Office of Information Practices

U Memo 19-4
November 23, 2018
No Duty to Search for Records That Do Not Exist

Requester sought a decision as to whether the Department of Public Safety (PSD) properly responded to his request for his Prescriptive Plan Update and Exception Case Form by stating that it did not have the requested documents.

Agencies are required to make any accessible personal record available to the individual to whom it pertains unless an exemption to disclosure applies.  HRS § 92F-21 (2012).  When an agency asserts that no responsive records exist, the issue on appeal is whether the agency’s search for a responsive record was reasonable.  OIP Op. Ltr. No. 97-08.  However, in rare instances, when OIP finds that an agency has actual knowledge that the requested record was never created, OIP will conclude that it was reasonable for the agency to respond based on its prior knowledge, and the agency is absolved from having to conduct an actual search for requested records it knows do not exist.  OIP Op. Ltr. No. F16-03.

In this case, the requested records were created.  However, OIP declined to opine that PSD must conduct a search for them because PSD made credible and good faith statements that it does not have Requester’s Prescriptive Plan Update and Exception Case Form.  PSD explained that the records were immediately destroyed after PSD realized that they were “inadvertently created” based on an error.  OIP found that because PSD had actual knowledge that the records were destroyed prior to PSD’s receipt of Requester’s record request, a search for responsive records was not necessary as it would have been fruitless.  OIP further found that PSD did not destroy the requested records in order to avoid its disclosure obligations.  Consequently, OIP concluded that PSD’s response to Requester’s request was proper.