Posted on Jul 9, 2020 in Featured, What's New

Despite the unprecedented challenges of COVID-19 and the temporary suspension of its powers, the state Office of Information Practices (OIP) continued to alternate telework with in-office time after reopening its physical office in June and finished FY 2020 with eight new opinions, bringing the total number of opinions written for the year to 24.  The full text of the new formal opinions and the summaries of the informal memorandum opinions are posted on OIP’s opinions page at oip.hawaii.gov.

In formal OIP Opinion Letter No. F20-04, a requester appealed the Kauai Police Department’s (KPD) denial of access to two police reports and assertion that it did not maintain a third.  With respect to the first report, which was for an incident that was not currently under investigation at the time of the request and that did not involve the requester, OIP concluded that the UIPA did not allow KPD to fully withhold the police report to avoid an unwarranted invasion of the personal privacy of an individual named in the report, and that KPD must disclose the report after redaction of information that would result in the likelihood of actual identification of the victim, which includes the victim’s name, address, cell phone number, date of birth, and photographs.

With respect to the second report, which was for an incident that did involve the requester, OIP found that KPD had provided enough information to establish that the report was part of a pending investigation at the time of the request, and that the UIPA allowed KPD to withhold it on that basis.  Because the investigation has since closed, though, KPD would be required to disclose the report in response to a newly made request after redaction of information that would result in the likelihood of actual identification of individuals named therein.

With respect to the report KPD asserted it did not have, OIP found that KPD had responded properly to the request by performing a reasonable search based on the information provided to it at the time of its search.  See OIP Op. Ltr. No. 97-08 at 5.  Even though KPD’s search turned up a report that was not the one Requester was seeking, KPD had no notice that the report it had identified was the wrong one until after this appeal was filed, and thus KPD had no obligation to do a new search in the absence of any clarification to the request.

In OIP Opinion Letter No. F20-05, OIP found that the Makakilo/Kapolei/Honokai Hale Neighborhood Board No. 34 (Board) violated the Sunshine Law when Board members exchanged email communication about Board business, despite having been advised by OIP in S MEMO 12-12 and on three subsequent occasions by the Neighborhood Commission Office that its members should not be discussing Board business by using emails.  More troubling, OIP found that one of the Board members specifically warned in S MEMO 12-12 had emailed blind copies to at least two other Board members in the current case.  Consequently, OIP found this member’s disregard of prior warnings and his continued use of emails in what appears to be a deliberate circumvention of the Sunshine Law to be sufficiently concerning and referred him to the Commission’s Executive Secretary for the filing of a complaint under section 2-18-101, Rules and Procedures of the Neighborhood Commission (2017) to investigate his actions and consider whether they warrant his removal from the Board.  OIP also warned the Board that it may refer to the appropriate authorities for prosecution any future instances where the Board uses email to discuss Board business in violation of the Sunshine Law.

In informal S MEMO 20-5, OIP concluded that the state Department of Transportation did not violate the Sunshine Law by failing to provide public notice of a meeting of the State of Hawaii Helicopter Noise Roundtable because the Roundtable had not been established by the constitution, statute, rule, executive order or other legal authority, and thus, did not meet the definition of a “board” subject to the Sunshine Law.

In S MEMO 20-6, OIP consolidated two appeals by the same requester and arising out of the same meeting:  one appeal alleging Sunshine Law violations, and the other asking for a decision on a denial of records under the UIPA.  In the first appeal, OIP determined that the Board of Land and Natural Resources (BLNR) did not violate the Sunshine Law by failing to list an executive session, except as generic language at the end of its agenda, where the item discussed was listed as an agenda item, but not as an executive session item because a closed session was not anticipated in advance.  OIP concluded, however, that BLNR did violate section 92-4, HRS, by failing to announce prior to its vote the purpose of going into executive session.  In the UIPA appeal, OIP decided that the Department of Land and Natural Resources (DLNR) properly withheld access to a copy of the executive session minutes containing attorney-client privileged material, pursuant to sections 92-9(b) and 92F-13(3), HRS.

In U MEMO  20-10, OIP concluded that Honolulu’s Department of Planning and Permitting (DPP-HON) was not authorized to charge SRS fees for a personal record request.  Charges for copying and other costs governed by laws outside the UIPA do not violate the UIPA, and the copy fees assessed by DPP-HON appear to be lawful under section 92-21, HRS.  However, DPP-HON should not have charged a search fee set forth in a City ordinance for processing a record request, because fees for an agency’s time spent searching and otherwise processing a UIPA request are only allowed as set forth in OIP’s administrative rules in chapter 2-71, HAR.

In U MEMO 20-11, OIP concluded that the Honolulu Authority for Rapid Transportation (HART) was not entitled to fully withhold access to a copy of a claim, which was referenced in a HART Board of Directors meeting agenda, to protect the privacy of individuals named therein or protect the identity of a confidential source, because their names and other identifying information were reasonably segregable from the record as a whole.  Therefore, OIP concluded HART was required to disclose the claim after redaction of the names and other identifying information for the claimant and two HART employees.

In U MEMO 20-12, OIP determined that the Kanuikapono Public Charter School (KPCS) violated the Part III of the UIPA by failing to provide to requester a copy of the 2018-19 school year records it acknowledges it maintains.  KPCS may charge copy costs but may not charge any other fees to process personal record requests under Part III.  Because KPCS did not show that it made a reasonable search for responsive records pertaining to the 2010-11 school year, OIP further determined that KPCS had failed to meet its burden under the UIPA to justify its partial denial of access to records on the basis it did not maintain them.  HRS § 92F-15(c) (2012).

In U MEMO 20-13, OIP found that most of the investigative file sought by Requester was his personal record, because the subject matter was the investigation of his complaint and he was identified throughout.  OIP thus concluded that Part III of the UIPA allowed the state Department of Transportation (DOT) to withhold only those portions of the investigative file that identified or could allow actual identification of interviewees who were promised confidentiality, pursuant to section 92F-22, HRS.  OIP further found that limited portions of the investigative file were not Requester’s personal records as they were not “about” Requester, and, therefore, were subject to the public disclosure requirements and exceptions to disclosure set forth in Part II of the UIPA.  OIP determined that DOT improperly denied access to those government records, as none of the Part II exceptions to disclosure under section 92F-13, HRS, were applicable.

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