What Records Are Restricted or Closed by Law?
Recent OIP Opinion
OIP Staff Update
"You Can't Always Get What You Want":
What Records Are Restricted or Closed by Law?
The Uniform Information Practices Act (Modified) ,
Chapter 92F, Hawaii Revised Statues ("UIPA"), opens State
and county government records to public scrutiny so as to protect
the public's interest. The law provides for five exceptions to this
general rule of open records. The law does not require disclosure
of the following categories of records.
Personal Privacy Exception
Records which, if disclosed, would constitute a clearly unwarranted
invasion of personal privacy.
Under the law, privacy interests of the individual
must be balanced against the public interest in disclosure. If the
privacy interest of the individual outweighs the public interest
in disclosure (the "balancing test"), then disclosure
would be a clearly unwarranted invasion of privacy. In these instances,
disclosure of the government record would not be required. In conducting
this balancing test, the public interest to be considered is that
which sheds light upon the workings of government.
Examples of information in which an individual has
a significant privacy interest include: medical, psychiatric, or
psychological history such as diagnosis, condition, treatment, or
evaluation; eligibility for social services or welfare benefits
or the determination of benefit levels; information describing an
individual's finances; and personal recommendations or evaluations.
Although an individual may have a significant privacy
interest, the balancing test must be applied in these situations
to determine whether to disclose the records.
Records that must be confidential in order for government to avoid
the frustration of a legitimate government function.
Some examples of records that need not be disclosed,
if the disclosure would frustrate a legitimate government function,
include: records or information compiled for law enforcement purposes;
trade secrets or confidential commercial and financial information;
and information identifying or pertaining to real property under
consideration for future public acquisition, unless otherwise available
under state law.
In recent opinion letters, the OIP considered the
frustration exception in determining access to subcontractor cost
information (OIP Op. Ltr. No. 97-4), to an environmental geographic
information system database (OIP Op. Ltr. No. 97-9), and to a Honolulu
Ethics Commission advisory opinion (OIP Op. Ltr. No. 98-1; see page
Three Other Exceptions
The personal privacy exception and the frustration exception are
the most frequently asserted exceptions. There are three other exceptions
to the general rule of open and accessible records:
1) Records pertaining to the prosecution or defense
of any judicial or quasi-judicial action to which the state or any
county is or may be a party, to the extent that such records would
not be discoverable.
2) Records that are protected from disclosure by state
or federal law or protected from disclosure by judicial rule.
3) Partial and draft working papers of legislative
committees, the personal files of members of the Legislature, and
unfiled committee reports.
These five exceptions are listed in Section 92F-13,
Hawaii Revised Statutes. Section 92F-14 gives examples of information
in which the individual has a significant privacy interest.
"But If You Try Sometime..."
To begin a record request, contact the agency holding the record.
If troubles arise, then call the Office of Information Practices
or take legal action.
The OIP recommends that requests be made in writing
so there is a paper trail in case it is needed later. Written requests
should include name (or alias), address, phone number, description
of item requested, date, and any costs you are prepared to pay.
In a written request, describe any information you
are not seeking if you have any reason to believe that this information
is confidential. If the agency has to determine whether you want
that information its response to your request will be delayed.
Recent OIP Opinion:
Honolulu Ethics Commission Advisory Opinions
The Honolulu Ethics Commission ("Commission")
is not required to provide a copy of an advisory opinion pursuant
to a request for an advisory opinion about a specifically identified
individual because disclosure would frustrate a legitimate government
function of the Commission. Haw. Rev. Stat. Section 92F-13 (3) (1993).
Under the Revised Ordinances of the City and County
of Honolulu and the Honolulu City Charter, the Commission is required
both to issue advisory opinions and to segregate individually identifiable
information from its advisory opinions, where possible, and to make
those segregated opinions available to the public.
When an advisory opinion about a specifically named
individual has been requested, no amount of segregation can protect
the identity of the people involved in the opinion because the requester
already knows who the advisory opinion is about. Such a public disclosure
would frustrate the Commission's legitimate functions by impairing
its ability to solicit candid information in the future and its
ability to investigate and render advisory opinions regarding claims
of unethical behavior.
Therefore, when the Commission receives such a request,
the OIP advises making copies of all its segregated advisory opinions
available to the requester, who is then free to choose which advisory
opinions he or she is interested in. [OIP Op. Ltr. No. 98-1, January
Last month's Openline reported that there were 256
bills affecting information practices in the 1998 Regular Session
of the Hawaii State Legislature. As of March 12, only 58 of those
bills made it past the First Crossover deadline. The list below
provides information on a few of the remaining bills affecting information
practices that are being tracked by the Office of Information Practices.
To request a full report of the bills being tracked by this office
The Office of Information Practices
S.B. No. 2983 would require the State's open meetings law to be
administered by the Office of Information Practices (OIP). Would
also move the OIP from the Executive to the Judicial branch of government.
Job Reference Liability
H.B. No. 3088 would immunize employers from civil liability for
disclosing information about a current or former employee to a prospective
employer of that employee.
Notification of Civil Action
H.B. No. 2774 and S.B. No. 2785 require that the OIP be notified
in writing at the time a civil action relating to chapter 92F, Hawaii
Revised Statutes, is filed.
Health Care Information
S.B. No. 3084 creates a new chapter in the Hawaii Revised Statutes
entitled "Confidentiality of Health Care Information"
that restricts the conditions under which confidential medical information
may be disclosed.
Sex Offender Registration
S.B. No. 2786 would limit the type of information that is made public
about a sex offender's future residence and street name. This amendment
would be consistent with the statute's existing provision that only
the street name and zip code of the sex offender's current residence
be made public.
OIP Staff Update
The Office of Information Practices bids aloha and
mahalo to Sylvia Costa, Legal Clerk. Sylvia retired in November
after a long career in public service, eight years of which were
with the OIP. Before joining the OIP, Sylvia worked 12 sessions
for the Legislature, back to when John Burns was Governor, for two
constitutional conventions, and for the City & County of Honolulu's
Department of Data Systems.
Sylvia is already enjoying her retirement: cheering
on the Rainbows in Las Vegas, visiting her daughter in Seattle,
and cruising the oceans of the world. Happy retirement, Sylvia.
We miss you in the office. See you at karaoke!