Openline March 1998

Posted on Mar 1, 1998 in Newsletter

What Records Are Restricted or Closed by Law?
Recent OIP Opinion
Legislative Update
OIP Staff Update

“You Can’t Always Get What You Want”:
What Records Are Restricted or Closed by Law?

The Uniform Information Practices Act (Modified) , Chapter 92F, Hawaii Revised Statues (“UIPA”), opens State and county government records to public scrutiny so as to protect the public’s interest. The law provides for five exceptions to this general rule of open records. The law does not require disclosure of the following categories of records.

Personal Privacy Exception
Records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy.

Under the law, privacy interests of the individual must be balanced against the public interest in disclosure. If the privacy interest of the individual outweighs the public interest in disclosure (the “balancing test”), then disclosure would be a clearly unwarranted invasion of privacy. In these instances, disclosure of the government record would not be required. In conducting this balancing test, the public interest to be considered is that which sheds light upon the workings of government.

Examples of information in which an individual has a significant privacy interest include: medical, psychiatric, or psychological history such as diagnosis, condition, treatment, or evaluation; eligibility for social services or welfare benefits or the determination of benefit levels; information describing an individual’s finances; and personal recommendations or evaluations.

Although an individual may have a significant privacy interest, the balancing test must be applied in these situations to determine whether to disclose the records.

Frustration Exception
Records that must be confidential in order for government to avoid the frustration of a legitimate government function.

Some examples of records that need not be disclosed, if the disclosure would frustrate a legitimate government function, include: records or information compiled for law enforcement purposes; trade secrets or confidential commercial and financial information; and information identifying or pertaining to real property under consideration for future public acquisition, unless otherwise available under state law.

In recent opinion letters, the OIP considered the frustration exception in determining access to subcontractor cost information (OIP Op. Ltr. No. 97-4), to an environmental geographic information system database (OIP Op. Ltr. No. 97-9), and to a Honolulu Ethics Commission advisory opinion (OIP Op. Ltr. No. 98-1; see page 2).

Three Other Exceptions
The personal privacy exception and the frustration exception are the most frequently asserted exceptions. There are three other exceptions to the general rule of open and accessible records:

1) Records pertaining to the prosecution or defense of any judicial or quasi-judicial action to which the state or any county is or may be a party, to the extent that such records would not be discoverable.

2) Records that are protected from disclosure by state or federal law or protected from disclosure by judicial rule.

3) Partial and draft working papers of legislative committees, the personal files of members of the Legislature, and unfiled committee reports.

These five exceptions are listed in Section 92F-13, Hawaii Revised Statutes. Section 92F-14 gives examples of information in which the individual has a significant privacy interest.

“But If You Try Sometime…”
To begin a record request, contact the agency holding the record. If troubles arise, then call the Office of Information Practices or take legal action.

The OIP recommends that requests be made in writing so there is a paper trail in case it is needed later. Written requests should include name (or alias), address, phone number, description of item requested, date, and any costs you are prepared to pay.

In a written request, describe any information you are not seeking if you have any reason to believe that this information is confidential. If the agency has to determine whether you want that information its response to your request will be delayed.

Recent OIP Opinion:
Honolulu Ethics Commission Advisory Opinions

The Honolulu Ethics Commission (“Commission”) is not required to provide a copy of an advisory opinion pursuant to a request for an advisory opinion about a specifically identified individual because disclosure would frustrate a legitimate government function of the Commission. Haw. Rev. Stat. Section 92F-13 (3) (1993).

Under the Revised Ordinances of the City and County of Honolulu and the Honolulu City Charter, the Commission is required both to issue advisory opinions and to segregate individually identifiable information from its advisory opinions, where possible, and to make those segregated opinions available to the public.

When an advisory opinion about a specifically named individual has been requested, no amount of segregation can protect the identity of the people involved in the opinion because the requester already knows who the advisory opinion is about. Such a public disclosure would frustrate the Commission’s legitimate functions by impairing its ability to solicit candid information in the future and its ability to investigate and render advisory opinions regarding claims of unethical behavior.

Therefore, when the Commission receives such a request, the OIP advises making copies of all its segregated advisory opinions available to the requester, who is then free to choose which advisory opinions he or she is interested in. [OIP Op. Ltr. No. 98-1, January 16, 1998]

Legislative Update

Last month’s Openline reported that there were 256 bills affecting information practices in the 1998 Regular Session of the Hawaii State Legislature. As of March 12, only 58 of those bills made it past the First Crossover deadline. The list below provides information on a few of the remaining bills affecting information practices that are being tracked by the Office of Information Practices. To request a full report of the bills being tracked by this office call 586-1400.

The Office of Information Practices
S.B. No. 2983 would require the State’s open meetings law to be administered by the Office of Information Practices (OIP). Would also move the OIP from the Executive to the Judicial branch of government.

Job Reference Liability
H.B. No. 3088 would immunize employers from civil liability for disclosing information about a current or former employee to a prospective employer of that employee.

Notification of Civil Action
H.B. No. 2774 and S.B. No. 2785 require that the OIP be notified in writing at the time a civil action relating to chapter 92F, Hawaii Revised Statutes, is filed.

Health Care Information
S.B. No. 3084 creates a new chapter in the Hawaii Revised Statutes entitled “Confidentiality of Health Care Information” that restricts the conditions under which confidential medical information may be disclosed.

Sex Offender Registration
S.B. No. 2786 would limit the type of information that is made public about a sex offender’s future residence and street name. This amendment would be consistent with the statute’s existing provision that only the street name and zip code of the sex offender’s current residence be made public.

OIP Staff Update

The Office of Information Practices bids aloha and mahalo to Sylvia Costa, Legal Clerk. Sylvia retired in November after a long career in public service, eight years of which were with the OIP. Before joining the OIP, Sylvia worked 12 sessions for the Legislature, back to when John Burns was Governor, for two constitutional conventions, and for the City & County of Honolulu’s Department of Data Systems.

Sylvia is already enjoying her retirement: cheering on the Rainbows in Las Vegas, visiting her daughter in Seattle, and cruising the oceans of the world. Happy retirement, Sylvia. We miss you in the office. See you at karaoke!