U Memo 19-7Posted on Mar 5, 2019 in Informal Opinions - UIPA Opinions
U Memo 19-7
March 5, 2019
Request for Proposal Information Designated as Confidential
The Department of Taxation (TAX) issued a request for proposals for a tax modernization project. After the proposals were opened and an award was made, the winning proposer made a record request for Revenue Solutions Inc.’s (RSI) proposal (Proposal) and related documents. RSI claimed that most of the Proposal contained confidential commercial and financial information (confidential business information, or CBI), and the Department of the Attorney General (AG), on behalf of its client TAX, prepared a version of the Proposal with fewer proposed redactions for disclosure. OIP was thereafter asked to review the unredacted Proposal and the AG’s proposed redactions in camera.
AG had proposed redacting all of what it deemed “résumé information,” but OIP found that names and résumé information of RSI employees within the Proposal must be public as OIP has previously found that the UIPA’s privacy and frustration exceptions at section 92F-13(1) and (3), HRS, do not protect this type of information in proposals for State contracts. Direct telephone numbers and email addresses of RSI employees and names and contact information of personal references, however, may be withheld in order to avoid the frustration of a legitimate government function under section 92F-13(3), HRS.
Regarding the CBI claims, prior OIP opinions have established that, in order for agencies to withhold CBI in records maintained by the agency, the agency itself must claim that disclosure would cause the frustration of a legitimate government function. In such cases, the frustration would typically be the inability to obtain accurate information in the future, or that disclosure would create unfair advantages in a competitive market. Accordingly, OIP found that all portions of the Proposal that do not have proposed redactions by the AG, and the entire Best and Final Offer, are public, as TAX is not invoking any exception to disclosure of those portions.
For the portions of the Proposal for which the AG proposed redactions, OIP found TAX again did not claim frustration of any government function if the information is disclosed. There was also no argument as to how disclosure of the information proposed for redaction would cause substantial competitive harm to RSI. The redacted information was mostly narrative, and some of it is in the public domain, so had been improperly proposed for redaction. It did not contain the type of detailed proprietary information that may be withheld under section 92F-13(3), HRS, even assuming TAX had made a frustration argument. Finally, OIP advised that detailed financial information may be redacted under the frustration exception in accordance with previous OIP formal opinions, but OIP was not provided with any detailed financial information for in camera review. Consequently, OIP concluded that the Proposal must be disclosed without redaction, except for the contact information of references and employees, and any detailed financial information which OIP was not given for in camera review.