Office of Information Practices

Opinion Letter No. 01-05
December 14, 2001
Disclosure of Attorney Work Product

An employee of a state agency sought to obtain a copy of a letter containing legal advice from the Department of the Attorney General concerning a State agency’s internet access policy.

The UIPA sets forth a list of government records that are not required to be disclosed. Haw. Rev. Stat. § 92F-13 (1993). The list includes “government records pertaining to the prosecution or defense of any judicial or quasi-judicial action to which the State or any county is or may be a party, to the extent that such records would not be discoverable.” Haw. Rev. Stat. § 92F-13(2) (1993).

This section exempts from disclosure any government records that would be protected under the “attorney work product doctrine.” That doctrine is expressed in Hawaii Rules of Civil Procedure 26(b)(3) and protects an attorney’s mental impressions, conclusions and opinions. The requested record discussed legal strategies behind decisions made or contemplated by the State agency.

As the employee had referenced a concern with legal problems prior to the State agency contacting the Department of the Attorney General, it was determined that the attorney work product doctrine protected the letter from disclosure as it was prepared in anticipation of litigation. Any factual information in the letter would not, however, be protected from disclosure.

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