FOREWORD

This edition contains revisions resulting primarily from the publication of opinion letters from the Hawaii Office of Information Practices through 2011.

Hawaii's initial Sunshine Law relating to public meetings and records was enacted in 1975 and is codified as chapter 92 of Hawaii Revised Statutes [Chapter 92, Sunshine Law].

In 1980, in response to the adoption of a constitutional right of privacy, Haw. Const. art. I, § 6 (adopted 1978), the Legislature enacted the Fair Information Practice Act (Confidentiality of Personal Records), Act 226, 10th Leg., Reg. Sess. (1980), reprinted in 1980 Haw. Sess. Laws at 378 [Privacy Act, Chapter 92E], which severely limited access to records. The Privacy Act substantially reduced access to government records by prohibiting access to records containing "confidential" information identifying any person whose privacy would be invaded. The Privacy Act's definition of a "public record" included records which were (1) the property of the state, the county, or a "board" (2) on which an entry was or had to be made and (3) which was or had to be received for filing.

Both the ambiguity of the confidentiality restrictions and the technical definition of "public record" in the Privacy Act led to widespread criticism of the law. In December 1987, a Governor- appointed task force issued a four-volume report containing public testimony on, analysis of, and recommendations regarding Hawaii's open records laws.

The report noted:

[T]he most criticized feature of the current law is that it simply is not a cohesive law. Chapters 92 and 92E in particular are in obvious conflict. These two laws were written at different times, for different purposes, and no real effort appears to have been made to properly link them together.

Report of the Governor's Ad Hoc Committee on Public Records and Privacy 17 (1987). The report discussed possible models for a new law, including the federal Freedom of Information Act [FOIA] and the Uniform Information Practices Code [Uniform Code]. The legislature chose to adopt the Uniform Code with modifications.

In 1988, Hawaii adopted the Uniform Information Practices Act [UIPA, Chapter 92F]. Act 262, 14th Leg., Reg. Sess. (1988), reprinted in 1988 Haw. Sess. Laws 473 (codified at Haw. Rev. Stat. ch. 92F (Supp. 1991)). The UIPA went into effect on July 1, 1989. Id. § 7, reprinted in 1988 Haw. Sess. Laws at 483. It replaced both the Sunshine Law's original provisions on public records, Haw. Rev. Stat. §§ 92-50 to 92-52, repealed by Act 262 § 3, 14th Leg., Reg. Sess. (1988), reprinted in 1988 Haw. Sess. Laws at 482, and the Privacy Act, id. ch. 92E, repealed by Act 262 § 4.

While it repealed the open records and privacy provisions of the Sunshine Law, the UIPA did not materially affect the public meetings portion of Hawaii's Sunshine Law. Neither did passage of the UIPA affect provisions in the Hawaii Administrative Procedure Act [HAPA] concerning public hearings and related procedures required for rulemaking by government agencies.

Section 92F-2 sets forth the UIPA's purpose:

In a democracy, the people are vested with the ultimate decision-making power. Governmental agencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore, the legislature declares that it is the policy of this State that the formation and conduct of public policy – the discussions, deliberations, decisions, and action of governmental agencies – shall be conducted as openly as possible.

Haw. Rev. Stat. § 92F-2 (1996).

The UIPA covers all records in the possession of any unit of government. It generally applies to the judiciary and legislature. See id. §§ 92F-3 (1996) (defining agency to exclude non-administrative functions of judiciary), 92F-13(5) (exempting drafts and notes of the legislature).

There are approximately 6,800 discrete units of state government that meet the UIPA's definition of "agency." Office of Information Practices [OIP], Records Report Training Guide 40 (1992) (on file with OIP). The UIPA's broad definition of "agency" affords access to many records of entities regulated by government or performing a government function. Whether non-governmental entities fit the UIPA's definition of "agency" is a matter decided on a case-by-case basis. The Sunshine Law, by way of contrast, applies to "boards," which include agencies, but defines such entities more narrowly than the UIPA. The result is that there may be some government agencies whose records are accessible under the UIPA but whose meetings under the Sunshine Law need not be.

Reducing confusion that arose under the Privacy Act's definition of "public record," the UIPA defines a "personal record" to be "any item, collection, or grouping of information about an individual that is maintained by an agency," making such records a type of government records. Haw. Rev. Stat. § 92F-3 (1996). The UIPA explicitly grants individuals the right to inspect and correct their own personal records. Id. §§ 92F-21 to 92F-28.

The UIPA's presumption of openness and accessibility replaced the broad exception under the former Privacy Act that allowed agencies to deny access to records because disclosure might invade an individual's personal privacy. Id. § 92F-11(a) ("All government records are open to public inspection unless access is restricted or closed by law."). Nevertheless, the UIPA preserves the Privacy Act's concern for privacy by acknowledging that "[t]he policy of conducting government business as openly as possible must be tempered by a recognition of the right of the people to privacy, as embodied in section 6 and section 7 of Article I" of the Hawaii Constitution. Id. § 92F-2. When constitutional concerns arise, Chapter 92F calls for a balancing of "the individual privacy interest and the public access interest . . . unless [access] would constitute a clearly unwarranted invasion of personal privacy." Id. § 92F-2(5).

The UIPA requires that certain categories of records be disclosed, regardless of privacy considerations or other grounds for exempting disclosure. Id. § 92F-12 (listing documents for which disclosure is required "[a]ny other provision in this chapter to the contrary notwithstanding"). Past disputes involved many of these listed categories of records.

The UIPA requires government agencies to promulgate rules and regulations to implement the law. Id. § 92F-18. Its passage also funded the Office of Information Practice, which is a division of the Lieutenant Governor's Office. Haw. Rev. Stat. § 92F-41 (Supp. 1999).

The UIPA requires the OIP to disseminate information on access. Haw. Rev. Stat. § 92F-42(11) (Supp. 1999). To facilitate dissemination of information on government records to the public, the OIP maintains a computerized database of the records reports received from state agencies. Id. § 92F-18(b) (requiring agencies to submit to OIP annual reports on records they maintain and on requests for access received). This allows public users of the state's computerized information network to access statistical information, including "the percentage of each agency's records that are public or confidential, the number of written record inquiries received by the agency, and the number granted or denied in the previous fiscal year." OIP, RRS to be Available on HAWAII FYI, OIP Openline (newsletter), July 1992, at 1.

Starting in 1994, the computerized catalog of Hawaii state and county government records has been available to the public. As of June 2010, more than 29,000 sets of records have been reported on the State Record Report System (RRS). OIP 2010 Annual Report. RRS provides information concerning which government records are open to public inspections and copying. Id. Beginning in October 2004, RRS has been available on the Internet via OIP's website. Id.

The UIPA empowers the OIP to issue public advisory guidelines to agencies and to issue formal and informal advisory opinions to agencies and the public. Haw. Rev. Stat. §§ 92F-42(2), (3) (Supp. 1999). OIP also provides answers to telephone inquiries. The majority of OIP formal advisory opinions were requested by government agencies or officials.

The OIP also issues unnumbered (informal) advisory opinion letters. OIP explains that it usually issues such letters when the period in which to answer a request for advice is necessarily so short as to preclude full legal research and/or when the request involves analysis that is directly duplicative of that already contained in previously issued formal opinion letters. Although it does not provide these unnumbered advisory opinion letters to the agencies and private parties on its regular mailing list (as it routinely does with its numbered advisory opinion letters), the OIP does make its unnumbered advisory opinion letters available upon request. Most unnumbered opinions contain personal information, which the OIP redacts before releasing copies.

The UIPA also authorizes the OIP to devise an administrative appeal system and to rule on such appeals. Id. §§ 92F-42(1), (12) (Supp. 1999); see also Haw. Rev. Stat. §§ 92F-15.5 and 92F-27.5 (Supp. 1999). The OIP's rulings in such cases are "optional and without prejudice to rights of judicial enforcement." Haw. Rev. Stat. § 92F-42(1). The OIP has drafted the rules for the appeal process.  See Haw. Admin. R. tit. 2, ch. 71.  OIP has previously advanced the position that its opinion that a record must be disclosed – as opposed to an opinion that disclosure of a record is not required – is not subject to appeal by the agency having custody of the record.  The reasoning is that the right to judicial enforcement of the UIPA is statutorily limited to a “person aggrieved by a denial of access to a government record.”  Haw. Rev. Stat. § 92F-15(a). When records covered by the Sunshine Law are concerned (e.g., minutes of government board meetings), however, the Intermediate Court of Appeals has held that the agency may initiate an original action under the Sunshine Law for the determination of whether such records must be disclosed.  See Haw. Rev. Stat. § 92-12(c); County of Kaua‘i v. OIP, 120 Hawai‘i 34,43, 200 P.3d 403, 412 (2009).

OIP’s determinations as to the applicability of the UIPA, such as the definition of “agency” or “government record,” are not given deference on appeal, but rather, are reviewed de novo‘Olelo: The Corporation For Community Television v. OIP, 116 Hawai‘i 337, 346, 173 P.3d 484, 493 (2007).

Members of the public can appeal directly to the state's circuit courts any time a government agency denies them a request for information held by the particular government agency. Haw. Rev. Stat. § 92F-15 (1996). The access provisions of the UIPA were upheld in Burnham Broad. Co. v. County of Hawaii, Civ. No. 92-0161 (Haw. 3d Cir. Mar. 1992). The case involved the refusal by a county agency, the police department, to release to media organizations records pertaining to the agency's allegedly deficient response to 911 calls connected to a widely publicized Christmas Eve rape and murder. Id. The county not only lost the lawsuit, but also ended up paying the court costs and attorneys' fees that the media plaintiffs' had incurred in their efforts to secure access to the tapes and transcripts. OIP, The Cost of Denying Public Access, OIP Openline (newsletter), May 1992, at 2.

Contrast this with the remedies available for violation of the Open Meetings law. In the case of wrongful denial of public access to meetings of government agencies, the sanction is to render null and void any decisions reached in such meetings.  Haw. Rev. Stat. § 92-11.  Under the Sunshine Law, parties denied access to government meetings can file suit in the state circuit courts to obtain an injunction "or other appropriate remedy."  Id. § 92-12 (1996). The court can order payment of reasonable attorney fees and costs. Id. § 92-12(c). Willful violation of the Sunshine Law by a government official constitutes a misdemeanor as well as grounds for removal from the "board." Id. § 92-13.

The OIP, through its interpretations of the UIPA and its efforts to disseminate information about the law, particularly to agencies, has been a constructive influence moderating tensions between agencies and the public over access issues.

Nevertheless, problems regarding access still exist, and litigation over the provisions of UIPA as well as other access laws has resulted. For example, in 1996, the Hawaii Supreme Court required the public disclosure of information concerning employment-related disciplinary actions involving police officers, as required by the UIPA; and a federal district court invalidated a state statute limiting access to voter registration records. These cases, among others, demonstrate the necessity of continued vigilance to unlocking government secrets.

Jeffrey S. Portnoy and Elijah Yip are partners at Cades Schutte LLP.