Opinion Letter No. 07-11
September 25, 2007
Applications for Permits to Enter Marine Refuge
The Department of Land and Natural Resources (DLNR)
requested OIP for an opinion regarding public disclosure of the
permit applications for entry and activity in the Northwestern Hawaiian
Islands Refuge (Applications), as well as related records.
OIP opined that the Applications must generally be disclosed upon
request, but DLNR may withhold certain limited information. First,
under the UIPA's privacy exception, DLNR may withhold personal information,
such as personal contact information and social security numbers,
which sheds no light on an application's consideration by its board
(BLNR). Unless and until DLNR submits an Application to BLNR for
approval at a meeting, DLNR may also withhold from an Application
before requested disclosure: medical history information, personal
financial information, and personal details relating to proposed
cultural activities. Once BLNR gives public notice on its agenda
that it will be considering an Application at a public meeting,
these types of information must be disclosed to the extent that
they are relevant to BLNR's consideration of the Application and,
thus, will likely be discussed at its public meeting.
DLNR may also withhold information that it finds to
be confidential commercial or financial information or proprietary
information because such information is exempt from public disclosure
under the UIPA's "frustration of a legitimate government function"
exception. In addition, under the "frustration" exception, DLNR
is also not required to disclose recommendations and comments DLNR
receives from staff and outside experts as well as its recommendations
to BLNR that are predecisional and deliberative in nature, unless
BLNR waives this exemption by publicly disclosing these records,
or specifically referring to or incorporating them in its decision.