Office of Information Practices

The Office of Information Practices recently issued one formal opinion and seven informal opinions under the Sunshine Law, part I of chapter 92, Hawaii Revised Statutes (HRS), and the Uniform Information Practices Act (Modified), chapter 92F, HRS (UIPA).  The summaries of the opinions can be found on the Opinions page at oip.hawaii.gov and by clicking the links below.

In OIP Op. Ltr. No. 26-01, OIP found that the Disability and Communication Access Board (DCAB) violated the Sunshine Law by conducting board business without a quorum and by treating the gathering as an “informational meeting,” which is not allowed.  DCAB also failed to inform the public its meeting was cancelled due to lack of quorum for the permitted interaction at 92-2.5(d), HRS, to apply and instead improperly treated the gathering as an informational meeting.  Further, DCAB members deliberated by expressing voting preferences and offering suggestions, which exceeded the limited actions allowed when a meeting is canceled under 92-2.5(d), HRS.  Finally, OIP concluded that the Sunshine Law does not allow a canceled meeting to be uncanceled and resumed without proper notice, so even if DCAB had canceled its meeting, continuing board business that day would still violate the notice requirements under section 92-7, HRS.

S MEMO 26-01 OIP found that the Shoreline and Special Management Area Working Group (Working Group) created by the Maui Department of Planning was not created by constitution, statute, rule, or executive order, and therefore did not satisfy all the elements of the Sunshine Law’s definition of board and was not a board subject to the Sunshine Law.  OIP also found that the Maui Planning Commission (Commission) did not delegate any of its powers or authority to the Working Group.  OIP concluded that the Working Group is not a board governed by the Sunshine Law either in its own right or through the delegation of the Commission’s powers, and so the Working Group did not violate the Sunshine Law by holding meetings without following the Sunshine Law’s Provisions.

S MEMO 26-02 Requester asked for an investigation into whether the Board of Land and Natural Resources (BLNR) violated the Sunshine Law by adding her oral request for a contested case hearing to the agenda during its meeting and voting to deny her request for a hearing.  OIP found that BLNR’s actions during its meeting were part of an adjudicatory function exempted from the Sunshine Law by section 92-6, Hawaii Revised Statutes.  OIP concluded that BLNR did not violate the Sunshine Law by considering Requester’s oral request for a contested case hearing and denying her request during the meeting.

U MEMO 26-03 Requester made two requests to the Department of Transportation, Airports Division (DOT) for copies of records concerning a two-year contract and an emergency Wiki Wiki contract.  Requester appealed DOT’s partial denial of both requests.   OIP concluded that DOT properly withheld the majority of the records for which it claimed attorney-client privilege as recognized under section 92F-13(3), HRS, and other UIPA exceptions.  OIP concluded that disclosure of a full federal employee identification number (FEIN) would not frustrate one of DOT’s legitimate functions by causing it to violate Rule 5.2, Federal Rules of Civil Procedure , or by impairing the competitive position of that business or the government’s ability to get FEINs in the future, so OIP concluded that DOT could not redact any part of the FEINs based on the UIPA’s frustration exception.  OIP concluded that DOT must likewise disclose full unemployment insurance policy numbers.  OIP further found that DOT had not shown how disclosure of permit decal numbers for vehicles authorized to drive on runways would be likely to allow circumvention airport security measures and thus fall under the UIPA’s frustration exception, and concluded that the decal numbers must be disclosed.  OIP also concluded that two home addresses were made public by section 92F-12(a)(13), HRS, as licensee business addresses, and must therefore be disclosed.  Finally, OIP concluded that DOT made a reasonable search for records responsive to the requests, and met its UIPA obligations in that respect.

U MEMO 26-04 Requester appealed the City and County of Honolulu Police Department’s (HPD) response to his request for a hospital report which stated HPD did not maintain the record.  When an agency’s response to a record request states that no responsive record exists and that response is appealed, OIP assesses whether the agency’s search for a record was reasonable.  HPD explained that after identifying the HPD reports that were relevant to the request, HPD determined that, based on the date of the incident, any responsive records would be in HPD’s Microfilm System.  HPD searched the Microfilm System and located the reports in question, and after reviewing the approximately ninety pages of reports determined that HPD did not maintain a copy of the requested record.  OIP found that the search HPD described was reasonably calculated to uncover all relevant documents and could reasonably be expected to produce any records HPD maintained that were responsive to the request.  Therefore, OIP concluded that HPD’s response that it did not maintain records responsive to the request was proper and HPD had no further obligations under the UIPA regarding the request.

U MEMO 26-05  OIP found that the Maui Emergency Management Agency (EMA-M) performed a reasonable search of all mailboxes within EMA-M’s administrative control, and that EMA-M’s search would reasonably be expected to find documents responsive to a request for “smart weather” and related keywords.  Therefore, OIP concluded that EMA-M’s response that it does not maintain records responsive to the request other than the seven emails found in EMA-M’s search was proper under the UIPA.  Additionally, to the extent that the record request implied that Requester was seeking records maintained by the Department of the Corporation Counsel, OIP concluded that EMA-M was not required to perform a search for records maintained by another agency.  OIP also found that the seven responsive emails were between EMA-M staff and EMA-M’s legal representative were made for the purpose of facilitating the rendition of professional legal services.  Therefore, OIP concluded that the seven emails may be withheld as confidential attorney-client communications.

U MEMO 26-06 Requester sought a copy of a store receipt that was held by a government employee in his personal capacity.  OIP found that the requested record was not a government record maintained by the agency, and concluded that the agency’s response that it does not maintain records responsive to the record request was proper.

U MEMO 26-07 In 2021 and 2022, Requester submitted three separate requests for the ballot images, cast vote records, and audit logs from the 2020 General Election to the Office of Elections (OE) after the OE’s lease with the voting equipment vendor had expired.  OIP found that the OE did not save in-person ballot images; and could not access the electronically stored election information (mail-in ballot images, cast vote records, and audit logs) under an expired contract without the vendor’s proprietary software.  Because the OE had no contractual right to the software after the lease expired, it did not maintain the records.