OIP POSTS NEW FORMAL OPINION

Posted on Oct 15, 2018 in Featured, What's New

The Office of Information Practices (OIP) has attached and posted on its website its latest formal decision, Opinion Letter Number F19-01, which overrules Opinion Letter Number F17˗04.  Based on new evidence provided for OIP’s in camera review, Op. Ltr. F19-01 concluded that the Hawaii Paroling Authority (HPA) properly withheld in its entirety Minimum Decision Records sought by three inmate Requesters under the Uniform Information Practices Act (UIPA), as is briefly summarized below.

Although the records were personal records “about” each Requester, HPA was permitted to withhold them in their entirety under the UIPA Part III exemption set out in section 92F‑22(1)(B), HRS, as reports prepared during the process of criminal law enforcement.  When a personal record is withheld due to a Part III exemption, however, it is still necessary to consider whether it must be disclosed to any requester as a government record under Part II.

OIP has previously recognized that draft documents may fall within the deliberative process privilege form of the frustration exception in Part II, which allows agencies to withhold government records to avoid the frustration of a legitimate government function.  Moreover, OIP has recognized that draft documents fall within the deliberative process privilege and that an agency’s editorial judgment reflected in successive drafts applies not only to statements of opinion, but also to factual information in a draft document, because

even if a draft document’s contents are factual, the disclosure of the draft would frustrate agency decision-making during the drafting and editing of the document because ‘the disclosure of editorial judgments — for example, decisions to insert or delete material or to change a draft’s focus or emphasis — would stifle the creative thinking and candid exchange of ideas.’

OIP Op. Ltr. No. 91-16 at 6, quoting Dudman Communications Corp. v. Dep’t. of Air Force, 815 F.2d 1565, 1569 (D.C. Cir. 1987).

While merely labeling a record as a “Draft” would not necessarily invoke this exception, HPA demonstrated upon reconsideration that the Minimum Decision Records in Op. Ltr. F19‑01 were both predecisional and deliberative and that they served as draft versions of the final Notice and Order that fixed the minimum imprisonment terms.  Using its editorial judgment, HPA’s parole board may insert or delete material or change the focus or emphasis when the final Notice and Order is prepared.  Thus, OIP concluded that disclosure of the Minimum Decision Record would frustrate HPA’s decision-making function, hinder its editorial judgment, and stifle the creative thinking and candid exchange of ideas when preparing the final Notice and Order.

Finally, because the Minimum Decision Records were not expressly incorporated or adopted by reference in Requesters’ respective Notice and Order, OIP concluded that each respective Minimum Decision Record in its entirety may be withheld from them under the deliberative process privilege form of the frustration exception set forth in section 92F-13(3), HRS, under Part II of the UIPA.

The full formal opinion, as well as a summary, is posted on the Laws/Rules/Opinions 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 oip@hawaii.gov.  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 oip@hawaii.gov.