TWO NEW FORMAL OPINIONS

Posted on Nov 26, 2014 in Featured, What's New

The state Office of Information Practices has issued two new formal opinions in FY 2014 to date, which are posted on its website and are summarized as follows.

In OIP Opinion Letter No. F15-01, OIP concluded that the toxicology reports of deceased motorists are required to be disclosed upon request, as no exception to disclosure under the UIPA applies.  After applying a balancing test, OIP determined that the public has a considerable interest in toxicology information about the presence and level of alcohol, drugs or other substances because the information in the toxicology reports sheds light on the coroner’s performance of his duty to investigate and that this public interest outweighs the reduced but still significant privacy interests of the deceased motorists.  Thus, disclosure of the toxicology reports at issue would not constitute a clearly unwarranted invasion of the personal privacy of the deceased motorists.

Additionally, OIP found that surviving family members of the deceased motorists do not have a significant privacy interest in information contained in the toxicology reports at issue.  In the absence of a “significant” privacy interest, OIP need not perform the balancing test of section 92F-14(a), HRS, as long as there is at least a “scintilla” of public interest in the toxicology reports.  OIP thus concluded that the toxicology reports’ disclosure would not constitute a clearly unwarranted invasion of the personal privacy of the decedents’ families.

In OIP Opinion Letter No. F15-02, OIP concluded that the Board of Trustees of the Office of Hawaiian Affairs (OHA) (OHA Board) violated the Sunshine Law by jointly signing a letter rescinding (Rescission Letter) an earlier letter by its Chief Executive Officer (CEO), Mr. Kamana’opono Crabbe, to United States Secretary of State John F. Kerry (Crabbe Letter).  After finding that the Trustees’ response to the Crabbe Letter was board business, OIP further found that all Trustees discussed whether the OHA Board should respond to the Crabbe Letter by sending the Rescission Letter through a series of one-on-one communications, either directly or through e-mail messages addressed to staff as mere go-betweens for board members.  Unlike the more typical situations where communications with staff would not be considered communications between board members because staff may independently pass on or compile information in the course of their duties, the serial discussions in this case among all Trustees was not permitted under any part of section 92-2.5, HRS, and did not take place in a properly noticed meeting.

While OIP concluded that the Trustees’ communication violated the Sunshine Law, it noted that the Trustees could have properly met to discuss board matters if the Sunshine Law’s emergency and interactive technology meeting provisions had been invoked.  OHA’s argument that the Crabbe Letter was unauthorized would have provided a basis for holding an emergency meeting based on an unanticipated event as permitted by section 92-8, HRS, and such an emergency meeting could have been done by interactive technology connecting Trustees in different locations as permitted by section 92-3.5, HRS.

OIP found also that the OHA Board had violated the Sunshine Law on a separate occasion by denying the public’s right to testify on an agenda item scheduled for executive session.  Because section 92-3, HRS, requires boards to “afford all interested persons an opportunity to present oral testimony on any agenda item,” and does not make an exception for items to be heard in executive session, OIP confirmed that the public has a right to present oral testimony on items to be heard in executive session, and the OHA Board’s failure to allow such testimony violated the Sunshine Law.

Summaries of informal opinions and the complete text of formal opinions can be found on the Opinions page at oip.hawaii.gov.  For the latest open government news, check for 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 oip@hawaii.gov.   Also, if you would like to receive What’s New articles or attachments in a Word format, please contact OIP at (808) 586-1400 or oip@hawaii.gov.