Posted on May 18, 2023 in Formal Opinions

Opinion Lt. No. F23-05
May 18, 2023
Records Relating to Request for Proposals

A requester appealed the Department of Land and Natural Resources (DLNR)’s denial of his request for records relating to a request for proposals (RFP) regarding the Ala Wai Small Boat Harbor.  He sought the names of selection committee members, the names of proposal submitters, a list of meetings between proposal submitters and a specified employee, and correspondence between proposal submitters and the same employee.

Preliminarily, DLNR argued that the requester’s abandonment of a previous request absolved DLNR of the need to respond to the request at issue.  OIP concluded that although a requester’s abandonment of a request relieves an agency of further responsibility to respond to the specific request that was abandoned, it does not relieve the agency of further responsibility to respond to any future requests from the same requester, even if those requests overlap with the abandoned one.  A requester is entitled to abandon one request and instead make a new request, which may be the same, may be narrower, or as in this case, may be broader.

DLNR also argued that some of the requested lists were not maintained by it as lists and would require creating a compilation or summary of information that was not readily retrievable.  OIP found that a list of selection committee members and of proposal submitter names would be readily retrievable by DLNR in the form requested, and OIP concluded that unless an exception to disclosure applied (as discussed separately) DLNR must compile and disclose the requested information.  However, OIP found that the requested list of meetings with related information would not be readily retrievable by DLNR, and thus concluded that DLNR had no duty under the UIPA to create such a list in response to Requester’s request.

OIP concluded that the names of the agency employees serving as selection committee members could not be withheld under the UIPA’s frustration exception and must be disclosed, and because a list of selection committee members is reasonably retrievable, DLNR was required to create and disclose such a list.  HRS § 92F-13(3).  However, OIP also concluded that DLNR was authorized to withhold the identities of proposal submitters to avoid the frustration of a legitimate government function, so DLNR was not required to create a compilation or summary of that information.  OIP further concluded that DLNR was authorized under the frustration exception to withhold information in correspondence that would identify a proposal submitter (including the name and contact information for the submitter’s attorney) and other information from the proposal (including references to other companies).  Finally, OIP found that the information was reasonably segregable and concluded that DLNR must provide Requester with a redacted version of the correspondence.

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