Office of Information Practices

U Memo 18-2
December 28, 2017
Agency Claim That Requested
Records Do Not Exist

Requester made a written request to the County of Kauai Department of Planning (PLAN-K) for a copy of a “Notice of Violation” issued to two individuals.  PLAN-K’s Notice to Requester stated that the request could not be granted because PLAN-K does not maintain the requested record.  Requester appealed PLAN-K’s response to OIP.

Part II of the Uniform Information Practices Act (Modified), chapter 92F, HRS (UIPA), which governs requests for government records made to Hawaii state and county agencies, applies.  Agencies have affirmative disclosure responsibilities under the UIPA, which include making government records available for inspection and copying during regular business hours under section 92F-11(b), HRS.  So long as an agency maintains the information in the form requested by a requester, the agency must generally provide a copy of that record in the format requested unless doing so might significantly risk damage, loss, or destruction of the original record.

Normally, when an agency’s response to a record request states that no responsive records exist and that response is appealed, OIP assesses whether the agency’s search for a responsive record was reasonable.  OIP Op. Ltr. No. 97-8 at 4.  A reasonable search is one “reasonably calculated to uncover all relevant documents[,]” and an agency must make “a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.”  Id. at 5 (citations omitted).

In response to this appeal, CORP CNSL-K asserted that Requester’s request was assigned to the PLAN-K Enforcement Section’s Planning Program Manager (Program Manager).  The Program Manager has been employed by PLAN-K for approximately 25 years.  In response to the request, he inquired with the four PLAN-K Enforcement Section inspectors who would have knowledge as to where a notice of violation would be maintained.  All four inspectors confirmed that there is not an enforcement file under the names provided by Requester or under the tax map key number for their property.  Because a Notice of Violation, if it existed, would be maintained in an enforcement file in PLAN-K’s Enforcement Section, OIP found that PLAN-K’s search for responsive records was reasonable.

OIP also noted that, 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.  Based on his experience, institutional knowledge, and personal knowledge, the Program Manager asserted that a Notice of Violation was never issued to the two named individuals.  OIP found these statements to be credible and made in good faith, and that a further search for responsive records would be fruitless.  OIP concluded that PLAN-K’s response was proper under the UIPA.