DELIBERATIVE PROCESS PRIVILEGE REJECTED BY THE HAWAII SUPREME COURT

Posted on Dec 21, 2018 in Featured, What's New

The Hawaii Supreme Court, in a 3-2 decision, today overruled a line of opinions dating back to 1989 by the state Office of Information Practices (OIP), which had recognized the “deliberative process privilege” (DPP) under the statutory exception allowing government agencies to not disclose government records that, by their nature, must be confidential in order to avoid the frustration of a legitimate government function.  The majority opinion (by Justice Pollack, with McKenna and Wilson) and the dissenting opinion (by Justice Nakayama, with Chief Justice Recktenwald) have been posted on OIP’s opinions page at oip.hawaii.gov.  OIP was not a party in this case and will be posting a summary of it at a later date.

In light of this decision, OIP will no longer recognize the deliberative process privilege under the frustration exception to disclosure.  Agencies that have used this argument in cases pending before OIP will be contacted and allowed to submit supplemental arguments in their cases.

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