Office of Information Practices

U Memo 25-05
August 30, 2024
Investigative Records Related to
Upcoming Enforcement Proceeding

Requester sought a copy of the answer to his complaint and the Advisory Committee Member (ACM) report in an upcoming enforcement action before the Department of Commerce and Consumer Affairs, Regulated Industries Complaints Office (RICO).  RICO denied Requester’s request pursuant to sections 92F-13(3), 92F-22(4), and 92F-22(2), HRS, because (1) the responsive records directly related to an active RICO enforcement action involving the Requester-complainant, (2) premature disclosure would frustrate RICO’s law enforcement function in prosecuting alleged licensing law violations, and (3) because the ACM received an express promise of confidentiality as a condition of assisting RICO.  

Section 92F-22(4), HRS, allows agencies to withhold investigative materials related to an upcoming, ongoing, or pending civil or criminal action or administrative proceeding against the individual.  Requester appealed RICO’s response and asserted that section 92F-22(4), HRS, did not apply because he is the complainant and RICO’s proceeding is not against him.  OIP previously reviewed the legislative history of section 92F-22(4), HRS, and concluded that the “legislative policies underlying this exemption would be defeated were other persons mentioned in the fact-finding report provided with access to the same while the proceeding remains ‘upcoming, ongoing, or pending.’”  OIP Op. Ltr. 94-27 at 15.  Thus, government agencies like RICO may assert section 92F-22(4), HRS, when a complainant requests copies of investigative materials related to an upcoming, ongoing or pending enforcement action. 

Here, OIP concluded that premature disclosure would reasonably be expected to interfere with RICO’s upcoming civil enforcement proceeding against the painting company and frustrate RICO’s legitimate investigatory and law enforcement functions, so RICO properly withheld the records under sections 92F-22(4) and 92F-13(3), HRS, at the time of the request. 

Requester also asserted that RICO failed to disclose at least a redacted copy of the ACM report pursuant to an unpublished OIP memorandum opinion, U MEMO 19-5, in an unrelated appeal.  The facts and analysis in U MEMO 19-5 are distinguishable from this case as the agency in U MEMO 19-5 denied access to records of a closed investigation and asserted that disclosure would result in a clearly unwarranted invasion of personal privacy under section 92F-13(1), HRS.  By contrast, here, Requester sought records of an ongoing investigation and RICO invoked a different UIPA exemption and exception to withhold the responsive records under sections 92F-22(4) and 92F-13(3), HRS, which were not at issue in U MEMO 19-5.  In the controlling precedent, OIP Opinion Letter Number F2004, OIP concluded that the UIPA allowed agencies to withhold records part of an active, ongoing investigation as a rule, rather than being required to provide redacted versions.  Thus, the ongoing investigation exemption invoked by RICO in this appeal applies broadly to records related to an upcoming, ongoing, or pending proceeding rather than being limited to specific information within those records.  

Finally, OIP found that RICO promised the ACM confidentiality as a condition of providing RICO with the ACM’s expert opinion and analysis in this case, which is crucial to RICO’s investigatory function.  OIP concluded that the ACM in this case is a confidential source whose identity may be withheld under section 92F-22(2), HRS.