OIP ISSUES THREE NEW FORMAL OPINIONS

Posted on Jul 27, 2016 in Featured, What's New

The State Office of Information Practices (OIP) recently issued three new formal opinions, which are summarized below.  The full texts of all formal opinions are posted on the Opinions page at oip.hawaii.gov.

In OIP Op. Ltr. No. F16-03, OIP recognized the general requirement that agencies conduct a reasonable search for responsive records when receiving requests, but held that a search was not required in this case where the Hawaii Health Systems Corporation’s staff had actual knowledge that the type of record requested was never created.  Relying on federal case law, OIP found that because the agency staff knew that no recordings existed, no search was required.  OIP further found that the agency’s employees had asserted in good faith that no responsive record exists and that a search of records was not likely to uncover relevant documents. Thus, OIP concluded that the agency properly responded by denying the request for an audio or video recording of a meeting without having to conduct a search for the records.

In OIP Op. Ltr. No. F16-04, OIP concluded that the Department of Health (DOH) improperly denied access to the visitor permits authorizing persons to visit on specified dates the Kalaupapa Settlement on Molokai, Hawaii.  OIP found that section 92F-12(a)(13), HRS, expressly requires an agency to disclose certain information from each permit it issued, specifically the name, business address, type and status of the permit.  Under the UIPA’s privacy exception found in section 92F-13(1), HRS, however, the DOH could redact the Permittee’s age, home address, and personal emergency telephone number.  On the other hand, a Permittee’s business address and general business telephone number, if provided on the Visitor Permit, must be disclosed, except for the Permittee’s direct work telephone number, which could be withheld under the frustration exception of section 92F-13(3), HRS.

It is generally appropriate for the DOH to redact the name and address of the resident who is sponsoring the Permittee’s visit to Kalaupapa because the “clearly unwarranted invasion of personal privacy” exception protects this information about the Sponsor’s residency at this former settlement for Hansen’s disease patients.  However, where a Sponsor is an employee of the DOH or the federal National Park Service (NPS) and is sponsoring persons in an official capacity and on behalf of the government agency, the Sponsor’s name as a government employee and government address, if applicable, must be disclosed because the “clearly unwarranted invasion of personal privacy” exception does not apply to this government employment information.  Also, where Visitor Permits are provided to the Damien Tour operator accompanying visitors on guided tours of Kalaupapa, the DOH must disclose the name of the Sponsor, who is the tour operator, because the “clearly unwarranted invasion of personal privacy” exception does not apply to information that is already public.

In OIP Op. Ltr. No. F16-05, OIP concluded that while the Sunshine Law does not necessarily require a meeting notice to provide a street address for a meeting location, the description of the location in the meeting notice must be sufficiently detailed to reasonably allow a member of the public to actually find the meeting location.  In this case, the Agribusiness Development Corporation’s Notice of Meeting failed to adequately describe the meeting location, with the result that at least one member of the public was actually unable to find it.  This failure violated the Sunshine Law’s requirement that a board give written public notice of every meeting including “the date, time, and place of the meeting.”  HRS § 92-7(a) (2012).  Nevertheless, OIP is without authority to void any final action taken by a board, and thus need not consider whether such a remedy would have been appropriate in this case.  See HRS § 92-11 (permitting a “suit to void any final action” taken in violation of sections 92-3 and 92-7, HRS, which must be brought in court within 90 days of the action).

Additionally, OIP concluded that section 92-7(b), HRS, requires posting the notice of a board’s meeting at the meeting site “whenever feasible,” but nothing in this requirement suggests that a board must post signs directing members of the public to the meeting site, such as maps or guideposts with the use of arrows.  Further, because the Sunshine Law’s notice requirement only requires posting of the meeting notice at the meeting location when “feasible,” a board may not even be required to post the notice of its meeting at the meeting site for a particular meeting.  HRS § 92-7(b).

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