OIP ISSUES THREE NEW FORMAL OPINIONS

News Release from OIP, Jun 5, 2023

The State Office of Information Practices (OIP) issued three new formal opinions, all of which involved Hawaii’s Uniform Information Practices Act (UIPA), Chapter 92F, HRS.  The full opinions can be accessed via the Formal Opinion Letters page at oip.hawaii.gov and are briefly summarized as follows.

OIP Op. Ltr. No. F23-03:  This opinion resolved three consolidated appeals by an anonymous requester seeking the names of all students and faculty serving on the UH William S. Richardson School of Law Admissions Committee (Admissions Committee) for various school years.  Without changing its previous conclusions in OIP Opinion Letter Number 89-9 (Op. 89-9) that names of faculty and student members of the Admissions Committee may not be withheld under the UIPA’s privacy or frustration exceptions at section 92F-13(1) and (3), HRS, OIP partially reconsidered its ultimate holding that student names may not be withheld because of a change in the law, namely, enactment of section 92F-4, HRS, allowing agencies to waive compliance with the UIPA when doing so is necessary to avoid losing federal funding or other services.

The UH is an agency that receives funding under the federal Family Educational Rights and Privacy Act (FERPA), which provides that funds shall not be made available to an educational institution that has a policy or practice of permitting the release of education records without written consent.  20 U.S.C. § 1232g(b)(1).  Based on advice from the U.S. Department of Education which administers FERPA, OIP found that the names of student members are part of their education records, and thus concluded that UH may deny access to the student names under section 92F-4, HRS, in order to prevent jeopardizing its federal funding under FERPA.

OIP Opinion Letter No. F23-04:  Requester sought copies of communications between the County of Maui Department of the Corporation Counsel (CORP CNSL-M) and its clients regarding the drafting of a bill.  CORP CNSL-M partially granted the record request.  Upon appeal, CORP CNSL-M argued that because Requester declined to pay the estimated fees and costs for the portion of the request that was granted, CORP CNSL-M did not have to respond to Requester’s appeal of the portion of the record request that was denied.  OIP concluded that the right to appeal a denial of a record request is independent of a requester paying fees and costs for the part of a record request that is granted and CORP CNSL-M was required to respond to the appeal.

Following the in camera review of the records withheld, OIP found that most of the redactions CORP CNSL-M made were communications made for the purpose of facilitating the rendition of professional legal services between CORP CNSL-M and its clients, and concluded that most of the redactions made by CORP CNSL-M were protected by the attorney-client privilege.  The attorney work product doctrine was determined to be inapplicable as the records in question do not appear to have been prepared in anticipation of litigation and instead appear to have been prepared in the ordinary course of business.

OIP Opinion Letter Number F23-05:  This appeal involved a request for records relating to a request for proposals regarding the Ala Wai Small Boat Harbor.  OIP found that the Department of Land and Natural Resources (DLNR) could readily retrieve information to create a list of selection committee member names and rejected DLNR’s claim that disclosure would frustrate of legitimate government objective under HRS section 92F-13(3).  OIP also found that a list of meetings between proposal submitters and a specified employee would not be readily retrievable by DLNR, and thus concluded that DLNR had no duty under the UIPA to create such a list in response to Requester’s request.

OIP also concluded that DLNR was authorized to withhold the identities of proposal submitters to avoid the frustration of a legitimate government function, so DLNR was not required to create a compilation or summary of that information.  OIP further concluded that in the absence of any waiver, DLNR was authorized under the frustration exception to withhold information in correspondence that would identify a proposal submitter (including the name and contact information for the submitter’s attorney) and other information from the proposal (including references to other companies).  Finally, OIP found that the information was reasonably segregable and concluded that DLNR must provide a redacted version of the correspondence.

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