Openline
December 1998

Rules Adopted Pending Governor's Approval
OIP Guidance: "Please Identify Yourself"
Recent OIP Opinions
Mele Kalikimaka!
Staff Update

Rules Adopted Pending Governor's Approval

On November 20, 1998, the Office of Information Practices released the statement below regarding the proposed administrative rules.

The proposed rules create procedures that agencies must follow when receiving requests to inspect and copy government records. They also establish fees that State and county agencies may charge for searching for, reviewing, and segregating confidential or private information from government records.

More information, including the text of the amended proposed rules, is available at the OIP's web site at www.state.hi.us/oip.

Statement Regarding Proposed Rules
The Office of Information Practices has completed its second round of public comment on rules that would require government agencies to respond to most requests for information within a reasonable time, not to exceed ten days, and to assess a fee for segregation of confidential information from public records.

OIP Director Moya Gray has decided to adopt the rules with a few technical changes. The OIP will recommend that Governor Cayetano approve these rules. The new rules will represent an improvement for the large majority of information requesters. "Many of the people who call the OIP face long delays in getting the documents they have requested. A time limit will improve public access."

However, because of concerns expressed by public interest groups and the media, who want even faster response times, Gray said that she will look into creating a task force to make recommendations to the OIP as to whether particular types of documents should be more rapidly available.

OIP Guidance:
"Please Identify Yourself"

The OIP has heard from many requesters that they are being asked to identify themselves or to put their request for government records in writing. The requesters want to know whether this is appropriate.

The OIP has opined that, in most instances, an agency may not ask for the person's name (see OIP Op. Ltr. No. 90-29 at 13-14). Thus, if a person wants to be an anonymous requester, that is permissible. Neither may an agency ask what the person proposes to do with the requested information (Op. Ltr No. 93-7 at 7).

In most cases an agency may not require a written request (Op. Ltr No. 90-29 at 14). However, to prevent confusion, frustration, and anger between the requester and the agency, the OIP strongly recommends that the requester be very clear about what records he or she is seeking. Getting an agency to understand exactly what the requester wants is best achieved by putting the request in writing.

The OIP's adopted rules give the requester two choices: an informal request may be either oral or written. However, the requester can also "start the clock ticking" on an agency's response time by submitting a formal request for records. The formal request must be in writing.

Recent OIP Opinions

Monthly Outstanding Checks Reports
Monthly Outstanding Checks Reports ("Reports") must be disclosed to the public, despite Department of Accounting and General Services' ("DAGS") claims that disclosure is premature, that disclosure would be a burden to the agency, and that disclosure would result in premature claims for the warrant amounts, placing unnecessary demands upon DAGS’ resources. There is no exception from disclosure under the UIPA for claims that disclosure may be premature, may be a burden on the agency, or may result in increased demand upon agency resources. While the UIPA does except from disclosure those records the disclosure of which results in the frustration of a legitimate government function, the agency’s ability to carry out some legitimate government function must be truly impaired. [OIP Op. Ltr. No. 98-4, June 17, 1998]

Police Internal Affairs Investigation Reports
When there has been a shooting by a police officer, the Honolulu Police Department ("HPD") Internal Affairs determines whether employee misconduct has occurred and whether discipline should be imposed. The investigative findings are generated in administrative investigation reports. The news media requested access to the administrative investigation reports in certain police shooting incidents. The HPD sought the OIP’s opinion as to whether the record must be disclosed, asserting that the entire record should be protected from disclosure in order to avoid frustrating the agency’s investigative functions and violating privacy rights.

The OIP opined that, as redaction of portions of the report would protect both the investigative functions of the HPD and privacy interests of individuals, the HPD should not withhold the entire report from disclosure. Instead, however, the agency should redact the information in which significant privacy interests are found not to be outweighed by the public’s interest in government operations. The "privacy" exception, section 92F-13(1), Hawaii Revised Statutes, applies to such information, including the identities of complainants and witnesses and certain personnel information.

In addition, information that identifies complainants and witnesses may be redacted under the "frustration of a legitimate government function" exception, section 92F-13(3), Hawaii Revised Statutes, because this information must be confidential in order for the agency
to avoid the frustration of its legitimate government function. In this case, the OIP opined that disclosure of this information would impair the HPD’s ability to conduct a full and accurate investigation.

The HPD may also redact employees’ statements, under section 92F-13(3), Hawaii Revised Statutes. The OIP opined that disclosure of employees’ statements may incriminate the employee, thus violating the individual’s constitutional right against self-incrimination. Requiring disclosure of these statements would impair the government’s legitimate function of preserving and conducting a full and accurate investigation.

Where a request for disclosure identifies the record by officer name and incident, and where the agency asserts that the officer’s identity is confidential, the OIP advised the HPD to respond by neither confirming nor denying whether the officer named is the subject officer. [OIP Op. Ltr. No. 98-5, Nov. 24, 1998]

Mele Kalikimaka!

All of us at the Office of Information Practices wish you and your loved ones a joyful holiday season. We thank you for your interest and support during the past year, and we wish you a happy, healthy, and prosperous New Year!

Moya T. Davenport Gray
Lorna Loo Aratani
Carlotta M. Dias
Michael Little
Lynn Otaguro
Randall J. Port
Coleen F. Yoshina

Staff Update

The Office of Information Practices bids aloha to Jackie Conant, who has returned to paralegal work in the private sector. For a year and a half Jackie was a valuable member of the OIP, performing the paralegal work that supports the work of the staff attorneys. Jackie's energy and cheerfulness were an inescapable and welcome part of the work week. We miss you, Jackie, and we wish you the very best in your career and in life.

As another AYSO soccer season ends, Openline acknowledges the involvement of several staff members in youth soccer this year. We have among us two brand new members of that popular American institution, the soccer mom! Lorna Aratani's favorite soccer player is Tyler and Lynn Otaguro's favorites are Matthew and Katherine. In addition, Moya Gray continues to cheer on Michael and Tiare. Another staff attorney, Randy Port, was a brave volunteer referee for the same games, which put him under close scrutiny by the soccer moms.