The state Office of Information Practices (OIP) posts online summaries of memorandum opinions on its Opinions page at oip.hawaii.gov. Here is an overview of recent summaries that were posted.
S Memo 19-1: OIP concluded that ad hoc hiring committees formed by a University of Hawaii (UH) administrator to review applications and recommend potential candidates to that administrator is not a group created by constitution, statute, rule, or executive order, and thus the hiring committees were not “boards” subject to the Sunshine Law. HRS § 92‑2(1) (2012). The circumstances in this case further showed that the hiring committees were not acting in the place of the UH Board of Regents through a delegation of that board’s powers and duties, so the hiring committees were not subject to the Sunshine Law as proxies for a Sunshine Law board.
S Memo 19-2: OIP concluded that the Stadium Authority (Authority) improperly went into executive session to consider a proposed consultant contract. Although the purported reason for the executive session was to “consult with [its] attorney on questions and issues pertaining to [its] powers, duties, privileges, immunities, and liabilities” pursuant to section 92‑5(a)(4), HRS, OIP found that there was no discussion by Authority members and its Deputy Attorney General and the executive session discussion was limited to hearing a report from an employee.
The Authority’s response to the appeal also asserted that “discussions of contracts in open session that haven’t been fully executed would frustrate governmental processes.” However, the Authority’s response did not cite to any of the authorized purposes in section 92‑5(a), HRS, or any other law, that would possibly apply to allow a closed meeting based upon this asserted justification. Because the Authority’s consideration of the proposed contract did not qualify for any of the authorized purposes to hold an executive session set forth in section 92-5(a), HRS, OIP concluded that the executive session was improper under the Sunshine Law.
S Memo 19-3: OIP concluded that the Honolulu Authority for Rapid Transit (HART) did not violate the Sunshine Law by entering an executive meeting to discuss with its attorneys a presentation made by the State Legislative Auditor (Auditor) during the public portion of a meeting. Based on OIP’s in camera review of the executive meeting minutes, OIP found that HART members did discuss with their attorneys their legal concerns that were raised during the Auditor’s presentation. Thus, HART’s discussion in an executive meeting was proper under section 92‑5(a)(4), HRS, and not in violation of the Sunshine Law’s open meeting requirement.
U Memo 19-5: Requester sought records of a closed complaint to the Department of Commerce and Consumer Affairs, Regulated Industries Complaints Office (RICO), filed by a third party, which had alleged that the subject of the complaint (“Respondent”) had engaged in the unlicensed practice of dentistry in Hawaii by performing independent medical examinations (IMEs) and doing medical record reviews. Requester did not seek copies of IMEs conducted on third parties or medical or dental information related to the IMEs, but rather “the complaint, the legal proceedings and negotiation, and the conclusion of the case.” RICO denied the request on the basis that the complaint file was “[i]nformation compiled to determine an individual’s fitness to obtain or retain a license” and as such fell within the UIPA’s exception for information whose disclosure would be a clearly unwarranted invasion of personal privacy. See HRS § 92F-13(1) and -14(b)(7).
OIP concluded that section 92F-14(b)(7), HRS, which recognizes a heightened privacy interest in information about a person’s fitness to be granted a license, did not apply directly to the file at issue here, and should not be applied by analogy because Respondent did not have an equivalent privacy interest in allegations that his actions constituted the practice of dentistry in Hawaii. HRS § 92F-14(b)(7) (Supp. 2017). It was therefore not appropriate to withhold the closed complaint file as a whole on the assumption that the file as a whole carried a significant privacy interest. Instead, the records should have been examined on an individual basis to determine whether, based on the information contained in them, they fell under one of the UIPA’s exceptions to disclosure.
U Memo 19-6: OIP concluded that none of the UIPA’s exceptions to disclosure applied to the withholding by the Mayor’s office of complaints filed by Louis and Katherine Kealoha (Complainants) with the federal Equal Employment Opportunity Commission (EEOC) against the City and County of Honolulu (City) alleging discrimination by the City Ethics Commission (ETHICS‑HON) (Complaints). The complaints had been provided to the Mayor’s office apparently for information purposes only, since the Mayor was not the subject of EEOC’s investigation. OIP found that the exception in section 92F-13(2), HRS, did not apply because the Complaints did not qualify for this exception that only applies to records that are not discoverable under judicially recognized privileges. OIP found that the “frustration of a legitimate government function” exception in section 92F-13(3), HRS, also did not apply because disclosure of the Complaints would not frustrate any investigative functions when the Complaints were already provided or maintained by the subject of the investigation, namely the City. Also, OIP found that the exemption in section 92F-13(4), HRS, which covers records protected by state or federal statutes, did not apply because the federal regulations cited by the Mayor’s office required only the EEOC, not the Mayor’s office, to keep records confidential. Finally, OIP found that the Complainants had waived their privacy interest in information in the Complaints that they had already intentionally disclosed to the news media, and also that other general information in the Complaint was public because the public interest outweighed the Complainants’ privacy interests.
U Memo 19-7: The Department of Taxation awarded a tax modernization contract to one of several proposers, who subsequently made a record request for an unsuccessful bidder’s proposal and related documents (Proposal). Revenue Solutions, Inc. (RSI), the unsuccessful bidder, sought to have the Proposal withheld from disclosure, asserting that it contained confidential business information (CBI). The unredacted Proposal, and a version redacted by TAX’s attorney was provided to OIP for its in camera review.
OIP found that names and résumé information of employees within the Proposal must be public as OIP has previously found that the UIPA’s privacy and frustration exceptions at section 92F-13(1) and (3), HRS, do not protect this type of information in proposals for State contracts. Direct telephone numbers and email addresses of employees and names and contact information of personal references, however, may be withheld in order to avoid the frustration of a legitimate government function under section 92F-13(3), HRS. OIP also concluded that RSI’s Best and Final Offer and Proposal must be disclosed (with the exception of direct contact information of employees and references), as there was no claim of frustration of any legitimate government function by TAX.
In U Memo 19-8, the Maui Planning Commission (PLAN-M) initially denied, in part, a request for records related to a petition filed by another individual requesting a rule change, claiming that the deliberative process privilege (DPP) protected the withheld records under the UIPA’s exception to disclosure for information which, if disclosed, would frustrate a legitimate government function. See HRS § 92F-13(3) (2012). Subsequent to the filing of this appeal, however, the Hawaii Supreme Court, in Peer News LLC v. City and County of Honolulu, 143 Haw. 472 (Dec. 21, 2018) (Peer News), invalidated the use of DPP under the UIPA to withhold certain internal records. See OIP’s What’s New articles on December 21, 2018 and March 1, 2019. After being informed of the Peer News decision, PLAN-M made available those records for which it had previously asserted that only the DPP applied.
For those records that were also withheld under the attorney-client privilege (see HRS § 92F-13(3) and (4)), OIP reviewed them in camera and found the communications did indeed contain information covered by the attorney-client privilege and thus may be withheld from disclosure under section 92F‑13(3) and (4), HRS, except for a portion on one email which OIP found should be disclosed. HRS § 92F-13(3) and (4).
In U Memo 19-9, OIP found that the City and County of Honolulu Department of Facility Maintenance conducted a reasonable search for responsive records in the locations where any responsive records were mostly likely to have been found. Consequently, OIP concluded that its ultimate response providing four responsive documents was proper under the UIPA.
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