Office of Information Practices

The Hawai’i Supreme Court issued a new opinion, which essentially held that (1) the Circuit Court did not abuse its discretion in reviewing in camera an allegedly confidential investigative report sent by the Attorney General’s Office to the Legislature, and (2) the report could not be withheld under the exception in the Uniform Information Practices Act, Chapter 92F, HRS (UIPA), for confidential communications protected by the lawyer-client privilege, when no lawyer-client relationship was proven.  Honolulu Civil Beat Inc. v. Department of the Attorney General (March 11, 2020, SCAP-17-0000480).  This Court opinion, along with the following formal and informal opinions recently issued by the Office of Information Practices (OIP), have been posted online on the Opinions page at oip.hawaii.gov.

In OIP Opinion Letter No. F20-02, OIP concluded that the Hawaii State Ethics Commission (SEC) properly denied a request for a redacted copy of an investigation file because the State Ethics Code, Chapter 84, HRS, includes a confidentiality provision that protects SEC investigation files from disclosure.  Thus, the UIPA’s sections 92F-13(4) and 92F-22(5), HRS, allowed the SEC to withhold the government or personal records that were subject to this confidentiality statute.

Based on OIP Opinion Letter No. F20-02, OIP similarly held in U Memo 20-7 that the SEC properly withheld records that pertain to the requester’s complaint to the SEC.

In U Memo 20-4, OIP partially reconsidered its decision in U Memo 20-1.  While affirming its substantive holding that the Department of Taxation (TAX) improperly denied access to the worksheets assumptions, estimates, and calculations for tax revenue estimates on which TAX’s testimony to the Legislature had been based, OIP concluded in U Memo 20-4 that TAX could withhold a small portion of a spreadsheet containing confidential taxpayer information protected under section 235-116, HRS.

In U Memo 20-5, OIP concluded that a change in federal law required reconsideration of its conclusions in OIP Opinion Letter Number 03-19.  OIP determined that the names and other information of individuals sent to Kalaupapa must now be disclosed under the federal law and is authorized by the Health Insurance Portability and Accountability Act of 1996, and thus, is also required to be disclosed under the UIPA.

In U Memo 20-6, 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 law, 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.

In S Memo 20-2, OIP concluded that the Kauai County Council’s agenda for a meeting provided sufficient public notice that it would be considering a salary resolution and that the Sunshine Law does not require an agenda to state what action, if any, a board may take on an item.

In S Memo 20-3, OIP determined that the Sunshine Law does not apply to “adjudicatory functions exercised by a board and governed by sections 91-8 and 91-9[, HRS.]”  HRS § 92-6(a) (2012).  Because a Special Management Area permit hearing was an exercise of the Hana Advisory Committee’s (HAC) adjudicatory function and was governed by section 91-9, HRS, OIP concluded that it was exempt from the Sunshine Law’s requirements.  Thus, even if the HAC had failed to give any kind of notice of the hearing, it could not have violated the law.

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