Opinion Letter No. 09-01
August 7, 2009
Hawaii Humane Society as Agency; Animal Control Enforcement Records
OIP was asked whether the Hawaiian Humane Society
(HHS) properly denied a request for records pertaining to a woman
known as the “Cat Lady” and the animals in her possession
(the Cat Lady Investigation). OIP addressed two questions: 1) the
threshold question of whether HHS is an “agency” as
defined by the UIPA and therefore subject to its provisions; and
2) whether HHS must disclose records it maintains related to the
Cat Lady Investigation.
OIP had previously opined that HHS is an “agency”
subject to the UIPA “for the activities within the scope of
its agreement with the City, and its enforcement of State and county
laws enacted for the health, safety, and welfare of the public[.]”
OIP Op. Ltr. No. 90-31.
However, because the Hawaii Supreme Court recently
rejected the “totality of circumstances” balancing test
adopted by OIP to determine whether a hybrid public-private entity
falls within the definition of “agency” under the UIPA,
OIP, as a threshold matter, reconsidered its opinion in OIP Opinion
Letter Number 90-31 regarding HHS’ status as an “agency”
subject to the UIPA. See Olelo: The Corp. for Comm’ty Tel.
v. Office of Information Practices, 116 Haw. 337 (Haw. 2007).
Among other things, the court in Olelo instructed
that an entity is an “agency” under the UIPA if it substitutes
for government in the performance of a governmental function. Applying
this statutory interpretation, OIP opined that HHS is an “agency”
for the limited purpose of compliance with the UIPA when it provides
services directly related to its enforcement of state and county
laws concerning animal control. In so doing, HHS substitutes for
the City in the performance of a government function.
OIP therefore concluded that, in accordance with the
UIPA, HHS must disclose records maintained in the performance of
services directly related to its enforcement of animal control laws.
OIP found that HHS’ records related to the Cat
Lady Investigation are maintained by HHS as part of its enforcement
of state laws concerning the treatment of animals. Thus, HHS must
disclose those records except to the extent that they may be withheld
under a UIPA exception to disclosure.