F20-02Posted on Feb 4, 2020 in Formal Opinions
Opinion Ltr. No. F20-02
February 4, 2020
OIP determined that a confidentiality statute in the State Ethics Code (Ethics Code) required the State Ethics Commission (SEC) to withhold access to a redacted copy of an investigation of a complaint (Investigation) filed with the SEC by the record requester (Requester). The UIPA therefore allowed the SEC to withhold access to both government records under Part II and personal records under Part III of the UIPA.
Requester had filed a complaint with the SEC against two former State employees. Requester later made a request for a redacted copy of the Investigation. The SEC denied access under the UIPA’s Part II, citing section 92F-13(4), HRS, which states that government agencies are not required to disclose “[g]overnment records which, pursuant to a state . . . law . . . are protected from disclosure[.]”
In relevant part, the Ethics Code states that “[t]he commission shall investigate all charges on a confidential basis, having available all the powers herein provided, and proceedings at this stage shall not be public.” HRS § 84-31(b). Section 84-31(b), HRS, is a confidentiality statute intended to protect SEC investigations from disclosure prior to the commencement of contested case proceedings or as otherwise agreed to by the SEC and a party. OIP concluded that section 92F-13(4), HRS, which was invoked by the SEC, allowed it to withhold the Investigation records.
Because Requester lodged the complaint that is part of the Investigation, OIP also applied Part III of the UIPA, which requires agencies to disclose personal records to the individual to whom they pertain, unless an exemption in section 92F-22, HRS, applies. OIP found that Part III of the UIPA applies to at least a portion of the Investigation because Requester initiated the complaint. As such, the portion of the Investigation that is “about” Requester is the joint personal record of Requester and others identified therein.
Under the analysis set forth in OIP Opinion Letter Number F13-01, OIP found that the Investigation is partly Requester’s joint personal record subject to the UIPA’s Part III and partly a government record subject to Part II. However, OIP was not required to determine which specific portions of the Investigation are subject to Part II and Part III because the confidentiality statute at section 84-31(b), HRS, controls either way and requires the SEC to withhold access to the entire Investigation.
OIP concluded that under Part II of the UIPA, section 92F-13(4), HRS, allows the SEC to withhold any portion of the Investigation that is not Requester’s personal record from public disclosure. With respect to the portion that is Requester’s personal record, section 92F-22(5), HRS, states that agencies are not required to grant an individual access to personal records when they are “[r]equired to be withheld from the individual to whom it pertains by statute[.]” Consequently, OIP concluded that section 92F-22(5), HRS, allows the SEC to withhold any portion of the Investigation that is her personal record from Requester.
Finally, the fact that Requester explicitly sought a redacted copy of the Investigation is irrelevant because the confidentiality statute at section 84-31(b), HRS, applies to the entire Investigation, and as discussed above, protects both government records and personal records from disclosure.