Opinion Letter No. 02-01
February 1, 2002
Request for Disclosure of Settlement Agreement Between an Agency
and a Private Party
A reporter requested an opinion concerning public
access to a settlement agreement ("Agreement")
between an individual and the University of Hawaii ("University").
The lawsuit involved the right to
profits derived from research into the genetic cloning of animals
conducted at the University.
The OIP informed the University that settlement agreements between
agencies and members of the
public are generally public documents required to be disclosed under
the UIPA, and asked the
University to provide it with the record for confidential review
to determine if the UIPA requires
After the University refused to turn the record over to the OIP
without a court order requiring
disclosure, the Attorney General assigned a deputy to the case.
A Petition to Examine Records of
Agency was drafted for filing in Circuit Court. Shortly before the
suit was to be filed, the University
agreed to turn over the Agreement to the OIP.
The OIP reviewed the Agreement, and found that the Agreement contains
no information that would
qualify as a significant privacy interest, and that the Agreement
does not contain information that would not be discoverable in a
judicial or quasi-judicial action to which the University is or
may be a party. The OIP also found that disclosure of the Agreement
would not cause the frustration of a legitimate government function.
Regarding confidentiality agreements, the OIP found that a confidentiality
provision in a settlement
agreement that contravenes the agency's duty to the public is impermissible
under Hawaii law.
Addressing a critical issue raised in the case, the OIP found that
a government agency has a statutory
duty, under the UIPA, to provide the OIP with documents for examination
by the OIP for the purpose
of conducting inquiries regarding compliance with the UIPA by an
agency, and for the investigation of
possible violations by an agency.