F22-03Posted on Jun 30, 2022 in Formal Opinions
Opinion Ltr. No. F22-03
June 30, 2022
Employee Departure Records
The Employees’ Retirement System (ERS) denied a request for records relating to its former chief investment officer’s departure. Due in part to the emergency suspension of UIPA deadlines during the COVID-19 emergency, ERS did not provide the disputed records for OIP’s review or its position statement until several years after the appeal was opened.
OIP concluded that the UIPA’s privacy exception allowed ERS to withhold a portion of the records including references to the former employee’s departure. HRS § 92F-13(1). However, ERS could not withhold information reflecting an action taken by a board at a meeting subject to the Sunshine Law, because the public interest in knowing an action taken by a Sunshine Law board outweighed the employee’s privacy interest in that action. OIP also concluded that an email previously published as part of a news article could not be withheld because the public disclosure interest outweighed the employee’s privacy interest. However, the public disclosure interest in information about specific conditions placed on the employee in connection with his departure and discussion of a possible exit agreement did not outweigh his privacy interest in such information, so it was properly withheld under the UIPA’s privacy exception.
In addition to what was properly withheld under the privacy exception, OIP concluded that the UIPA’s frustration exception allowed ERS to withhold a portion of an email that included attorney-client privileged advice to ERS from a deputy Attorney General. HRS § 92F-13(3). The remainder of that email and another email forwarding it did not include attorney-client privileged information, so could not be withheld based on the attorney-client privilege as recognized by the UIPA.
OIP also concluded that ERS conducted a reasonable search for responsive records. While ERS’s initial search was cursory and not reasonably calculated to uncover all relevant documents, ERS’s follow up search was more thorough and together the searches comprised a reasonable search under the UIPA. However, OIP concluded that ERS did not provide Requester a good faith estimate of fees in response to his request as required by the UIPA. An agency’s written response to a record request is required to include a “good faith estimate of all fees that will be charged to the requester under section 2-71-19[,]” HAR, which authorizes fees for an agency’s search, review, and segregation of records. Based on the UIPA’s legislative history and the administrative rules implementing the UIPA, the clear purpose of the “good faith” estimate of fees is to provide a requester with sound information about the anticipated agency time required and fees to be paid to process the request as submitted, so the requester can make an informed choice whether to pursue, modify, or even abandon it. OIP concluded that it did not need to find a deliberate intent to inflate its estimate by an agency to conclude that the estimate was not made in good faith; rather, a failure to make even a cursory effort to accurately estimate the volume of responsive records an agency maintains is sufficient by itself to support the conclusion that the agency failed to provide the requester a good faith estimate as required by rule, and thus violated the UIPA.