U Memo 19-8

Posted on Mar 11, 2019 in Informal Opinions - UIPA Opinions

U Memo 19-8
March 11, 2019
Emails Containing Attorney-Client Privileged Information

The Maui Planning Commission (PLAN-M) partially denied a request for records to or from PLAN-M related to a petition filed by another individual requesting a PLAN-M granted access to some of the responsive records

PLAN-M claimed the deliberative process privilege (DPP) applied to all the records being withheld, and that they thus fell under the UIPA’s exception to disclosure for information which, if disclosed, would frustrate a legitimate government function.  See HRS § 92F-13(3).  The DPP, which is followed in other jurisdictions, allows government agencies to withhold predecisional and deliberative internal records.  OIP had long recognized the DPP as a valid reason to withhold records under section 92F‑13(3), HRS.  Subsequent to the filing of this appeal, however, the Hawaii Supreme Court, in Peer News LLC v. City and County of Honolulu, 143 Haw. 472 (Dec. 21, 2018) (Peer News), invalidated the use of DPP under the UIPA to withhold certain internal records on the basis that “decision-making” was not a government function that fell within the frustration exception.  OIP informed CORP CNSL-M of the Peer News decision and allowed time for PLAN-M to amend its position based on the Court’s decision.  In response, CORP CNSL-M informed OIP and Requester that PLAN-M would make available those records for which it had previously asserted that only the DPP applied.

For those records that were also withheld under the attorney-client privilege (see HRS § 92F-13(3) and (4)), the only remaining issue was whether they were properly withheld under the attorney-client privilege.  Based on OIP’s in camera review, OIP found the communications between PLAN-M employees and PLAN-M’s attorneys at CORP CNSL-M, which PLAN-M asserted contain information covered by the attorney-client privilege, do indeed contain information covered by the attorney-client privilege and thus may be withheld from disclosure under section 92F‑13(3) and (4), HRS, except for a portion on one email which OIP found should be disclosed.  HRS § 92F-13(3) and (4).