FOUR NEW INFORMAL OPINIONS

Posted on Dec 22, 2014 in Featured, What's New

Since the start of FY 2015 in July, the state Office of Information Practices (OIP) has issued two new formal opinions and four informal opinions.  While the two formal opinions were previously described in the November 26, 2014 What’s New article, the four informal opinions are summarized below.  Summaries of all informal opinions and the full texts of formal opinions can also be found on the Opinions page at oip.hawaii.gov.

In S Memo 15-1, OIP concluded that the Small Business Regulatory Review Board (SBRRB) was subject to Act 68, 2014 Hawaii Session Laws, when reviewing other agencies’ proposed rules.  Act 68  amended the Sunshine Law to allow boards to describe proposed rules as agenda items with statements that the rules can be reviewed in person and online in accordance with the notice provisions for rulemaking found in sections 91-3(a)(1)(A) and 91-2.6, HRS.  With respect to online notice, section 91-2.6 requires state agencies to provide its proposed rules on the Office of the Lt. Governor’s (OLG) website.  If the draft rules are not available for viewing on the OLG website, then SBRRB must follow the Sunshine Law’s normal requirement to list in its agenda all of the items to be considered.  To ensure that SBRRB can meet Act 68’s online notice requirement without having to develop a list of all items to be considered, OIP recommended that the agencies be advised to make their rules available on the OLG website at the time that they forward draft rules for SBRRB’s review.

In U Memo 15-1, OIP found that the Department of Public Safety (PSD) properly denied, under Part III of the UIPA, Requester’s request for personal records consisting of copies of a written examination with Requester’s answers, interview questions, and the interviewers’ notes of Requester’s answers during the interview.  The UIPA’s Part III exemption for “testing or examination material or scoring keys . . . the disclosure of which would compromise the objectivity, fairness, or effectiveness of the testing or examination process” allows PSD to withhold these personal records from Requester.  HRS § 92F-22(3) (2012).  OIP also found that PSD is not required to disclose the requested records as government records under Part II of the UIPA based on the exception to disclosure for records whose disclosure would frustrate a legitimate government function.  HRS § 92F-13(3) (2012).  Disclosure of questions and answers would compromise the “validity, fairness or objectivity of the examination.”  OIP Op. Ltr. No. 94-8 at 6.  Additionally, PSD need not disclose the interview panelists’ notes because they fall within the “deliberative process privilege.”  OIP Op. Ltr. No. 91-24 at 7.

In U Memo 15-2, Environment Hawaii asked whether the Office of the Governor is required under the UIPA to disclose lists of nominees (Lists) for two vacant positions provided to the Governor by the Nominating Committee for the Commission on Water Resource Management (CWRM).  Specifically, the requester asked whether the Lists are public after the Governor has made his appointments and after confirmation by the Senate.  OIP concluded that the Governor’s Office may withhold the Lists under section 92F‑13(1), HRS, the UIPA’s exception to disclosure for records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy.  An unsuccessful applicant to a government position has a significant privacy interest in the applicant’s application information, including his or her name, as set forth in section 92F-14(b)(4), HRS.  This significant privacy interest must be balanced against the public interest in disclosure. HRS § 92F-14(a) (2012).  Here, the significant privacy interests of applicants to the CWRM outweigh the public interest in the Lists, and the Governor’s Office is not required to disclose the Lists.

The Governor’s Office may also withhold the Lists under section 92F-13(3) HRS, the UIPA’s exception to disclosure for records which, if disclosed, would cause the frustration of a legitimate government function.  The legitimate government function here is in obtaining a qualified pool of applicants, which could be frustrated by disclosure of the Lists because the number of applicants would likely decline if individuals knew the fact that they applied would be made public.

OIP noted, however, that the Governor’s Office should disclose the names of individuals who were appointed, as well as names of unsuccessful applicants who have publicly disclosed the fact that they applied.

In U-Memo 15-3, OIP reconsidered its decision in U-Memo 14-11 to clarify that in most            circumstances, the UIPA requires disclosure, upon request, of a sitting judge’s year of birth in order to allow the public to determine whether the judge exceeds the age 70 retirement age mandated by the Hawaii State Constitution.  If a judge remains on the bench in his or her final year of eligibility, then disclosure of the month and year of birth would be necessary; if in the final month of eligibility, then a sitting judge’s exact date of birth must also be disclosed.

Finally, please note that OIP has posted a corrected version of formal OIP Op. Ltr. No. F15-01 on its website, which was missing the first two lines of a quotation at the top of page 11.

Summaries of informal opinion and the full text of formal opinions can be found on the Opinions page at oip.hawaii.gov. For the latest open government news, check for archived copies of What’s New articles that are posted here, or e-mailed upon request. To be added to OIP’s e-mail list, please e-mail oip@hawaii.gov.  Also, if you would like to receive What’s New articles or attachments in a Word format, please contact OIP at (808) 586-1400 or oip@hawaii.gov.