Posted on Oct 16, 2023 in Formal Opinions

Opinion Ltr. No. F24-01
October 16, 2023
Closed Investigation Finding and Conclusions

A Department of Transportation (DOT) employee (Employee) filed a workplace violence complaint against a coworker.  After the investigation was concluded, the Employee sought a copy of the final findings and conclusions (Findings and Conclusions).  DOT denied access to the records and Employee filed an OIP appeal.

OIP first concluded that significant portions of the Findings and Conclusions contain information about the Employee and are his personal record under Part III of the UIPA, which governs access by individuals to records about them.  The Findings and Conclusions also contain information about other individuals, including the respondent to the complaint (Respondent), and are the joint personal records of Employee and others named therein under Part III.  OIP Op. Ltr. No. F13-01.  OIP found the Employee is entitled to copies of the portions of the Findings and Conclusions that are about him and are his personal record under Part III, including portions that are the joint personal record of him and others.  DOT did not invoke any exemption to disclosure of personal records under section 92F-22, HRS, and OIP concluded that no Part III exemption applies to allow DOT to withhold any portion of Employee’s personal record.

OIP next found that portions of the Findings and Conclusions are not Employee’s personal record and must be considered government records under Part II of the UIPA.  DOT argued that the frustration exception to disclosure of government records at section 92F-13(3), HRS, allowed it to withhold entire Findings and Conclusions.  However, the frustration exception cannot be used to deny access to personal records under Part III.  For the portions of the Findings and Conclusions that are not Employee’s personal record and are subject to Part II, DOT failed to “articulate a real connection between disclosure of the particular record it is seeking to withhold and the likely frustration of a specific legitimate government function.”  Peer News LLC v. City and County of Honolulu, 143 Haw. 472, 487 (2018).  As such, OIP concluded that DOT did not meet its burden in section 92F‑15(c), HRS, to justify its denial of access to any part of the Findings and Conclusions under section 92F‑13(3), HRS.

Finally, OIP concluded that limited information about the Respondent and about a separate complaint identified in the Findings and Conclusions may be withheld in order to avoid a clearly unwarranted invasion of personal privacy in accordance with Honolulu Civil Beat, Inc. v. Department of the Attorney General, 151 Hawaii 74, 508 P.3d 1160 (2022), which concluded that an investigation into employee misconduct at a different agency must be disclosed, but that section 92F-13(1), HRS, allowed the agency to withhold certain information about others named in the investigation who were not the subjects of the investigation.

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