Posted on May 23, 2005 in Formal Opinions

Opinion Letter No. 05-13
May 23, 2005
Information from Survey Responses

The Department of Business, Economic Development and Tourism (“DBEDT”) asked OIP whether DBEDT can offer artists or art companies assurances that their responses to a DBEDT survey will be confidential and not subject to disclosure under the Uniform Information Practices Act (Modified), chapter 92F, Hawaii Revised Statutes (“HRS”) (“UIPA”).

The survey seeks information from artists about topics that may be commercially sensitive, including (1) the factors most important to their businesses, (2) the marketing and promotion methods they use, (3) the transportation methods they use to get products and services to market and the destinations, (4) annual sales, (5) percentage of annual sales to county, mainland, and foreign destinations, (6) number of employees, (7) direct sales broken down by buyer category, (8) company name and contact information, and (9) other marketing information the respondent wishes to provide. The artists participating in the survey will be included in a database DBEDT intends to create with the responses. DBEDT believes that without assurances of confidentiality, some respondents may be unwilling to participate in the survey.

OIP concluded that under the UIPA an agency may withhold commercial or financial information that is voluntarily submitted to it, to the extent that the submitters themselves do not customarily release the information to the public, because release of such information would impair the agency’s ability to get such information in the future and thus frustrate a legitimate function of the agency. See Haw. Rev. Stat. 92F-13(3) (1993).

DBEDT may withhold responses to the proposed voluntary survey under the UIPA’s frustration exception, but only to the extent that the information submitted is of a kind that would customarily not be released to the public by the person from whom it was obtained. DBEDT may not use the frustration exception as a basis for withholding information that the respondents customarily release to the public.

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