Posted on Mar 7, 2024 in Formal Opinions

Opinion Letter No. F24-05
March 7, 2024
Emails Containing Attorney-Client Privileged Information

Requester made a request to the Hawaii County Department of Finance (FIN-H) in 2019 for a copy of security camera video footage.   FIN-H responded that the tape was no longer available.  Requester appealed, and OIP issued U MEMO 21-01. 

Requester thereafter made a record request to FIN-H in 2020 for a copy of “all County of Hawaii email communications, with all parties, regarding my records request dated July 8, 2019 for video footage.”  FIN-H provided approximately 15 responsive emails, some with attachments and emails threads.  FIN-H denied access to thirteen emails (Emails) that it contended consisted of attorney-client privileged communications.  Requester appealed the partial denial of access to the Emails. 

The Emails included portions that were government records under the UIPA’s Part II, and portions that were personal records under the UIPA’s Part III.  OIP’s precedents make clear that subsections 92F13(2), (3), and (4), HRS, allow agencies to withhold government records subject to the UIPA’s Part II that contain attorney-client privileged communications.  This opinion also makes clear that personal records subject to the UIPA’s Part III that contain attorney-client privileged communications may be withheld under the exemption to disclosure of personal records at section 92F-22(5), HRS.  This exemption allows agencies to withhold records required to be withheld from the individual to whom it pertains by statute or judicial decision, or authorized to be withheld by constitutional or statutory privilege.  The attorney-client privilege is a statute and a statutory privilege.  OIP found that the only portions of the responsive emails that do not contain attorney-client privileged communications are the tops of four email threads containing non-substantive header information and simply express gratitude.  With the exception of this non-privileged material, OIP concluded that FIN-H was authorized to withhold the Emails, subject to Requester’s payment of applicable fees and costs for processing heavily redacted emails. 

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