Office of Information Practices

U Memo 14-10
May 30, 2014
Memorandum Header Information in
Correspondence with Legal Counsel

Requester sought a decision as to whether the Department of Land and Natural Resources (DLNR) properly denied access to the following records sought from DLNR’s Division of Boating and Ocean Recreation (DOBOR) under the UIPA:

1)     Memorandum header information (Memo Headers) in correspondence between DLNR and the Department of the Attorney General (AG) that would confirm AG’s legal conclusions on matters specified by Requester.  Requester sought access to the following information in the Memo Headers:  names of DLNR employees and AG deputy attorneys general who were the senders and recipients of the correspondence, dates, and the subject matters of the correspondence;

2)     DOBOR’s “worksheet for cruise ship passenger fees to disembark and embark from Kailua Pier, Island of Hawaii, and Lahaina Small Boat Harbor, Island of Maui” (Worksheet);

3)     DOBOR’s Capital Improvement Program (CIP) appropriation requests forwarded to the Governor for review and submission to the Legislature for its 2011 regular session (CIP Requests); and

4)     DOBOR’s summary financial statement for the fiscal year ending in June 2010 (Financial Summary).

OIP found that because Requester asked for disclosure of the Memo Headers only from memoranda that confirms the AG’s legal conclusions on specific matters, DLNR is not required to acknowledge or disclose the specifically requested Memo Headers because, if DLNR did maintain the subject memoranda, even just the acknowledgement or disclosure of the Memo Headers from the memoranda actually confirms the legal advice provided by AG therein.  Such legal advice constitutes confidential communications protected under both the attorney-client privilege and the deliberative process privilege.  Therefore, the Memo Headers are exempt under section 92F-13, HRS, as government records that are protected from disclosure “pursuant to state or federal law” and that “must be confidential in order for the government to avoid the frustration of a legitimate government function.”  HRS § 92F-13(3), (4) (2012).  The Worksheet and the CIP Requests also fall within the deliberative process privilege and are, therefore, exempt from disclosure under the UIPA’s “frustration” exception.  Finally, DLNR does not maintain the requested Financial Summary and is not required by the UIPA to compile and create it.  HRS § 92F-11(c) (2012).