The state Office of Information Practices (OIP) has posted online its latest formal and informal opinions discussing both the UIPA and Sunshine Law.
In OIP Opinion Letter No. F20-01, Requester sought a transcript and audio record of a Maui County Council (Council) executive session discussing a resolution to appoint staff to the Maui Office of Council Services (OCS). After OCS denied the request in its entirety, Requester appealed to OIP. OCS subsequently disclosed most of the transcript, redacting primarily portions of the Council’s (1) discussions about the possible hire of Requester and other employees, including their past performance, and (2) consultations with its attorney regarding OCS management issues. See HRS §§ 92-9(b), 92F-13(4), and 92F-22(5) (2012) (allowing an agency to withhold records protected by another law in response to either a general government record or a personal record request; and allowing a board to withhold executive session minutes to the extent disclosure would frustrate the purpose of the executive session); Civil Beat Law Center for the Public Interest v. City & County of Honolulu, 144 Haw. 466, 445 P.3d 47 (Haw. 2019) (discussing the personnel-privacy and attorney consultation executive session purposes).
Although this was an appeal from OCS’s denial of a UIPA record request and not an appeal alleging Sunshine Law violations by the Council, it was necessary to examine whether the Sunshine Law allows a board to hold an executive session closed to the public for a limited list of purposes. HRS §§ 92-4, -5 (2012). The minutes of such an executive session may be withheld so long as necessary to prevent frustration of the executive session, but no longer. HRS § 92-(9)(b); see also HRS §§ 92F-13(4), -22(5) (both allowing an agency to withhold information protected by statute in response to UIPA requests).
OIP found that most of the discussion in the redacted portions of the transcript fell within one of two permitted executive session purposes: one allowing a closed meeting to consider the “hire, evaluation, dismissal, or discipline” of a government employee where matters affecting individual privacy are concerned (personnel-privacy purpose) and the other allowing a closed meeting for a board to consult with its attorney regarding “the board’s powers, duties, privileges, immunities, and liabilities” (attorney consultation purpose). HRS § 92-5(a)(2) and (4). However, a small portion of the redacted discussion would not frustrate the purpose(s) of the executive session if disclosed, and OIP concluded that OCS must therefore disclose to Requester certain portions concerning Requester’s employment that did not qualify for the personnel-privacy purpose, including the name and approximate salary of another employee identified in the discussion. Moreover, OIP determined that OCS must disclose a redacted version of the requested audio recording, redacting the same portion of the discussion as for the written transcript.
OIP also posted a summary of U Memo 20-4, which partially reconsidered its decision in U Memo 20-1 that followed the precedent set by OIP Opinion Letter Number F19-05 rejecting the Department of Taxation’s (DOTAX) argument that was essentially based on the deliberative process privilege. OIP had granted partial reconsideration of U Memo 20-4 based on other compelling circumstances showing that confidential taxpayer information would be inadvertently disclosed under U Memo 20-1. Upon reconsideration, U Memo 20-4 affirmed OIP’s decision in U Memo 20-1 requiring disclosure of the requested records relating to tax revenue estimates, except for a particular spreadsheet that could be withheld from disclosure because it was protected by a confidentiality statute.
The full text of OIP’s formal opinions and summaries of its memo opinions are posted on the Opinions page at oip.hawaii.gov. Also, for OIP’s July 2019 Quick Review about executive meetings under the Sunshine Law, go to the Training page at oip.hawaii.gov.
For the latest open government news, please check for What’s New articles that are archived on OIP’s website or emailed to you upon request. To be added to OIP’s email list, please email [email protected]. Also, if you would like to receive What’s New articles or attachments in a different format, please contact OIP at (808) 586-1400 or [email protected].