OIP’s Analysis of the Case Rejecting the Deliberative Process Privilege

Posted on Mar 1, 2019 in Featured, What's New

On December 21, 2018, a three-member majority of the Hawaii Supreme Court, over a vigorous dissent by two other Justices, reversed the Circuit Court and rejected nearly 30 years of OIP’s opinions recognizing the “deliberative process privilege” (DPP) as a limited form of one of the UIPA’s statutory exceptions.  In Peer News LLC v. City and County of Honolulu, __ Haw. __ (December 21, 2018) (No. SCAP-16-0000114, 2018 WL 675464) (Peer News), the majority held that government agencies could no longer use the DPP to justify withholding certain internal records and that “decision-making” was not a government function that fell within the frustration exception to disclosure under HRS § 92F-13(3).  Consequently, OIP has been advising agencies to no longer use the DPP or the decision-making function to justify nondisclosure under the frustration exception.

OIP has prepared a detailed analysis of the majority and dissenting opinions in Peer News, which can be found at the top of the Opinions page at oip.hawaii. gov.

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