Office of Information Practices

U Memo 17-3
January 20, 2017
No Duty to Search for Rules that Do Not Exist

Requester sought a decision as to whether the Hawaii Criminal Justice Data Center (HCJDC) properly responded to his request for three different sets of administrative rules (Rules) by claiming the records did not exist.

Generally, agencies must make government records available for inspection and copying during regular business hours under section 92F-11(b), Hawaii Revised Statutes (HRS).  When an agency’s response to a record request states that no responsive records exist, the issue on appeal normally is whether the agency’s search for a responsive record was reasonable.  However, in rare instances, when OIP finds that an agency has actual knowledge that the requested record was never created, OIP will conclude that the agency is absolved from having to conduct a search reasonably likely to produce the requested records.  OIP Op. Ltr. No. F16-03.

Here, OIP found that HCJDC made three separate, credible, and good faith statements that the requested record was never created.  Taking into account the consistency of these three separate statements along with the consideration that these statements were provided by the lead individual charged with the overall administration of HCJDC, whose position reasonably requires that she have specialized knowledge of all HCJDC rules, OIP concluded that a search for responsive records was not necessary because it would have been fruitless, and HCJDC’s responses to Requester’s request for Rules were proper under the UIPA.

OIP also emphasized that in most cases when an agency claims a record does not exist, it must first conduct a reasonable search.  The decision reached here is not intended to lessen or overrule the general requirement that agencies conduct a reasonable search for responsive records when receiving requests.  In rare cases, such as here, an agency’s personnel may have actual knowledge that the record requested was never created.  Only in these rare cases is an agency absolved from having to conduct a search reasonably likely to produce the requested records.