OIP Provides Guidance on Responding to Requests for Misconduct Records

Posted on Apr 10, 2013 in What's New

The state Office of Information Practices (OIP) is providing the following guidance in response to numerous inquiries that it has received regarding a recent news media request for records regarding employees who have been suspended or discharged for misconduct, which is a government records request under Part II of the UIPA.

HRS section 92F-12(a)(2) requires the disclosure of “[f]inal opinions, . . . as well as orders made in the adjudication of cases, except to the extent protected by section 92F-13(1).” HRS section 92F-13(1) protects against disclosures that “would constitute a clearly unwarranted invasion of privacy.” Except for county police officers, HRS section 92F-14(b)(4)(B) states that an employee who is suspended or discharged has no significant privacy interest in the following information, which therefore, must be disclosed: name, nature of the employment-related misconduct, the agency’s summary of the allegations of misconduct, findings of fact and conclusions of law, and the disciplinary action taken by the agency, provided that the highest non-judicial grievance adjustment procedures timely invoked by the employee or the employee’s representative has been concluded, and that 30 calendar days have elapsed following the issuance of a written decision sustaining the suspension or discharge. The same provisions of HRS Section 92F-14(b)(4)(B) apply to county police officers, but only when they have been discharged.

Given these statutory provisions, agencies should respond to the record request by completing a Notice to Requester and should keep the following in mind.

First, if the requisite time has passed and a final written decision to suspend or discharge has been issued, then the decision should be provided to the requester. See e.g.OIP Op. Ltr. No. 95-06 (requiring the release of an arbitrator’s decision).

Second, if the requisite time has passed, but there is no written decision, then agencies should know that they are not required to create summaries unless the information is maintained by them and is readily retrievable. If a record does not exist or is not readily retrievable, then the agency should respond by completing a Notice to Requester and checking the appropriate box stating that the request “Cannot be granted because” the either the “Agency does not maintain the records” or the “Request requires agency to create a summary or compilation from records not readily retrievable.” The agency should also select “Agency does not maintain the records” if no employee has been suspended or discharged during the time period of the request for records.

Third, if the requisite time has passed and there is no written decision, but the misconduct information required by HRS section 92F-14(b)(4)(B) is maintained in various personnel documents that are readily retrievable, then an agency may either (a) provide the personnel documents after performing necessary redactions of nonpublic information, or (b) create a summary with the statutorily required public information about employee misconduct. In doing so, the agency must be careful to not include any information that is exempt from public disclosure because it would be a “clearly unwarranted invasion of personal privacy” or would fall within another exception set forth in section 92F-13, HRS, in Part II of the UIPA. For instance, information such as names of confidential sources, personal contact information or social security numbers, or medical information should not be included in an agency’s findings of fact and conclusions of law regarding an employee’s suspension or termination, particularly with respect to third parties.

Fourth, if the time period in HRS section 92F-14(b)(4)(B) has not passed and disciplinary matters are still pending, then agencies should check the appropriate Notice to Requester box stating that the request “Is denied in its entirety” or “Will be granted only as to certain parts,” and describe below the records being withheld under HRS section 92F-14(b)(4)(B) because the disciplinary matter is still pending.

Fifth, agencies should provide the Notice within 10 work days of receiving the written request. If agencies need more than ten work days to search for, review, and redact responsive records, then they should still send an Acknowledgement to the requester within ten days of receiving the written request. The Notice and Acknowledgment forms are available on the Forms page at hawaii.gov/oip. OIP’s Informal Guide to Processing Large or Complex UIPA Record Requests is available on the training and guidance page at http://files.hawaii.gov/oip/openlineguidance.html.

Sixth, OIP’s rules allow agencies to charge $2.50 per 15 minutes to search for records, and $5.00 per 15 minutes to review and segregated records. The $30 fee waiver applies to all record requests, but the $60 public interest fee waiver only applies to entities that have fulfilled the requirements of section 2-71-32, Hawaii Administrative Rules, as explained in OIP’s guidance regarding public interest fee waivers found on OIP’s website. Note that the waivers only apply to UIPA search, review, and segregation fees, and not to copying or delivery costs, which are authorized by a different statute, HRS section 92-21.

Finally, agencies should record this media request and any other written requests for records on the UIPA Record Request Log, which, among other things, will help agencies to properly respond to record requests and to calculate the amounts that may be charged to requesters. The Log form and training materials are available on the UIPA page on OIP’s website.

For additional guidance, OIP’s attorney of the day may be reached by e-mailing [email protected] or calling 586-1400. For the latest on open government news, look for these 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 [email protected]