OIP POSTS OPINIONS ON THE DELIBERATIVE PROCESS PRIVILEGE AND OTHER ISSUESPosted on May 21, 2019 in Featured, What's New
The state Office of Information Practices (OIP) has posted online summaries of its latest opinions on its Opinions page at oip.hawaii.gov. The full text of formal opinions are also posted there.
OIP Op. Ltr. No. F19-05: In its first opinion on the issue since the deliberative process privilege was rejected by the majority opinion in Peer News v. City and County of Honolulu, OIP concluded that under the UIPA, as interpreted by the Hawaii Supreme Court, deliberative and predecisional materials cannot be withheld on the basis that they would frustrate an agency’s decisionmaking function, although such materials may still be withheld under the UIPA’s frustration exception where some other specifically identified government function would be frustrated by disclosure. Peer News LLC v. City and County of Honolulu, 143 Haw. 472 (2018). OIP found that the government function the Department of Taxation sought to protect was its decisionmaking function by another name, so it could not use the UIPA’s frustration exception to withhold the “assumptions, bases, computations, source data, and documents and analysis relied upon” for revenue estimates to protect its ability to produce objective and independent revenue estimates. See HRS § 92F-13(3). OIP also concluded that the records could not be withheld based on a confidentiality statute or as working papers of a legislative committee. See HRS § 92F-13(4) and (5).
OIP Op. Ltr. No. F19-04: Consistent with OIP Opinion Letter No. 91-10 concluding that appraisal reports for State lands are public, OIP likewise concluded that an appraisal report prepared for the Department of Budget and Fiscal Services of the City and County of Honolulu (City) was subject to disclosure. Although appraisal reports relating to the sale of an interest in county land are not made public by statute, as appraisal reports prepared for State of Hawaii (State) lands are, OIP could not logically conclude on the basis of that distinction that disclosure of appraisal reports would provide a manifestly unfair advantage to purchasers of interests in county land when disclosure of similar reports does not provide a manifestly unfair advantage to purchasers of interests in State lands. Thus, OIP concluded that appraisal reports relating to the sale of an interest in county land do not fall under the UIPA’s exception for records whose disclosure would frustrate a legitimate government function and they must be publicly disclosed upon request under the UIPA.
OIP Op. Ltr. No. F19-03: OIP concluded that two executive sessions in which the Hawaii Tourism Authority (HTA) discussed ongoing negotiations for prospective contracts were justified under the HTA-specific executive session purpose allowing it to hold a closed meeting to discuss information whose confidentiality is necessary to protect Hawaii’s competitive advantage as a visitor destination. However, neither the HTA-specific executive session purpose nor the Sunshine Law’s general purposes allowed HTA to go into executive session to discuss its annual budget. Finally, after examining communications among HTA members outside of board meetings, OIP concluded that only one email from the HTA’s chair to the other members containing background information on a matter of board business was technically a violation of the Sunshine Law, but that its public impact was minimal as no further discussion among board members ensued and the matter could have properly been sent to all members by a nonmember such as an HTA employee.
S Memo 19-4: OIP found that the State Land Use Commission (LUC) improperly discussed an item not on its agenda in violation of the Sunshine Law. Further, the LUC could not have voted to amend its agenda to add this item because it did not have enough members present at the meeting to amend its agenda to add an item. See HRS § 92-7 (Supp. 2018). Although the LUC should not have discussed an item not on its agenda, given that the LUC was evidently treating the discussion of two subpoenas with its attorney in executive session as an agenda item, it should have allowed testimony on that item as would be required for any agenda item, whether or not discussed in executive session.