Office of Information Practices

U Memo 25-09
Nov. 14, 2024
Confidential Attorney-Client
Communications and Work Product

A record requester (Requester) sought copies of documents from the Department of Land and Natural Resources (DLNR) related to himself or his boat and the Ala Wai Small Boat Harbor.  DLNR denied Requester’s record request, stating that attorney-client privilege applied to the responsive documents.  Requester appealed DLNR’s denial to OIP.

Under section 92F-22(5), Hawaii Revised Statutes (HRS), an agency is not required to disclose records in response to a personal record request if those records are required to be withheld by statute or authorized to be withheld by “constitutional or statutory privilege.”  Rule 503 of the Hawaii Rules of Evidence (HRE), chapter 626, HRS, provides that a client has the privilege to refuse to disclose and prevent others from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services.  OIP found that many of the records DLNR withheld from Requester were communications subject to the attorney-client privilege, and that the attorney-client privilege still protects these communications, regardless of whether the Attorney General or a deputy Attorney General has since left that role.  OIP therefore concluded that the emails that were protected under the attorney-client privilege in Rule 503, HRE, and withholding such records was therefore proper under section 92F-22(5), HRS.

Rule 26(b)(4) of the Hawaii Rules of Civil Procedure (HRCP) states that records prepared “in anticipation of litigation or for trial” and “by or for another party or by of for that party’s representative” are only discoverable upon a showing that the party seeking discovery has substantial need of the records and is unable to obtain equivalent records by other means.  OIP previously found that this work product doctrine gives a party a “privilege” in the manner recognized by the Legislature in section 92F-22(5), HRS.  OIP found that some of the responsive records were created in anticipation of litigation or in response to the court case filed by Requester against DLNR and other agencies, and therefore concluded DLNR may withhold such records.

However, upon in camera review of the responsive records, OIP found that some of the responsive records were neither confidential attorney-client communications nor work product prepared in anticipation of litigation or for trial, but also include other individuals’ personal contact information, which OIP found was not part of Requester’s personal record.  OIP concluded that DLNR may redact individuals’ personal contact information under the UIPA’s privacy exception, section 92F-13(1), HRS, but must otherwise disclose these records to Requester.