OIP’S NEWEST OPINIONS

Posted on Dec 23, 2016 in Featured, What's New

The state Office of Information Practices (OIP) issued six new opinions in the first half of FY 2017, including two formal opinions.  The entire text of the formal opinions and the summaries of all opinions are posted on OIP’s opinions page at oip.hawaii.gov and are briefly described as follows.

F17-01:  Requester, who was the prior Plan Administrator of a collectively bargained workers’ compensation (CBWC) program approved by the Department of Labor and Industrial Relations Disability Compensation Division (DLIR-DCD), had been denied access to certain Attachments to the CBWC Addendum prepared by a Successor Plan Administrator and approved by DLIR-DCD.  While one Attachment was disclosed, the remaining nine “Other Attachments” had been withheld and consisted of documents such as a description of the group overseeing the CBWC program; list of service providers for independent medical evaluations, vocational rehabilitation, mediation and arbitration; an explanation of the alternative dispute resolution program; and forms. OIP determined that these Other Attachments were not protected from disclosure as being attorney work product because they were not prepared in anticipation of litigation.  OIP also determined that the disclosure would not frustrate a legitimate government objective as this exception had not been raised by the DLIR-DCD.  Even if the frustration exception had been raised, OIP held that the Other Attachments did not qualify as confidential commercial and financial information, and were also not trade secrets.  Therefore, OIP concluded that the Other Attachments must be disclosed to the Requester.

F17-02:  Requester had been denied access to a submittal filed with the Public Utilities Commission (PUC), which was covered by a protective order issued by the PUC that protected confidential information from disclosure under the UIPA.  Under the PUC’s own rules, the protective order may not be used to justify withholding information that does not fall within an exception to the UIPA.  OIP found that with limited exceptions, costs and overhead information submitted to the PUC could be withheld as confidential commercial and financial information under HRS Section 92F-13(3) (2012), as disclosure could likely cause substantial competitive harm and the information must remain confidential in order to avoid the frustration of a legitimate government objective.  Other information that may already be public knowledge and generally constitutes mundane information, such as narrative descriptions, correspondence, loan agreements, and other non-cost information, could not be withheld as confidential commercial or financial information.  Technical information and details of the network infrastructure and types of equipment could be withheld to prevent compromising physical or electronic security, and direct business contact information could also be withheld.

U Memo 17-1 and U Memo 17-2:  Both informal opinions concerned requests for Presentence Investigation Reports (PSI), which the Department of Public Safety (PSD) eventually began providing after appeals to OIP had been opened.

S Memo 17-1:  This Sunshine Law memorandum opinion rescinded S Memo 16-4 and contains a revised footnote 3 explaining how an agency could possibly post proposed rules on the website of the Office of the Lt. Governor (OLG), as an alternative to creating detailed descriptions of proposed rules for meeting agendas.  Except for this footnote and after concluding that a meeting agenda for the Small Business Regulatory Review Board (SBRRB) improperly listed the wrong website, OIP left intact the remainder of its original holdings in S Memo 16-4 that found no other Sunshine Law violations.

S Memo 17-2:  The Hawaii Civil Rights Commission (HCRC), which usually meets in a secured building, asked OIP whether it could require members of the public to present identification and sign in before entering the secured building to attend a Sunshine Law meeting.

Following the majority of states that have weighed in on this issue either through statute or administrative opinion, OIP concluded that a requirement for members of the public to identify themselves as a precondition of access to a public meeting would be contrary to the Sunshine Law’s “all persons” standard, as it would have the effect of excluding those persons who did not have a driver’s license or other acceptable proof of personal identification on hand or who preferred to remain anonymous.  Thus, any requirement that members of the public show proof of personal identification to a security guard prior to attending a meeting is not consistent with the Sunshine Law’s open meeting requirement.  However, OIP noted that other security procedures such as a metal detector or a bag search may not violate open meetings laws.

For the latest open government news, check for archived copies of What’s New articles that are posted here or can be e-mailed upon request. To be added to OIP’s e-mail list, please e-mail oip@hawaii.gov.  Also, if you would like to receive What’s New articles or attachments in a Word format, please contact OIP at (808) 586-1400 or oip@hawaii.gov.