UIPA Memo 11-11
Permittee Passenger Count Information
Requester asked whether the Department of Land &
Natural Resources (DLNR) may withhold passenger count information
received from permittees holding Marine Life Conservation District
Use Permits for: Commercial Activities in the Molokini Shoal Marine
Life Conservation District (Molokini Use Permit) under the UIPA’s
frustration exception as confidential business information (CBI).
An agency may withhold CBI under the frustration exception.
HRS § 92F-13-3. As a threshold matter, however, that information
must in fact be confidential. See generally OIP Op. Ltr.
No. 05-13 at 3-4 (to qualify for the frustration exception as CBI,
information must not be public already or be of a kind that would
customarily not be released to the public by the person from whom
it was obtained).
Because the daily passenger count information
may be readily witnessed in a public space, OIP found that this
information reported to DLNR would not qualify as CBI and thus must
be disclosed under the UIPA.