Posted on May 18, 1998 in Formal Opinions

Opinion Letter No. 98-03
May 18, 1998
Attorney Work Product

[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 Office of the Prosecuting Attorney for the City and County of Honolulu is not required to disclose internal memoranda nor an internal work order which contain information protected by the attorney work product privilege.

Section 92F-13(1), Hawaii Revised Statutes, protects from public disclosure information that would not be discoverable in a judicial or quasi-judicial action to which the State or County is or may be a party. The Prosecutor’s Office alleges the facts show that the records requester may be collecting information to file a lawsuit against the City, and asserts that it would object to discovery of the requested records because they contain attorney work product.

In addition, because the requested records contain work product, they are subject to Rule 26 of the Hawaii Rules of Civil Procedure (“HRCP Rule 26”), which protects the data from discovery. The OIP has opined in the past that information protected by judicial rule (such as HRCP Rule 26) is also protected from disclosure under section 92F-13(3), Hawaii Revised Statutes, which protects information if disclosure would cause the frustration of a legitimate government function. However, consistent with a prior OIP opinion, any factual information contained in the requested records that has already been made available to the requester, should be provided, insofar as that information is reasonably segregable from nonpublic portions of the records.

full text