Posted on Jun 5, 2014 in Formal Opinions

Opinion Letter No. F14-01
June 5, 2014
Denial of Access to a Corporation Counsel Opinion

A requester asked whether the Department of Planning and Permitting, City & County of Honolulu (DPP), is required by the UIPA to disclose an opinion issued by the Department of the Corporation Counsel, City & County of Honolulu (Corporation Counsel), regarding the permitted uses of the Waikele Caves (Memorandum).

OIP concluded that the Memorandum is not subject to mandatory disclosure under section 92F-12(a)(1) or (2), HRS.

OIP also found that the Memorandum contains confidential communications between DPP and the Corporation Counsel that are protected from disclosure by the attorney-client privilege under Rule 503, Hawaii Rules of Evidence (HRE), and, as such, may be withheld from public disclosure under section 92F-13(2), (3) and (4), HRS.

OIP further concludedthat DPP did not voluntarily waive the attorney-client privilege, which protects the Memorandum from disclosure under Rule 503, HRE, because DPP was required by the UIPA to provide the Memorandum to OIP for an in camera review.  Moreover, the mandatory disclosure of the Memorandum by DPP to OIP for an in camera review is, in itself, a privileged communication under Rule 502, HRE, and not subject to waiver under Rule 511, HRE.  Consequently, the Memorandum is protected from disclosure under OIP’s administrative rules at subsections 2-73-15(c) and (d), HAR, and the UIPA at section 92F-13(2) and (4), HRS.

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