Posted on Oct 11, 2018 in Formal Opinions

Opinion Ltr. No. F19-01
October 11, 2018
Minimum Decision Record

[This Opinion overrules OIP Opinion Letter Number F17-04.]

Requesters previously sought a decision as to whether the Hawaii Paroling Authority (HPA) properly denied their request for their Minimum Decision Record under the Uniform Information Practices Act (Modified), chapter 92F, Hawaii Revised Statutes (HRS) (the UIPA).  Those requests were consolidated and resulted in the issuance of OIP Opinion Letter Number F17-04 (Opinion F17-04).  The Department of the Attorney General, on behalf of HPA, made a timely request for reconsideration of Opinion F17-04, which was granted on February 22, 2018.  Based on new evidence provided for OIP’s in camera review, OIP overruled Opinion F17-04 and concluded that HPA properly denied Requesters’ requests for their Minimum Decision Record under Parts II and III of the UIPA.

Under Part III of the UIPA, OIP found that the records sought by Requesters are personal records “about” each corresponding Requester but are not required to be disclosed because they fall within the exemption to disclosure set out in section 92F-22(1)(B), HRS.  Specifically, OIP concluded that section 92F˗22(1)(B), HRS, was broad enough to permit HPA to withhold each respective Minimum Decision Record in its entirety from Requesters as it is a report prepared during the process of criminal law enforcement.

OIP has stated that when a personal record is withheld from the requester due to a Part III exemption, an additional analysis must be conducted under Part II to determine if the personal record must still be disclosed as a government record.  OIP Op. Ltr. No. 05-14 at 6-7; accord OIP Op. Ltr. No. 03-11 at 4, n.6 and OIP Op. Ltr. No. 05-16 at 4.

Under Part II of the UIPA, section 92F-13(3), HRS, provides that agencies may withhold government records to avoid the frustration of a legitimate government function.  The deliberative process privilege form of the frustration exception specifically protects government records that are part of the decision-making process.  The policy purposes behind the deliberative process privilege are:  (1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies or decisions before they are finally adopted; and (3) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency’s action.  OIP Op. Ltr. No. 90-03 at 11.  This privilege applies only when the record is both predecisional and deliberative, and it may be lost when a final decision expressly adopts or incorporates the information by reference.  Id. at 12.

OIP has previously recognized draft documents as falling within the deliberative process privilege.  Specifically, in OIP Opinion Letter Numbers 90-08 at 7 and 91-16 at 4, OIP found that “[d]raft documents, by their very nature, are typically predecisional and deliberative.  They ‘reflect only the tentative view of their authors; views that might be altered or rejected upon further deliberation either by their authors or by superiors.’” Exxon Corp. v. Dep’t. of Energy, 585 F. Supp. 690, 698 (D.D.C. 1983) (citation omitted).  In addition, OIP has recognized that this protection for an agency’s editorial judgment reflected in successive drafts applies not only to statements of opinion, but also to factual information in a draft document, because

even if a draft document’s contents are factual, the disclosure of the draft would frustrate agency decision-making during the drafting and editing of the document because ‘the disclosure of editorial judgments — for example, decisions to insert or delete material or to change a draft’s focus or emphasis — would stifle the creative thinking and candid exchange of ideas.’

OIP Op. Ltr. No. 91-16 at 6, quoting Dudman Communications Corp. v. Dep’t. of Air Force, 815 F.2d 1565, 1569 (D.C. Cir. 1987).

Although OIP has concluded that the UIPA does not require the disclosure of a draft of correspondence since disclosure would frustrate agency decision-making in the editing process, OIP has indicated that a mere “draft” stamp or title, by itself, does not automatically make a document a draft covered by the deliberative process privilege.  Rather, “the agency must be able to show ‘what deliberative process is involved, and the role played by the documents in issue in the course of that process.’” OIP Op. Ltr. No. 91-16 at 7 (citation omitted).

Upon OIP’s in camera review of the requested records, OIP found that each Requester’s Minimum Decision Record is both predecisional and deliberative as each is the record of the parole board members’ immediate impressions and opinions after the hearing and their collective deliberations of the appropriate criteria and level of punishment for the inmate.  Each record contains handwritten notes, recommendations, and calculations made before the parole board rendered its final decision regarding the inmate’s imprisonment term.

In addition, OIP found that based on what HPA has shown as to the deliberative process involved and the role played by the Minimum Decision Record in that process, as well as OIP’s review of both documents, the Minimum Decision Record effectually serves as a draft version of the final Notice and Order of Fixing Minimum Term(s) of Imprisonment (Notice and Order).  Using its editorial judgment, HPA’s board may insert or delete material or change the focus or emphasis when the final Notice and Order is prepared.  Thus, OIP concluded that disclosure of the Minimum Decision Record would frustrate HPA’s decision-making function, hinder its editorial judgment, and stifle the creative thinking and candid exchange of ideas when preparing the final Notice and Order.

Finally, because OIP found that the Minimum Decision Records were not expressly incorporated or adopted by reference in its respective Notice and Order, OIP concluded that each Requester’s respective Minimum Decision Record in its entirety may be withheld from him under the deliberative process privilege form of the frustration exception set forth in section 92F-13(3), HRS, of Part II of the UIPA.

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