Openline April 1999

Posted on Apr 1, 1999 in Newsletter

A Quick Guide to the New OIP Rules
Recent OIP Opinion: Disclosure of Police Records
OIP Staff Update

Processing Record Requests
A Quick Guide to the New OIP Rules

The Office of Information Practices (“OIP”) has adopted administrative rules entitled “Agency Procedures and Fees for Processing Government Record Requests.”

These rules, which took effect on February 26, 1999, are set forth in Chapter 71 of Title 2 of the Hawaii Administrative Rules. The OIP was required to adopt these rules by the Uniform Information Practices Act (Modified) (“UIPA”).

Here is a quick guide to help government agencies and the public understand the new rules.

Which agencies must comply with these rules?
ALL executive and legislative agencies of the State and of all counties in the State. These rules also apply to the administrative functions of the Judiciary.

When do these rules apply?
An agency must comply with these rules whenever an agency receives a request for access to a government record, either to view or obtain a copy of the record.

What are the requirements for submitting a request for access to a government record?
To make the request clear and easier to respond to, a requester should submit a “formal request” which:

  • is written, or in some other form;
  • provides information enabling the agency to contact the requester;
  • requests either to inspect or to copy a particular government record; 
    describes that government record; and
  • if the requester wishes to request a waiver of search, review, and segregation fees, includes facts supporting the waiver request.

What are the time limits for an agency’s response to the record request?
Public Records: The agency has 10 business days to disclose public government records that will be disclosed in their entirety. 
Partially Public Records: For those records, parts of which will be segregated, the agency has 10 business days to provide notice. The agency then must disclose public parts of the record within 5 days of providing notice. Prepayment may be required before disclosure. 
Extenuating Circumstances: When an agency’s response time is affected by extenuating circumstances, the agency may first provide written acknowledgment, thereafter provide a notice within 20 days after receiving the request, and then disclose public parts of the record within 5 days of providing notice.

What must an agency’s notice state?
Notice of Access: If an agency will be disclosing all or part of the record requested, the notice must tell the requester how the record will be made available–for example: (1) whether it will be made available for inspection or copying and where, 
(2) the estimated amount of fees to process the record request, and (3) any other instructions. 
Notice of Denial: If an agency will be denying access to all or part of the record requested, the notice must inform the requester whether all or only a portion of the record will not be disclosed. The notice must also state the specific legal authorities for the agency’s denial. 
Notice of Agency Unable to Disclose: If an agency is unable to disclose a record, the notice must state the reason. 
Model notice forms can be downloaded from the OIP’s web site as they become available.

What must an agency do when the record requested is partially confidential?
Before disclosing the public parts of the record, the agency must segregate the confidential parts. The agency’s notice must inform the requester about those parts that are not disclosed, as well as how the public parts will be made available.

What kind of fees do the rules allow agencies to charge?
In order to process a request for access to a government record, an agency may, but need not, charge the requester the following fees, in addition to any other lawful fees:

$2.50 per fifteen minutes, or fraction thereof, for searching for the record; and 
$5.00 per fifteen minutes, or fraction thereof, for reviewing and segregating the record. 
The agency may not charge the first $30 of the above fees to the requester. In addition, a fee waiver in the public interest is also available. The criteria for this fee waiver are set forth in section 2-71-32, Hawaii Administrative Rules, and are stated in the model request form to be made available on the OIP’s web site.

For more information about the rules or the UIPA, go online to the OIP’s web site at: www.state.hi.us/oip.

Recent OIP Opinion:
Disclosure of Police Reports

Police reports for a closed criminal investigation, which resulted in a deferred acceptance of nolo contendere plea, must be made available for public inspection and copying.

A local newspaper had requested disclosure of the police reports, after deletion of the information identifying the victim and witnesses.

After reviewing the Kauai Police Department’s objections to disclosure, the OIP determined that the State law governing the deferred acceptance of nolo contendere plea, the State expungement statute, and the State law regarding criminal history record information, did not protect the police reports from disclosure under section 92F-13(4), Hawaii Revised Statutes.

In addition, because the police reports did not involve a Family Court proceeding, the statute that makes records of Family Court proceedings confidential did not apply.

Because the defendant had already been prosecuted, was summoned and appeared in open court, and was identified by public court records, the OIP determined that he maintained little or no privacy interest in disclosure of his identity, and information regarding his identity was not protected from disclosure.

However, the OIP found that information regarding the defendant’s social security number, home address, and telephone number could be redacted prior to disclosure of the police reports.
[OIP Op. Ltr. No. 99-2, April 5, 1999]

OIP Staff Update

The Office of Information Practices bids aloha (and “we have the telephone numbers for your new offices!”) to Staff Attorney Randall Port and to Coleen Yoshina, Secretary to the Director.

Randy, who served as staff attorney from 1996 to the end of 1998, is now Senior Legislative Assistant to Senator Jonathan Chun in the State Senate. We miss Randy’s wit and wisdom in the office, as well as his endless tips for improving the quality of life through the magic of duct tape.

Coleen has transferred to the Department of Accounting and General Services, to serve as secretary to the deputy director. We miss Coleen and her many skills, from coordinating the office’s assignments and activities, to taming unruly paperwork and wild software, to performing great feats of baking. Coleen and Randy, we wish you well in your new positions!

The staff welcomes Rita Newcom, who joins the OIP from the Administrative Division of the Department of the Attorney General. Rita, the office’s new legal assistant, received paralegal training at Kapi’olani Community College. Her interests include hula and going to the Ice Palace with her son, Ridge.