Posted on Apr 12, 2000 in Formal Opinions

Opinion Letter No. 00-01
April 12, 2000
Public Disclosure of Legislative Materials

[Please note that opinions discussing the deliberative process privilege have been materially affected by the Hawaii Supreme Court’s majority opinion in Peer News LLC v. City and County of Honolulu, 143 Haw. 472 (Dec. 21, 2018).]

A State Senator asked the OIP for a general advisory letter regarding the public disclosure requirements for legislative materials under Hawaii’s public records law. Specifically, what is an elected official obligated to disclose when a private citizen requests access to all materials relating to the policy development of an issue, including correspondence and personal notes from a majority caucus on the issue?

The OIP advised that a government agency has the discretion to withhold from public disclosure information that it maintains as part of its decision-making function pursuant to the deliberative process privilege under section 92F-13(3), Hawaii Revised Statutes, so long as the information is not mandated to be disclosed under section 92F-12, HRS. To qualify for this privilege, the deliberative material must have been created before the adoption of an agency policy and must be “a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal policy matters.”

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