Posted on May 6, 2016 in Formal Opinions

Opinion Letter No. F16-03
May 6, 2016
No Duty to Search for Records that Do Not Exist

An individual made a request to the Hawaii Health Systems Corporation’s (HHSC) West Hawaii Regional Board (WHRB) Chair for copies of or to inspect the audio and/or video recordings of the March 13, 2013 WHRB meeting.  Requester received a response from HHSC’s Corporate Director of Risk Management (CDRM) which stated that the request was being denied because no audio or video recording was made of the meeting.  Requester and his spouse asked to appeal HHSC’s response based on their “distrust” of the CDRM.

The UIPA contains affirmative disclosure responsibilities.  Agencies must make government records available for inspection and copying during regular business hours.  So long as an agency maintains the information in the form requested by a UIPA requester, the agency must generally provide a copy of that record in the format requested unless doing so might significantly risk damage, loss, or destruction of the original records.  However, the UIPA does not impose an affirmative obligation on agencies to maintain records.  Other laws may exist that require the creation or retention of records by agencies, but the UIPA contains no such requirements.

HHSC provided OIP with evidence to show that WHRB does not make audio or video recordings of its meetings, including the fact that WHRB’s secretary at the time of the record request confirmed that there were no audio or video recordings of WHRB meetings made by her or any other employees or WHRB members.  In cases such as this one, when an agency’s response to a record request states that no responsive records exist and that response is appealed, OIP normally looks at whether or not the agency’s search for a responsive record was reasonable.  Here, there was no search for records because the agency receiving the request knew that it is not WHRB’s practice to record its meetings.  OIP therefore declined to advise that HHSC or WHRB should engage in a search for responsive records knowing that a search for responsive records would be fruitless.  Relying on federal case law, OIP found that, in this case, because HHSC knew there would be no recordings found, no search for recordings was required.  OIP found the assertions by HHSC employees that no responsive record exists were produced in good faith, and that a search of WHRB records was not likely to uncover relevant documents.  Thus, HHSC’s response to Requesters request for an audio or video recording of the meeting was proper.

OIP emphasized that in most cases when an agency claims a record does not exist, it must first conduct a reasonable search.  The decision reached here is not intended to lessen or overrule the general requirement that agencies conduct a reasonable search for responsive records when receiving requests.  In rare cases, such as here, an agency’s staff may have actual knowledge that the type of record requested was never created.  Only in these rare cases is an agency absolved from having to conduct a search reasonably likely to produce the requested records.

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