COURT DEFERS TO OIP’S OPINIONS ON THE DELIBERATIVE PROCESS PRIVILEGE

Posted on Aug 13, 2015 in Featured, What's New

 

The state Office of Information Practices (OIP) applauds a recent Circuit Court ruling, which applied the “palpably erroneous” standard of review and deferred to OIP’s opinions recognizing that certain information need not be disclosed under the Uniform Information Practices Act (Modified), chapter 92F, Hawaii Revised Statutes (UIPA), due to an exception recognizing the “deliberative process privilege” (DPP).  First Circuit Court Judge Virginia Crandall rejected a motion for summary judgment filed by the Civil Beat Law Center on behalf of Peers News LLC, dba Civil Beat, against the City and County of Honolulu and the Department of Budget and Fiscal Services.

Civil Beat’s motion challenged several OIP opinions involving what is today’s HRS section 92F‑13(3) exception for “[r]ecords which, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function.”  As the Legislature left it to OIP and the courts to develop the common law interpreting the UIPA, OIP has issued a long line of opinions since 1989 that recognize and limit the DPP under the frustration exception when considering whether internal government communications must be disclosed.  While there has been ample opportunity to do so, the Legislature has not sought to eliminate the DPP and instead, in 2012, amended the law to consider OIP’s opinions as precedent unless found to be palpably erroneous.  Attached is a a more detailed article about the development of OIP’s DPP decisions.

OIP appreciates the trust that the Legislature and courts have shown in OIP’s opinions and will continue to fairly and reasonably interpret and administer Hawaii’s open records and open meetings laws for the public’s benefit.

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