OIP ISSUES FOUR NEW OPINIONS

News Release from Office of Information Practices, Jul 18, 2023

The State Office of Information Practices (OIP) issued four new informal opinions, involving Hawaii’s Uniform Information Practices Act (UIPA), Chapter 92F, HRS, or the Sunshine Law, Part I of Chapter 92, HRS.  Summaries of the informal opinions can be accessed via the Informal Opinion letters page at oip.hawaii.gov and complete copies are provided upon request to OIP.  The new opinions are briefly summarized below.

S Memo 23-01:  The Requester questioned whether Neighborhood Board (NB) 13 properly amended its September meeting agenda to add an item that had generated widespread community opposition regarding the liquor license renewal of Maunakea Liquor (ML) by the Honolulu Liquor Commission (LIQC-HON).  OIP concluded that because NB 13 had previously taken action in May and its discussion of ML’s license at its September meeting did not involve a matter of current board business, no Sunshine Law violation occurred.  OIP noted, however, that the issue is a cyclical one that can be expected to regularly arise before NB 13 whenever ML’s license comes up for renewal or is considered in connection with an administrative action, and OIP cautioned NB 13 in the future to not add an item that “is of reasonably major importance” and for which board action will “affect a significant number of persons” in violation of section 92-7(d), HRS.  OIP also examined section 92-81, HRS, a statute that applies exclusively to neighborhood boards and allows members of the public to give input on matters even if they are not listed on an agenda.  OIP concluded, however, that this Sunshine Law exception did not apply because the topic of ML’s liquor license had been raised by NB 13’s members, and not by LIQC-HON or members of the public.

U Memo 23-05:  Requester made record requests to the County of Hawaii Department of Environmental Management (DEM-H) on June 2, 23, and 24, 2020.  DEM-H provided several records in response to the requests, but Requester appealed, based on her belief that DEM-H had denied access to additional records that it could have found with sufficient search.  OIP considered the adequacy of DEM-H’s response to each request separately and found that for all three requests, DEM-H had interpreted the request in a reasonable way and either provided the responsive records it maintained or responded that it did not maintain the requested records.  OIP therefore concluded that DEM-H had responded properly under the UIPA to all requests

U Memo 23-06:  A former Office of Hawaiian Affairs (OHA) employee (Requester) sought records relating to a consultant’s investigation of internal complaints about him.  OIP found that although Requester sought his personal records, both versions of the investigation report and related documents were prepared or obtained because of the prospect of litigation and were therefore “prepared in anticipation of litigation,” with limited exceptions.  OIP concluded that these records are protected by the attorney work product doctrine and thus may be withheld from Requester.  OIP also concluded that to the extent any factual information contained in the consultant’s reports were previously disclosed to requester, such information is not protected by the attorney work product doctrine and must be disclosed.  Excerpts from OHA’s Employee Handbook, information from the U.S. Equal Employment Opportunity Commission and U.S. Department of Labor websites, and coversheets that the consultant used to label and separate the attachments to the report are not personal records and were not “prepared in anticipation of litigation,” so are not protected by the attorney work product doctrine and must be disclosed as government records.

U Memo 23-07:  Requester sought copies of executive session minutes from the State Public Charter School Commission’s (PCSC) meeting.  OIP concluded that PCSC was properly in executive session for discussions with its attorney under HRS section 92-5(a).  OIP further found that disclosure of the discussion between PCSC and its attorney would frustrate the purpose of the executive session, but that some portions of the minutes were nonsubstantive.

Thus, OIP concluded that PCSC could withhold the discussion between PCSC and its attorney, but should disclose the nonsubstantive portion of the minutes.

OIP also found, sua sponte, that the executive session minutes did not convey a true reflection of the matters discussed at the meeting and the views of the participants as required by HRS section 92-9.  Although OIP concluded that PCSC must create a new set of minutes for the executive session that includes omitted information, to the best of PCSC’s ability, OIP also noted that PSCS would not automatically be required to provide Requester with a redacted copy of the rewritten minutes if another request was made.  With greater details in the revised minutes, OIP noted that PCSC was likely to be more clearly justified in withholding them as pertaining to its attorney-client discussion.

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