Posted on Nov 27, 2018 in Formal Opinions

Opinion Ltr. No. F19-02
November 27, 2018
Records of Meetings with Legislators

Requester asked the Department of Land and Natural Resources Division of Boating and Outdoor Recreation (DOBOR) for a copy of “notes for . . ., as well as any minutes from” a meeting with legislators related to DOBOR’s then-ongoing work on amendments to its rules.  DOBOR responded in an email that same day that the requested records were “internal working documents and we will not release at this time.”  Later, in response to the appeal, DOBOR asserted that it did not actually have any notes or minutes of the meeting, but also that disclosure would be a frustration of a legitimate government function.  Finally, DOBOR clarified that it took no notes or minutes at the meeting but did have an agenda and handouts prepared for the meeting, which were the “internal working documents” referred to in its denial.  

OIP first addressed whether the records DOBOR were responsive to the request.  Consistent with the UIPA’s requirement to interpret its provisions in favor of openness, OIP noted that it must interpret the scope of what records are responsive to a request reasonably broadly to avoid disadvantaging requesters based on their imperfect knowledge of what records an agency may have.  See HRS § 92F-2 (2012) (UIPA must be applied and construed to promote public interest in disclosure.)  It is the agency, not the requester, that has the most complete knowledge about the type and number of records the agency maintains relating to a given subject.  OIP concluded that based on the facts presented, the agenda and handouts were responsive to Requester’s request seeking notes for or minutes of the meeting.   

OIP further found that the deliberative process privilege claimed by DOBOR under the UIPA’s exception for records whose disclosure would frustrate a legitimate government function did not apply to the agenda or the meeting handouts, as they were shared outside the agency and thus were not a direct part of the agency’s internal decision-making process.  OIP Op. Ltrs. No. 92-26 at 5 and 04-15; see HRS § 92F-13(3) (2012) (agency may withhold records whose disclosure would frustrate a legitimate government function); see also HRS § 92F-19(a)(6) (2012) (agency may  share otherwise nonpublic records with a legislative body or committee).  DOBOR did not state any other basis for withholding the records or provide them for OIP’s in camera review as required by section 92F-42(5), HRS, and section 2-73-15(d), HAR.  Thus, OIP concluded that no UIPA exception applied to the agenda or the meeting handouts.

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