Posted on Apr 5, 2013 in Formal Opinions

Opinion Letter No. F13-01
April 5, 2013
Personal and Government Records in
Investigative Report on Workplace Violence Complaint

Requesters ask whether the Department of Transportation (DOT) properly denied their request under Part III of the UIPA for disclosure of the investigative report (Report), which was prepared by DOT’s Office of Civil Rights (OCR) in response to a workplace violence complaint (Complaint) filed by the four Requesters. The Complaint alleges that another DOT employee (Respondent) was the aggressor in a workplace violence incident against one of the Requesters (Complainant). The other three Requesters (Witnesses) were interviewed by OCR regarding this incident.

Analytical Framework for Responding to a Personal Record Request

Because the Requesters are individuals asking for access to the Report, which contains information “about” them, DOT must first consider their records requests as “personal records” requests under Part III of the UIPA. In order to respond to a personal record request, an agency should follow this analytical framework:

1) What is the “personal record” of the individual requesting access under Part III of the UIPA? 
An agency should review the subject matter and contents of the requested record in order to ascertain what, if any, information in the record identifies and is specifically about the individual requesting access, and thereby determine whether all or a portion of the record constitutes that individual’s “personal record.” This OIP opinion partially overrules two past OIP opinions to the extent that they created a rebuttable presumption that an entire record is a personal record merely because the record mentioned an individual’s name.

2) Does an applicable Part III exemption in section 92F-22, HRS, allow the withholding of access to the personal record?
When an agency has determined that the record, or portions thereof, is an individual’s personal record, the agency may withhold the personal record from the individual only when there is an applicable Part III exemption as set forth in section 92F-22, HRS.

3) What portion, if any, is a government record subject to the public disclosure requirements of Part II of the UIPA?
Any portion that is not a personal record must be reviewed under Part II of the UIPA to determine whether the requester, as a member of the general public, would be entitled to access the government record.

4) Does an applicable Part II exception in section 92F-13, HRS, allow the non-disclosure of a government record that is not a Part III personal record?
An agency may withhold such portion of the record from public access only when it falls within an exception to required public disclosure, as set forth in section 92F-13, HRS. If no Part II exception applies, the agency must publicly disclose that portion of the government record.

Using this analytical framework, the opinion concluded that under Part III of the UIPA, most of the Report is the personal record of the Complainant since she is identified throughout the Report as the purported victim of the alleged workplace violence incident, which is the subject matter of the Report. OIP further found that limited portions of the Report are about each Witness and, therefore, constitute that Witness’ personal record. Thus, each Witness’ personal record varies and consists specifically of each Witness’ own statement in the Report, sections of the Report describing the allegations and background of the Complaint received from all four Requesters (Complainant and all Witnesses), and items of information specifically about that identified Witness in the Report’s scope of investigation and analysis.

However, certain portions of the Report are not the personal records of any of the Requesters because these portions consist of information that are not about any of the Requesters but rather are specifically and exclusively about the Respondent or other DOT employees who had been interviewed. As to such portions of the Report that are not the Requesters’ personal records, DOT’s disclosure is governed instead by provisions in Part II of the UIPA requiring public disclosure of government records to the general public unless an exception applies.

OIP found that no exemptions to disclosure in section 92F-22, HRS, allow DOT to withhold those portions from any of the Requesters. At the time of the Requesters’ personal records requests, DOT had asserted that it was not required to disclose the Report under the exemption for “investigative reports and materials, related to an upcoming, ongoing, or pending . . . administrative proceeding against the individual.” HRS § 92F-22(4)(2012). However, because the Respondent has been suspended and all proceedings have concluded, this Part III exemption does not apply to the Report at this time. Consequently, because no Part III exemption applies to the personal records, OIP concluded that DOT must disclose to each Requester those portions of the Report that comprise the particular Requester’s personal record.

OIP found certain portions of the Report do not constitute the personal record of any of the Requesters, where the information is specifically and exclusively about the Respondent and other DOT employees who were interviewed (and are not among the Requesters). Such portions that are not the Requesters’ personal records include the Report’s analysis of the other DOT employees’ credibility, their statements concerning the Respondent’s past conduct unrelated to the alleged incident, as well as the Report’s recommendations that specifically concern only the Respondent. Under Part II of the UIPA, DOT must publicly disclose to the Requesters those portions of the Report that are not “about” any of them if there are no applicable exceptions in section 92F-13, HRS.

OIP found that Part II’s “clearly unwarranted invasion of personal privacy” exception does apply to certain portions of the Report that are not any Requester’s personal record, as they are specifically and exclusively about the Respondent and other DOT employees. Specifically, OIP concluded that these other DOT employees had a significant privacy interest in the Report’s analysis about their credibility and their observations about the Respondent’s past conduct, which were unrelated to the misconduct that resulted in her suspension, and that this significant privacy interest was not outweighed by the public interest in disclosure. Because the DOT employees’ significant privacy interests outweigh the public interest in disclosure, these portions of the Report may be withheld from public disclosure under the privacy exception set forth in section 92F-13(1), HRS.

On the other hand, under Part II of the UIPA, OIP concluded that DOT must publicly disclose information in the Report related to the employment misconduct that resulted in the Respondent’s suspension, including her name, the nature of misconduct for which she was suspended, DOT’s summary of the allegations, findings of fact, conclusions of law, and the discipline imposed. The privacy exception, in section 92F-13(1), HRS, does not apply to this misconduct information because the UIPA, in section 92F-14(b)(4)(B), HRS, expressly states that the employee has no significant privacy interest in this misconduct information when the employee was suspended, and the public interest in disclosure outweighs a privacy interest that is not significant. Furthermore, as the opinion explains, the listing of DOT employees in the office, including their names, job titles, and start dates, is mandated to be public by the UIPA. HRS § 92F-12(a)(14) (2012).

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