Office of Information Practices

U Memo 20-9
May 8, 2020
Government Records that Do Not Exist

The Department of the Corporation Counsel, County of Maui (CORP CNSL-M) denied access to two different records requested by the same Requester.  Requester appealed to OIP, and OIP consolidated the Requester’s two appeals because the appeals were from the same Requester about the same agency.  HAR § 2-73-15 (2012).  OIP concluded that CORP CNSL-M properly denied access to the requested government records in both appeals because CORP CNSL-M does not maintain them and is not required by the UIPA to create government records.

In his first appeal, Requester requested CORP CNSL-M to disclose a procurement report about a law firm’s potential conflicts of interests (Procurement Report).  CORP CNSL-M informed Requester that it did not create and does not maintain a Procurement Report responsive to Requester’s specific record request.  OIP opined that the UIPA does not require CORP CNSL-M to search for the Procurement Report when CORP CNSL-M credibly asserted that it never created this Procurement Report.  OIP opined that, under the UIPA, CORP CNSL-M properly responded to Requester’s request for the Procurement Report by informing him that it did not maintain the Procurement Report, regardless of Requester’s belief that CORP CNSL-M should have created it.

In his second appeal, Requester sought from CORP CNSL-M the first date of when CORP CNSL-M supposedly produced and disclosed a permit file (First Production Date).  CORP CNSL-M informed Requester that it did not maintain a record responsive to his request for the First Production Date.  As OIP found, the permit file was the same government record for which Requester filed a Circuit Court complaint for production of records (State Lawsuit), which the court ultimately dismissed because the record did not exist.  Like the Circuit Court, OIP finds credible CORP CNSL-M’s assertion that the same file considered in both the State Lawsuit and in the present appeal before OIP cannot be produced because it does not exist.  Consequently, OIP opined that CORP CNSL-M properly responded to the request for the First Production Date by informing Requester that it does not maintain this record.