Posted on May 3, 2004 in Formal Opinions

Opinion Letter No. 04-09
May 3, 2004
Anonymous Testimony and Liability for Disclosure
of Records Containing Defamatory Statements

[NOTE:  This opinion was partially overruled by OIP Op. Ltr. No. 06-04.]

The OIP was asked for an opinion on receipt and disclosure of testimony provided to boards subject to the Sunshine Law.

The OIP opined that, because the Sunshine Law requires that “all interested persons” be given the opportunity to provide written and oral testimony on agenda items (see Haw. Rev. Stat. § 92-3 (1993)), in keeping with the Sunshine Law’s policy of liberally construing its provisions in favor of openness, it is not appropriate to condition submission of testimony on whether a potential testifier identifies himself or herself. Because boards “shall” allow interested persons the opportunity to submit testimony, they do not have authority to refuse anonymous testimony.

The OIP also opined that an agency or agency employee is immune from liability under the UIPA for disclosing testimony that may contain defamatory statements. The UIPA requires that government records be public, unless access is closed by law. Haw. Rev. Stat. § 92F-11(a) (1993). Written testimony received by a board at a public meeting is public, and copies of such testimony should be made available upon request.

Because the OIP is of the opinion that the UIPA requires agencies to disclose public testimony upon request, the OIP believes that section 92F-16, HRS, provides agency employees with immunity from criminal or civil liability for such disclosures. The OIP notes, however, that section 92F-16, HRS, has never been tested in court.

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