Office of Information Practices

U Memo 13-11
June 28, 2013
Recommended Decision Protected from Disclosure
by Deliberative Process Privilege

Requester sought an opinion under Part II of the UIPA as to whether the Board of Trustees (Board) of the Employees’ Retirement System (ERS) properly withheld a Hearing Officer’s Recommended Decision regarding a Petition filed by Requester’s clients against the ERS Administrator contesting the calculation of their retirement benefits (Petition).  Requester wanted access to the Officer’s Recommended Decision before the ERS Board accepted it as its proposed decision.

OIP determined that at the time that the Recommended Decision was submitted to the ERS Board by the Hearing Officer, it was protected from public disclosure under the UIPA’s exception for “[g]overnment records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function.”   HRS § 92F-13(3) (2012).  Because the Recommended Decision was predecisional and deliberative, it fell within the deliberative process privilege.  Therefore, the ERS Board is not required to disclose the Officer’s Recommended Decision unless the ERS Board has accepted it as its own proposed decision.