The state Office of Information Practices (OIP) has posted on its Opinions page at oip.hawaii.gov two new significant opinions—one from the Hawaii Supreme Court and the other from the U.S. Supreme Court—which affect Hawaii’s Sunshine Law and the federal Freedom of Information Act (FOIA), respectively.
A unanimous Hawaii Supreme Court provided a detailed analysis of the Sunshine Law’s executive meeting provisions in Civil Beat Law Center v. City and County of Honolulu, SCAP-17-0000899 (June 27, 2019) (CBLC). Specifically, the case dealt with the personnel-privacy exception of HRS section 92-5(a)(2) that allows meetings to be closed to the public in order to discuss and deliberate “the hire, evaluation, dismissal, or discipline of an officer or employee or of charges brought against the officer or employee, where consideration of matters affecting privacy will be involved.” The Court’s opinion and OIP’s summary of its highlights are posted on the Opinions page at oip.hawaii.gov. OIP has also incorporated the opinion highlights with other training materials from the UIPA Guide to prepare a new “Quick Review: Executive Meetings Closed to the Public,” which is posted on the Training page at oip.hawaii.gov.
The U.S. Supreme Court also recently rendered a significant opinion in Food Marketing Institute v. Argus Leader Media, 588 U.S. ___ (2019) (Food Marketing), which rejected a long-established test to determine the meaning of “confidential” business information that is protected from public disclosure under FOIA. Exemption 4 specifically shields from mandatory disclosure “commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). To interpret the term “confidential,” the Court used its common dictionary definition meaning “private” or “secret” information that is customarily kept private, or at least closely held, by the person imparting it, or is information for which the recipient provides some assurance that it will remain secret. The Court found no basis to adopt the additional requirement to show “substantial competitive harm,” which was the test established in National Parks & Conservation Assn. v. Morton, 498 F.2d 765 (D.C. Cir. 1974). Although OIP has adopted the substantial competitive harm test to determine confidential business information under the UIPA, it is unclear what effect the Food Marketing decision will have, given Hawaii’s different statutory language, legislative history, and caselaw.
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