News from OIP: SEVEN OPINIONS ISSUED

The Office of Information Practices recently issued one formal opinion and six informal opinions under the Uniform Information Practices Act, chapter 92F, Hawaii Revised Statutes (UIPA), and Sunshine Law, part I of chapter 92, HRS. The summaries of the opinions can be found on the Opinions page at oip.hawaii.gov and by clicking the links below.

In OIP Op. Ltr. No. F25-07, a member of the public asked whether the Maui County Planning Commission's (Commission) written summary accompanying its recorded minutes violated the Sunshine Law by failing to record all votes made by the Commission at a meeting. OIP concluded that the Commission did violate the Sunshine Law's minutes requirements in section 92-9, HRS, as the summary failed to document all motions and votes by individual members, and included incorrect timestamps, hindering public access to key decision points. Although these violations cannot be fully remedied, the Commission took corrective action by posting detailed written minutes akin to a transcript, which mitigated public harm.

S MEMO 25-06A member of the public (Requester) complained that he was not allowed to testify anonymously before the Maui County Council (Council). OIP found that based on (1) the Council's prior interactions with Requester; (2) Requester's lack of objection to being identified by his real name in previous meetings while using the same screen names; and (3) the absence of any advance notice that Requester wished to testify anonymously prior to the second time he was called on to testify during the meeting, that the Council acted reasonably in assuming that Requester did not intend to remain anonymous until Requester informed the Council otherwise. OIP also found that once Requester informed the Council of his preference for anonymity, the Council accommodated that request. OIP therefore concluded that the Council did not prevent Requester from providing testimony anonymously and did not violate the Sunshine Law.

U MEMO 25-20Requester made a record request to the Hawaii County Department of Parks and Recreation (Parks) for copies of records that reported stalking allegations against him. Parks granted the request. Requester then stated in an email to Parks which included OIP as a "cc" recipient that he "shall file yet another appeal with OIP." Parks' response to the appeal stated that it had "searched our records and we have provided everything related to the request," and Parks' director stated "I am the one who provided the emails. I did not conduct a 'search' since I knew the exact emails that I was referring to." OIP concluded that (1) Parks provided responsive accessible personal records under part III of the UIPA; and (2) because an employee had actual knowledge that additional responsive records did not exist, Parks did not need to conduct a search for records under part II of the UIPA.

U MEMO 25-21A requester made a record request to the University of Hawaii (UH) for a roster of graduate assistants. UH partially granted the request but withheld information that would make it possible to identify the students. Based on guidance from the United States Department of Education (U.S. DOE), OIP found that the U.S. DOE would likely consider records withheld by UH to be students' education records under the Family Educational Rights and Privacy Act (FERPA). Because FERPA prohibits the release of such records without student consent and conditions federal funding on compliance, OIP concluded that disclosure of those records would jeopardize UH's federal funding, and therefore UH was authorized to withhold the records under section 92F-4, HRS.

U MEMO 25-22Requester questioned whether the City and County of Honolulu, Department of Budget and Fiscal Services (B&F-HON) properly withheld financial records from six offerors and two of the six proposals received for beachboy services. OIP found section 102-3, HRS, did not apply to protect the records because it pertains to bids and bidders, and the records at issue were proposals that were also not submitted under oath or in response to a questionnaire. OIP also found that the proposals could not be withheld under section 92F-13(3), HRS, because no trade secrets were contained in the records; and, without an ongoing procurement, the proposals could not be withheld under the manifestly unfair advantage standard of the frustration exception. OIP concluded that detailed financial information could be withheld to prevent substantial competitive harm, but narrative portions of the proposals were not confidential. However, business referral sources, a third-party training manual, and personal references could be withheld to avoid frustration of a legitimate government function under section 92F-13(3), HRS, as well as personal information about employees and interns, unrelated to their qualifications for the job, to avoid a clearly unwarranted invasion of privacy under section 92F-13(1), HRS.

U MEMO 26-01Requester sought all state contracts pertaining to the "Maui Fires and Emergency Relief" from the Office of the Governor (GOV) even though it believed the Department of Budget and Finance (B&F) likely held the records. GOV disclosed one responsive record but did not obtain records from other executive agencies. Requester questioned GOV's claim that no additional records existed and asserted that GOV should obtain the records from the agencies under its executive authority. OIP concluded that the executive branch as a whole is not a single "agency" under section 92F-3, HRS; each department is a separate agency, and requests must be directed to the appropriate department head as defined by statute. Because B&F is headed by the Director of Finance, a request to GOV alone does not obligate B&F or other executive departments to respond, nor is GOV required to provide records it does not maintain or that are maintained by other agencies within the executive branch. OIP also concluded that GOV conducted a reasonable search for records and fulfilled its obligations under the UIPA, no further duty to search for additional records.

U MEMO 26-02Requester sought an unredacted copy of the executive meeting minutes (Executive Minutes) for the Agribusiness Development Corporation (ADC) Board of Directors meeting on August 8, 2023. Based on a First Circuit Court order issued in Pub. First L. Ctr. v. Def. Council; Jon N. Ikenaga; and Agribusiness Dev. Corp. Bd. of Dir., Civ. No. 1CCV-24-0000050 (Haw. Cir. Ct. January 10, 2024), and the fact that the Executive Minutes have now been publicly disclosed except for minor redactions allowed by the Court, OIP advised that ADC should disclose the Executive Minutes to Requester with only the redactions allowed by the Court's order.

Informal opinions are not considered precedential as they do not resolve new legal issues and instead apply existing formal opinions and law to the particular facts of those cases.