protected from disclosure under section 92F-13(3), Hawaii Revised Statutes, which protects information if disclosure would cause the frustration of a legitimate government function. However, consistent with a prior OIP opinion, any factual information contained in the requested records that has already been made available to the requester, should be provided, insofar as that information is reasonably segregable from nonpublic portions of the records. [OIP Op. Ltr. No. 98-3, May 11, 1998]

Brief Notes . . .
The Office of Information Practices conducted four informational briefings in May and June to explain its proposed public records rules to the public. Members of the public joined with representatives from government agencies, private businesses, non-profit organizations, and the news media to listen and ask questions on the islands of Oahu, Hawaii, Kauai, and Maui. . . . OIP staff attorneys also conducted UIPA Basics training for employees from the Department of Human Resources Development, the Office of the Lieutenant Governor, and other agencies in the past few weeks. . . . The OIP’s new web site, at, received more than 3,300 hits during the month of May.