Posted on Jul 12, 2021 in Featured, What's New

As its final opinion of FY 21, the state Office of Information Practices has posted on its Opinions page formal opinion number F21-02 regarding the Employees’ Retirement System (ERS). The requester in this case had sought measures of performance of ERS’s investment in private equity funds that had been disclosed in previous years, including total distribution data. After considering whether to modify its analytical approach to follow a recent U.S. Supreme Court case interpreting the federal Freedom of Information Act (FOIA), OIP determined that the analysis used in OIP’s previous opinions on the subject was more consistent with the UIPA’s frustration exception to public disclosure.

Applying that approach to the information at issue, OIP then concluded that ERS properly withheld total distribution data from public disclosure under the UIPA on the basis that it was confidential commercial and financial information whose disclosure would frustrate a legitimate government function. ERS established that the report prepared for it by a paid consultant and similar reports were financial information with commercial value. ERS further established that disclosure of the total distribution data would cause substantial competitive harm to the consultant and would impair ERS’s own ability to obtain such information in the future.

OIP went on to address whether ERS’s past disclosure of total distribution data for prior years acted as a waiver or showed that no real harm would result from disclosure. Based on ERS’s evidence showing that its prior disclosures of the same type of information for previous years had resulted in ERS’s partial or complete exclusion from some investment opportunities, OIP further concluded that disclosure would in fact frustrate a legitimate government function, so ERS properly withheld the information under section 92F-13(3), HRS.

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