U Memo 18-9Posted on Jun 28, 2018 in Informal Opinions - UIPA Opinions
U Memo 18-9
June 28, 2018
Records Listed on a Log of Redactions/Withheld Documents
Requester, an inmate, sought a decision whether the Department of Public Safety (PSD) properly denied under Parts II and III of the UIPA his request for records listed on a Log of Redactions/Withheld Documents (Log) produced in response to a subpoena duces tecum (Subpoena).
The Requester first sought to obtain records through the State court system. Requester served PSD with the Subpoena to produce Requester’s “complete and entire” PSD file. The Department of the Attorney General (AG), on behalf of PSD, moved to quash the Subpoena and submitted to the Court the Log listing all withheld records responsive to the Subpoena (Log). The Court issued two Orders that partially denied access to Requester’s PSD File. Because Requester could not get the records he was seeking through discovery in his criminal case, he instead sought to obtain those records through the UIPA. Following PSD’s denial of access to his record request under the UIPA, Requester appealed to OIP.
On PSD’s behalf, the AG argued that Requester was not entitled to the records based on sections 92F-13(4) and 92F‑22(5), HRS, on the theory that the records were made confidential by the Court’s two Orders regarding the Subpoena. OIP found that neither Order constituted a judicial decision that expressly required Requester’s personal records to be withheld.
The AG further argued that the Court did not need to issue a protective order because the first order had granted PSD’s motion to quash the Subpoena, and cited OIP Opinion Letter Number 02-03, where the defendant in a Family Court matter had served a subpoena on the Honolulu Police Department (HPD) for certain police reports and complaints. However, OIP found that the records in OIP Opinion Letter Number 02-03 had been affirmatively sealed by a Family Court order, which did not occur in the present case.
Accordingly, neither section 92F-13(4) nor section 92F-22(5), HRS, applied to the facts of this case and the records cannot be withheld based on a judicial decision. Thus, Requester may potentially access records under the UIPA.
Records “about” the requester are considered personal records, which are governed by Part III of the UIPA and subject to the exemptions found in section 92F-22, HRS. In this case, several exemptions apply to permit the withholding of certain personal records sought by Requester. The emails and correspondence generated by PSD staff for internal use and the Internal Memo/Incident Reports regarding investigations by PSD staff were reports that directly related to the facilities’ concerns regarding the security, custody and rehabilitation of Requester and other inmates, and thus, could be withheld from disclosure under section 92F‑22(1)(B), HRS. Certain Correspondence Control Sheet/Routing Slips (Control Sheets) may also qualify as reports that can be withheld from disclosure under section 92F‑22(1)(B), HRS, depending upon the content of handwritten notes thereon.
The emails and correspondence between PSD and its attorneys were also personal records of Requester, but contain attorney-client privileged communications between PSD and its attorney. Thus, PSD may withhold them from disclosure under section 92F-22(5), HRS.
Although it is a personal record, PSD need not disclose a letter about Requester written by a third party, which would reveal the identity of a confidential source under an implied promise of confidentiality. HRS §92F-22(2) (2012).
Other personal records were not subject to any Part III exemptions and must be disclosed to Requester.
The remaining requested records were considered “government” records subject to Part II of the UIPA, and the exceptions to disclosure found in section 92F-13, HRS. A State Employee Injury Medical Report and an envelope containing the home address of the writer may be withheld from disclosure under the privacy exception in section 92F-13(1), HRS.