Posted on Jul 9, 2004 in Formal Opinions

Opinion Letter No. 04-12
July 9, 2004
Disclosure of Intra-office Email Messages

[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).]

The Division of Aquatic Resources (“DAR”) of the Department of Land and Natural Resources asked for an opinion as to required public access to intra-agency emails concerning an alleged violation of law. The OIP advised that the names of the individuals alleged to have violated the law, but not charged, could generally be withheld under the UIPA, as there is a significant privacy interest in information identifiable as part of an investigation into a possible violation of criminal law, except to the extent that disclosure is necessary to prosecute the violation or continue the investigation. In making a disclosure determination under the privacy exception, the individual privacy interest is balanced against the public’s interest in disclosure. As the emails did not reveal any wrongdoing by DAR, the OIP determined that individual’s identity could be withheld.

The OIP also opined that the deliberative process privilege authorized withholding of almost all of the emails. This privilege comes into play when disclosure would frustrate a legitimate government function and is authorized so that agencies can candidly and freely exchange ideas and opinions. The document must contain a communication that is “antecedent to the adoption of an agency policy” and “a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal policy matters.” The emails reviewed contained a discussion of different ways of interpreting a law. As the DAR advised the OIP that a final decision was not made as to what the DAR believes to be a conclusive interpretation of the law, the OIP concluded that the DAR is authorized to withhold access to deliberative material contained in the mails.

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