U Memo 18-13Posted on Jun 29, 2018 in Informal Opinions - UIPA Opinions
U Memo 18-13
June 29, 2018
Adequacy of Search for Employment Records
Requester sought a decision as to whether the Director of the Office of Equal Opportunity (OEO) at the University of Hawaii at Hilo (UHH) properly responded to his request for a successful applicant’s records under Part II of the UIPA by claiming that some of the records were either not maintained or were not readily retrievable. Requester sought access to a search committee’s written hiring recommendation for a successful applicant as well as employment cards and membership cards related to that applicant.
Normally, when an agency’s response to a record request states that no responsive records exist and that response is appealed, OIP assesses whether the agency’s search for a responsive record was reasonable. OIP Op. Ltr. No. 97-8 at 4. A reasonable search is one “reasonably calculated to uncover all relevant documents” and an agency must make “a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Id. at 5 (citations omitted).
In response to this appeal, OEO stated that there is no requirement that a written hiring recommendation be made. When such a document was not found in the personnel file of the selected candidate in this case, OEO asserted that the chairperson of the search committee was asked if there had been a written hiring recommendation. The chairperson responded that a list of strengths and weaknesses of the three finalists had been provided to the Chancellor for decision-making. In an email message to the Requester prior to his record request, the chairperson of the search committee explained to Requester that “[a]s per the instructions of the Chancellor, the search committee did NOT recommend a person for the position, nor were the three APT applicants ranked in any order.”
Because no written hiring recommendation apparently existed or could be found in the successful applicant’s official personnel file, OEO justified the nondisclosure by correctly claiming on its Notice to Requester [NTR] that the record was “Not in official personnel file,” but inexplicably cited section 92F-12, HRS, which requires disclosure of certain records. An agency is not required to cite statutory authority for not disclosing a record that it does not maintain, although OEO could have cited to section 92F-3, HRS, when advising Requester that it did not “maintain” the requested record. Despite OEO’s incorrect statutory justification for its nondisclosure, OIP concludes that it made a good faith effort to locate any written hiring recommendation made by the search committee and found that no such record existed, so OEO’s nondisclosure of a written hiring recommendation did not violate the UIPA.
After conducting a search of its files, OEO sent Requester its NTR, which claimed that OEO did not maintain any copies of employment cards and membership cards and correctly cited section 92F-3, HRS. In response to this appeal, OEO also asserted that “[i]t is not the policy of UH Hilo to maintain such a record. Review of [the successful applicant’s] personnel file verifies that such a ‘card’ is not a part of her personnel record, which is also in accord with our practice to not maintain such documentation.”
OIP finds that OEO conducted an adequate search of the file and that there is a credible reason as to why the records did not exist. OIP concluded that the employment cards and membership information cards were not maintained by OEO and that its nondisclosure under section 92F-3, HRS, was proper.