Posted on Sep 25, 2007 in Formal Opinions

Opinion Letter No. 07-11
September 25, 2007
Applications for Permits to Enter Marine Refuge

[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 Department of Land and Natural Resources (DLNR) requested OIP for an opinion regarding public disclosure of the permit applications for entry and activity in the Northwestern Hawaiian Islands Refuge (Applications), as well as related records.

OIP opined that the Applications must generally be disclosed upon request, but DLNR may withhold certain limited information. First, under the UIPA’s privacy exception, DLNR may withhold personal information, such as personal contact information and social security numbers, which sheds no light on an application’s consideration by its board (BLNR). Unless and until DLNR submits an Application to BLNR for approval at a meeting, DLNR may also withhold from an Application before requested disclosure: medical history information, personal financial information, and personal details relating to proposed cultural activities. Once BLNR gives public notice on its agenda that it will be considering an Application at a public meeting, these types of information must be disclosed to the extent that they are relevant to BLNR’s consideration of the Application and, thus, will likely be discussed at its public meeting.

DLNR may also withhold information that it finds to be confidential commercial or financial information or proprietary information because such information is exempt from public disclosure under the UIPA’s “frustration of a legitimate government function” exception. In addition, under the “frustration” exception, DLNR is also not required to disclose recommendations and comments DLNR receives from staff and outside experts as well as its recommendations to BLNR that are predecisional and deliberative in nature, unless BLNR waives this exemption by publicly disclosing these records, or specifically referring to or incorporating them in its decision.

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