Office of Information Practices

U Memo 15-8
March 5, 2015
Records Containing Predecisional
and Deliberative Material

Requester sought a decision whether the Department of Budget and Fiscal Services, City & County of Honolulu (BFS), properly denied a request for records concerning the designation of a remnant parcel as a surplus parcel for sale or disposition. BFS denied the record request to the extent that some of the records contained communications between various county departments and BFS that were predecisional and deliberative in nature and were thus protected from disclosure by the exception for “frustration of a legitimate government function” under section 92F-13(3), Hawaii Revised Statutes (HRS) (2012).

Following an in camera review, OIP agreed that the records fell within the frustration exception as they consisted of inter-agency memorandums seeking, providing, and summarizing comments by various county departments on whether the remnant parcel should be deemed a surplus parcel. HRS §92F-13(3). See OIP Op. Ltr. Nos. 90-8 and 04-15. The requested records also included bits of factual information, which would typically be subject to disclosure, but were “inextricably intertwined” with the deliberative content in the county departments’ communication to BFS. Thus, OIP concluded that the requested records and bits of factual information were protected under the deliberative process privilege and not subject to disclosure under the “frustration” exception provided by section 92F-13(3), HRS. OIP Op. Ltr. No. 91-24.

Finally, OIP concluded that BFS had not waived its deliberative process privilege when it provided factual information to a Council Member regarding the designation of the remnant parcel as a surplus parcel, without disclosing the deliberative and predecisional information provided by the various departments to BFS.