U Memo 20-6Posted on Feb 13, 2020 in Informal Opinions - UIPA Opinions
U Memo 20-6
February 13, 2020
Solid Waste Complaint Documents
OIP determined that the Department of Health (DOH) properly redacted the names of complainants from records relating to its investigation of an environmental complaint to avoid the frustration of its legitimate government function of enforcement of environmental laws, as the disclosure of complainant’s identities could have a chilling effect on DOH’s ability to receive complaints of alleged illegal activity. OIP advised the DOH, however, to make its future redactions apparent to the reader by blacking out or striking information to be redacted. OIP further concluded that the DOH properly withheld two emails on the basis that they contained attorney-client privileged communications.
More specifically, the DOH Solid and Hazardous Waste Branch’s mission includes enforcement of environmental laws and regulations. A member of the public (Requester) made a request to DOH for “all records pertaining to NOYO Docket #155-SHW-SWS 006 concerning James Nutter, Island Recycling From March 2015 Jan 2017.” DOH sent a Notice to Requester (NTR) which indicated that it would withhold access to the portions of the requested records containing “Attorney-client privileged Doc” and “complainant id.” DOH cited “92F” as justification for its partial denial, and Requester appealed.
OIP’s first found that DOH’s NTR did not include specific legal authority for its denial, and OIP that DOH’s initial response to the record request was not in compliance with chapter 2-71, HAR.
In response to this appeal DOH stated that it withheld the names of complainants from the copy of the complaint it provided Requester on the basis that disclosure would have a “chilling effect on the program as no one will want to report illegal activity” and invoked section 92F‑13(3), HRS, which allows an agency to withhold records when disclosure would frustrate a legitimate government function. Based existing precedent, OIP found that disclosure of complainants’ identities for complaints alleging violations of environmental law could have a chilling effect on DOH’s ability to receive such complaints, thus frustrating its ability to conduct investigations of alleged illegal activity. OIP concluded that DOH properly invoked section 92F-13(3), HRS, for redaction of complainants’ identifying information.
DOH also withheld two email strings which it asserted contain attorney-client privileged communications between it and its attorneys regarding DOH’s defense in a pending litigation. DOH claimed it could withhold attorney-client privileged communications under section 92F-13(2), HRS, which allows an agency to withhold access to government records “pertaining to the prosecution or defense of any judicial or quasi-judicial action to which the State or any county is or may be a party, to the extent that such records would not be discoverable.” See also OIP Op. Ltr. No. F14‑01 at 6 (citing OIP Op. Ltr. No. 91‑23 at 8-9).
The Department of the Attorney General provides legal counsel to DOH, and the two email strings reviewed in camera were found to be communications between DOH employees and several deputies Attorney General about a litigation. OIP therefore concluded the emails are covered by the attorney-client privilege, and that DOH properly withheld them under section 92F-13(2), HRS.