Office of Information Practices

The Office of Information Practices recently issued two informal opinions and five formal opinions under the Uniform Information Practices Act, chapter 92F, Hawaii Revised Statutes (UIPA), and Sunshine Law, part I of chapter 92, HRS. The summaries of the opinions can be found on the Opinions page at oip.hawaii.gov and by clicking the links below.

U MEMO 25-15 Requester sought copies of records from the Maui County Department of Planning (Planning).  OIP found that while the majority of the responsive records withheld by Planning consisted of communications between Planning and the County of Maui Department of the Corporation Counsel (Corp Counsel), Planning had voluntarily disclosed to Requester specific parts of the communications from Corp Counsel and informed Requester that those portions of the communications were advice from Corp Counsel to Planning.  OIP concluded that, because the responsive records consisted of communications between an attorney and client that provided legal services, the responsive records were generally protected by the attorney-client privilege, but the portions of the responsive records that Planning had already voluntarily disclosed to Requester must be disclosed, as well as an email between two Planning employees that was not sent to or from Corp Counsel.

U MEMO 25-16 A record requester sought copies of records related to a murder investigation from the Maui Police Department (MPD).  The responsive records contained information likely to disrupt the progress of an ongoing investigation if disclosed, and MPD provided evidence that the investigation was still ongoing.  OIP therefore concluded that MPD could withhold the records as their disclosure would likely frustrate a legitimate government function.  OIP further found the responsive records contained personal information of witnesses and third parties, and that the significant privacy interests outweighed the public interest in disclosure.  OIP concluded that MPD could withhold identifying information about witnesses and third parties to prevent a clearly unwarranted invasion of personal privacy.

OIP Op. Ltr. 25-02 Requester sought a decision as to whether the Downtown-Chinatown Neighborhood Board No. 13 (NB 13) violated the Sunshine Law by meeting remotely, despite being informed that not all individuals on NB 13’s list of persons who requested to receive meeting notices by electronic email (Email List) had been sent timely notice of the meeting.  The Neighborhood Commission Office (NCO) sends notices on behalf of NB 13 and had “notified NB 13 that all methods of distribution were completed, however, due to a technical issue with the email program, some individuals did not receive email notification.”  NB 13 admitted it had been “advised of the potential violation of Sunshine Law” but nonetheless “voted to continue the meeting because two out of the three distribution methods were met and the information to be distributed during the meeting was important for the general public[.]”  The NCO informed OIP that most of persons on NB 13’s Email List were not actually sent a timely email notice of the meeting.  OIP therefore found that (1) NB 13 did not email a copy of its meeting notice to its Email List by the deadline; and (2)  although NB 13 had intended to send, and initially believed it had sent notice to its Email List on the deadline, by the time of the meeting NB 13 had been informed by both OIP and the NCO that the required notice had not been sent.  OIP therefore concluded that NB 13 knowingly violated the Sunshine Law’s notice requirement as set forth in section 92-7(e), HRS, when it proceeded with its meeting without having provided the required notice of that meeting.

OIP Op. Ltr. 25-03 Requester sought copies of an officer’s disciplinary and medical records from the Honolulu Police Department (HPD).  OIP found that HPD conducted a reasonable search for records responsive to the request for the officer’s disciplinary records and concluded that HPD’s response that it does not maintain records responsive to that part of the record request was proper under the UIPA.  OIP further found that a specific portion of the records responsive to the request for medical records withheld by HPD was also “about” Requester, and therefore a joint “personal record.”  OIP concluded that the exemptions to disclosure of personal records did not apply to that specific portion of the responsive records, and those records must be disclosed to Requester.  OIP also found that for the remainder of the responsive records, on balance, the officer’s privacy interest in his medical records exceeded the public’s interest in disclosure, and the information the officer held a privacy interest in was not reasonably segregable from the records.  OIP concluded that HPD properly withheld the records under the UIPA’s privacy exception, with the exception of one page of the responsive records that contained only general information.

OIP Op. Ltr. 25-04 A requester asked whether the Maui County Planning Commission (Commission) violated the Sunshine Law by failing to consider testimony submitted for a canceled meeting when the same agenda item was next heard at a later meeting.  OIP concluded that the Commission had not violated the Sunshine Law’s testimony requirement with respect to the canceled February 7 Meeting because the Sunshine Law does not require a board to distribute written testimony for a canceled meeting or a canceled agenda item.  However, OIP concluded that in the circumstances the Commission should have reasonably understood the testimony to be intended for consideration as testimony for the rescheduled meeting at which the Commission finally considered the agenda item.  The Commission’s failure to distribute the testimony before the rescheduled meeting, although unintentional, violated the Sunshine Law’s testimony requirement.

OIP Op. Ltr. 25-05 The Department of Education (DOE) reasonably responded to Requester’s record requests under the Individuals with Disabilities Education Act (IDEA), 34 CFR 300.613, and title 8, chapter 60, Hawaii Administrative Rules (Chapter 60), instead of the UIPA.  Requester’s record requests clearly invoked the IDEA and Chapter 60, and did not reference, with sufficient clarity, any other basis for requesting records to give DOE fair notice that the requests were also UIPA requests.  Without fair notice of a recognizable UIPA request, DOE did not have a duty to respond under the UIPA’s statutory scheme.  Requesters cannot invoke the UIPA’s enforcement mechanisms for requests made under the IDEA because the IDEA and UIPA are two separate and distinct statutory schemes for disclosure of records.  The UIPA does not provide requesters with a right to use the UIPA’s enforcement process to pursue a denial of a request made under a different statutory scheme, therefore, OIP cannot determine whether DOE properly provided Requester with access to a child’s educational records under the IDEA.

OIP Op. Ltr. 25-06 Requester asked whether the County of Hawaii Department of Parks and Recreation (Parks) fully responded to Requester’s request for emails and a list of name-calling that Parks attributed to Requester before the Hawaii County Ethics Board (Ethics Board).  OIP concluded that Parks had no obligation under either part II or part III of the UIPA to compile a list of name-calling from existing records or to create a new list of name-calling not already set forth in records, and that Parks had provided Requester with all the responsive records it maintained.