U Memo 19-5Posted on Dec 27, 2018 in Informal Opinions - UIPA Opinions
U Memo 19-5
December 27, 2018
Complaint of Unlicensed Practice
Requester sought records of a closed complaint to the Department of Commerce and Consumer Affairs (DCCA), Regulated Industries Complaints Office (RICO), filed by a third party, which had alleged the subject of the complaint (“Respondent”) had engaged in the unlicensed practice of dentistry in Hawaii by performing independent medical examinations (IMEs) and doing medical record reviews. Requester did not seek copies of IMEs conducted on third parties or medical or dental information related to the IMEs, but rather “the complaint, the legal proceedings and negotiation, and the conclusion of the case.” RICO denied the request on the basis that the complaint file was “[i]nformation compiled to determine an individual’s fitness to obtain or retain a license” and as such, fell within the UIPA’s exception for information whose disclosure would be a clearly unwarranted invasion of personal privacy. See HRS § 92F-13(1) and -14(b)(7).
OIP concluded that section 92F-14(b)(7), HRS, which recognizes a heightened privacy interest in information about a person’s fitness to be granted a license, did not apply directly to the file at issue here, and should not be applied by analogy because Respondent did not have an equivalent privacy interest in allegations that his actions constituted the practice of dentistry in Hawaii. HRS § 92F-14(b)(7) (Supp. 2017). It was therefore not appropriate to withhold the closed complaint file as a whole on the assumption that the file as a whole carried a significant privacy interest. Instead, the records should have been examined on an individual basis to determine whether, based on the information contained in them, they fell under one of the UIPA’s exceptions to disclosure.
OIP found that a witness who filed a statement as a member of the advisory committee was a confidential source, and thus the witness’ identity could be withheld under the UIPA’s exception for records whose disclosure would frustrate a legitimate government function. E.g. OIP Op. Ltr. No. 05-16; see also HRS § 92F-13(3) (2012). RICO thus could withhold any information that would result in the likelihood of the witness’s actual identification, which included not just the witness’s name but also other identifying details such as title, contact information, and letterhead.
Correspondence reflecting settlement negotiations, including attached drafts, was properly withheld under the UIPA’s frustration exception. See HRS § 92F-13(3). However, after redaction of the witness and patient information, the remaining correspondence and other records in the file (such as case summary printouts and closing memorandum) did not fall within the UIPA’s privacy or frustration exceptions, and thus were required to be disclosed. See HRS § 92F-13(1) and (3).