Peer News LLC v. City of Honolulu & Dep't of Budget & Fiscal Servs.

***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
21-DEC-2018
08:12 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
PEER NEWS LLC, dba CIVIL BEAT,
Plaintiff-Appellant,
vs.
CITY AND COUNTY OF HONOLULU and
DEPARTMENT OF BUDGET AND FISCAL SERVICES,
Defendants-Appellees.
SCAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-XX-XXXXXXX; CIV. NO. 15-1-0891-05)
DECEMBER 21, 2018
McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J.,
DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY POLLACK, J.
Hawai‘i law has long stated that “[o]pening up the
government processes to public scrutiny and participation is the
only viable and reasonable method of protecting the public’s
interest.” Hawaii Revised Statutes § 92F-2 (2012). Therefore,
in establishing the legal framework governing public access to
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
government records, the Hawai‘i legislature declared “that it is
the policy of this State that the formation and conduct of
public policy--the discussions, deliberations, decisions, and
action of government agencies--shall be conducted as openly as
possible.” Id.
This case concerns the propriety of State and local
agencies withholding certain inter- and intra-office
communications when disclosure is formally requested by a member
of the public. In a series of eight opinion letters issued
between 1989 and 2007, the State of Hawaii Office of Information
Practices took the position that, based on a statutory exception
provided in Hawai‘i’s public record law that permits the
nondisclosure of records that would frustrate a legitimate
government function if revealed, a “deliberative process
privilege” exists that protects all pre-decisional, deliberative
agency records without regard for the relative harm that would
result from any specific disclosure. Relying on these opinion
letters, the Office of Budget and Financial Services for the
City and County of Honolulu denied a public records request for
certain internal documents generated during the setting of the
City and County’s annual operating budget.
We hold that, because the deliberative process
privilege attempts to uniformly shield records from disclosure
without an individualized determination that disclosure would
2
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
frustrate a legitimate government function, it is clearly
irreconcilable with the plain language and legislative history
of Hawai‘i’s public record laws. The Office of Information
Practices therefore palpably erred in interpreting the statutory
exception to create this sweeping privilege. Accordingly, we
vacate the grant of summary judgment in this case and remand for
a redetermination of whether the records withheld pursuant to
the purported privilege fall within a statutory exception to the
disclosure requirement.
I. BACKGROUND AND PROCEDURAL HISTORY
A. Developing Honolulu’s Operating Budget
Each year, the City and County of Honolulu (City) sets
its annual operating budget through a series of exchanges
between its various departments and branches. The process
begins with the Mayor providing a list of intended policies and
priorities for the coming fiscal year to the Department of
Budget and Fiscal Services (BFS). BFS in turn sends a notice
detailing the Mayor’s policies and priorities to the directors
of the departments that make up the City’s executive branch
(with limited exceptions1), soliciting an operating budget
request from each department. Thereafter, the departments each
1
Pursuant to Sections 7-106(i) and 17-103(2)(f) of the Revised
Charter of the City and County of Honolulu, the Board of Water Supply and the
Honolulu Rapid Transit Authority prepare their own operating budgets.
3
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
prepare and submit a formal memorandum to BFS justifying all
proposed expenditures for the coming fiscal year in relation to
the Mayor’s policies and priorities, thus providing an initial
recommendation regarding the money to be allocated to the
department. Those departments that generate revenue also
provide preliminary projections outlining the funds they expect
to take in, thereby giving BFS an estimate of the City’s
expected revenues and expenditures for the coming fiscal year.
During the months following BFS’s receipt of the
operating budget request, various parties from BFS engage with
the requesting agencies and the office of the City’s Managing
Director in a series of discussions regarding each department’s
proposed budget, revising the request as needed to account for
budgetary considerations and changes in the Mayor’s policies and
priorities. The budget request is eventually submitted to the
Mayor, who may make further adjustments based on additional
discussions with the BFS Director and Managing Director. Once
the Mayor makes final decisions regarding each department’s
budget, BFS produces a combined executive budget for submission
to the City Council. After a public hearing, the City Council
revises the executive budget as it deems appropriate before
formally adopting it, at which point it is presented to the
Mayor to be signed or vetoed in the same manner as other
4
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
legislation. See Revised Charter of the City and County of
Honolulu § 9-104 (1998).
B. Civil Beat’s Request
On March 5, 2015, Nick Grube, a reporter for the
online news outlet Peer News LLC d/b/a Civil Beat (Civil Beat),
sent an email to BFS requesting access to or copies of the
“narrative budget memo for Fiscal Year 2016” for each of the
City’s departments. Grube stated in his email that the request
was made pursuant to the Hawaii public records law.2
On March 13, 2015, BFS sent a notice to Grube
acknowledging his request and informing him that the agency was
invoking the “extenuating circumstances” exception contained in
the Hawaii Administrative Rules (HAR) to extend its time limit
for responding.3 Then, on April 7, 2015, BFS provided Grube with
2
Although Grube did not further identify the legal authority for
his request, the disclosure of government records in Hawai‘i is broadly
governed by the Uniform Information Practices Act, which is codified in
Hawaii Revised Statutes Chapter 92F. HRS § 92F-11 (2012), which sets forth
an agency’s affirmative disclosure obligations, provides in relevant part as
follows:
(a) All government records are open to public inspection
unless access is restricted or closed by law.
(b) Except as provided in section 92F-13, each agency upon
request by any person shall make government records
available for inspection and copying during regular
business hours.
3
With some exceptions, HAR § 2-71-13(b) (1999) requires an agency
to provide notice of whether it intends to withhold or disclose a record
within ten business days of receiving a formal public records request and,
when appropriate, to disclose the document within five business days
thereafter. HAR §§ 2-71-13(c) and 2-71-15 (1999) allow an agency to extend
(continued . . .)
5
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
a second notice, this time denying his request in its entirety,
stating that the legitimate government function of agency
decision-making would be frustrated by disclosure of the
requested records.4
In a memorandum attached to the second notice, BFS
cited a series of opinion letters from the State of Hawai‘i
Office of Information Practices (OIP) interpreting the provision
of the Hawai‘i Uniform Information and Practices Act (UIPA)
codified in Hawaii Revised Statutes (HRS) § 92F-13(3) (2012),
which exempts documents from disclosure when disclosure would
frustrate a legitimate government function.5 The memorandum
stated that HRS § 92F-13(3) creates a “deliberative process
(. . . continued)
the period to twenty business days for providing notice of its intent when
extenuating circumstances apply. In its form notice to Grube, BFS checked
the boxes indicating that extenuating circumstances were present because
Grube’s request required “extensive agency efforts to search, review, or
segregate the records, or otherwise prepare the records for inspection or
copying” and that the agency needed additional time “to avoid an unreasonable
interference with its other statutory duties and functions.”
4
BFS or Grube could have requested that the State of Hawai‘i Office
of Information Practices review the record request pursuant to Hawaii Revised
Statutes §§ 92F-15.5(a) or 92F-42(1)-(2) (2012), but neither party elected to
do so.
5
HRS § 92F-13 (2012) provides in relevant part as follows:
This part shall not require disclosure of:
. . . .
(3) Government records that, by their nature, must be
confidential in order for the government to avoid the
frustration of a legitimate government function[.]
6
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
privilege” that shields government records from disclosure when
they are pre-decisional and deliberative in nature. (Citing OIP
Op. Ltr. No. 00-01 (Apr. 12, 2000); OIP Op. Ltr. No. 90-8 (Feb.
12, 1990).) Under the privilege, BFS stated, agencies are not
required to disclose “‘recommendations, draft documents,
proposals, suggestions, and other subjective documents’ that
comprise part of the process by which the government formulates
decisions and policies.” (Quoting OIP Op. Ltr. No. 04-15 at 4
(Aug. 30, 2004).)
Construing Grube’s request to refer to the operating
budget memoranda from each of the City’s departments, BFS argued
that disclosure of these documents would have a chilling effect
that would lower the quality of the information provided to BFS
and consequently impair its decision-making. The requests were
thus the precise sort of records the deliberative process
privilege created by HRS § 92F-13(3) was intended to exempt from
disclosure, BFS concluded.
On April 13, 2015, Civil Beat submitted a letter from
its counsel encouraging BFS to favor public access, waive any
concerns about the frustration of government functions, and
produce the records in the interest of transparency. On April
30, 2015, BFS provided Civil Beat with a third notice revising
7
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
its denial to allow partial disclosure of the requested
information.6 The revised notice stated that BFS still intended
to withhold the proposed budget amounts and those budget
justifications that involved “safety inspections, staffing,
training and equipment.”7
C. Circuit Court Proceedings
On May 8, 2015, Civil Beat filed a two-count complaint
against the City and BFS in the Circuit Court of the First Court
(circuit court) seeking declaratory and injunctive relief.8
Count I of the complaint sought an order declaring that the OIP
precedent adopting the deliberative process privilege was
palpably erroneous, as well as an order enjoining the City and
BFS from invoking the purported privilege to deny public access
6
The City and BFS have at various stages of this case
characterized this notice as a waiver of the deliberative process privilege
with respect to the portions of the requested records BFS intended to
disclose. During oral argument before this court, however, counsel for the
City and BFS stated that BFS determined these portions of the records were
not protected by the privilege, making a waiver unnecessary. Oral Argument
at 00:49:20-58, Peer News LLC v. City & Cty. of Honolulu (No. SCAP-16-114),
http://oaoa.hawaii.gov/jud/oa/17/SCOA_060117_SCAP_16_114.mp3.
7
Additionally, BFS stated that it intended to withhold information
regarding specific staff salaries pursuant to HRS § 92F-13(1), which provides
as follows: “This part shall not require disclosure of . . . (1) Government
records which, if disclosed, would constitute a clearly unwarranted invasion
of personal privacy.” HRS § 92F-14(b)(6) (2012) elaborates, “The following
are examples of information in which the individual has a significant privacy
interest: . . . (6) Information describing an individual’s finances, income,
assets, liabilities, net worth, bank balances, financial history or
activities, or creditworthiness.” Civil Beat does not challenge BFS’s right
to withhold this information, and we therefore do not address the matter
further.
8
The Honorable Virginia L. Crandall presided.
8
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
to governmental records. Count II sought access to copies of
the departmental budget memoranda identified in Civil Beat’s
March 5, 2015 request, subject to the redaction of specific
salaries.
The City and BFS filed a joint answer on June 1, 2015,9
and then filed two joint motions for partial summary judgment on
October 19, 2015--one for each count in Civil Beat’s complaint.
Civil Beat responded by filing two combined opposition/cross-
motions for summary judgment on November 13, 2015.
In its oppositions/cross-motions,10 Civil Beat asserted
that a broad deliberative process privilege would contradict the
legislature’s plainly stated intent that, under the UIPA, agency
“deliberations . . . shall be conducted as openly as possible.”
(Quoting HRS § 92F-2 (2012).) Civil Beat further contended that
the UIPA’s legislative history indicates that the legislature
made a purposeful decision not to adopt a deliberative process
privilege, which at the time of the UIPA’s enactment was
9
The City and BFS initially filed a third-party complaint against
OIP, arguing that any declaratory relief or litigation expenses that Civil
Beat was entitled to should be granted against OIP and not the City or BFS.
OIP answered arguing, inter alia, that it had never issued any opinion
regarding the records at issue in this case and that it was not responsible
for the City or BFS’s application of its precedents. On July 23, 2015, the
City, BFS, and OIP stipulated to the dismissal without prejudice of the
third-party complaint against OIP, which the circuit court approved and
ordered.
10
Civil Beat first presented the arguments contained in its
oppositions/cross-motions in a prior motion for summary judgment, which was
denied.
9
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
codified in both federal law and the model statute upon which
the UIPA was based.
Even assuming that the UIPA contains a deliberative
process privilege, Civil Beat continued, the exception should be
read narrowly to require weighing the public’s interest in
disclosure against the government’s need for secrecy. The
privilege should also apply only to documents containing the
personal opinions of agency staff, Civil Beat argued, and it
should last only as long as the agency decision to which the
records pertain remains pending. Here, the public’s interest in
the disclosure of the budget requests outweighed the City’s need
for secrecy, Civil Beat contended, arguing that the documents
reflected the policy of the various departments rather than the
personal opinions of individual staff and that the Mayor’s
executive budget had already been finalized and publicly
released. The budget requests would therefore not be covered by
a deliberative process privilege even if such a privilege
existed, Civil Beat concluded.
By contrast, the City and BFS argued that the UIPA’s
legislative history does not show that the legislature intended
to omit the deliberative process privilege, but rather to
mindfully incorporate it into the broader “frustration of a
legitimate government function” exception. Furthermore, they
continued, because the privilege originated under the federal
10
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
common law, it is alternately supported by HRS § 92F-13(4),
which shields “[g]overnment records which, pursuant to state or
federal law including an order of any state or federal court,
are protected from disclosure.”11
On December 3, 2015, following a hearing on all four
motions, the circuit court orally ruled in favor of the City and
BFS on all issues. The court first found that the OIP opinions
adopting the deliberative process privilege were not palpably
erroneous because they were not clearly contrary to the
legislative intent of HRS § 92F-13(3). The court further found
that the requested budget memoranda were pre-decisional,
deliberative documents prepared as part of the budget-setting
process and were thus covered by the deliberative process
privilege. On January 13, 2016, the circuit court entered
written orders granting the City and BFS’s motions, and final
judgment was entered on February 5, 2016. Civil Beat filed a
timely notice of appeal.
D. ICA Proceedings and Transfer
Before the ICA, Civil Beat raised three points of
error:
11
The State of Hawaii was granted leave to participate as amicus
curiae and filed a brief supporting the City’s stance that a deliberative
process privilege exists under the UIPA. The State took no position,
however, as to whether the City properly applied the privilege when it
withheld access to the requested records in the present case.
11
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
1. Whether OIP and the circuit court erred in recognizing a
deliberative process privilege, and thus a presumption of
secrecy for records of government deliberations . . . .
2. Whether the circuit court erred in applying the
deliberative process privilege standard to bar disclosure
of the requested departmental budget memoranda, without
weighing the public interest in disclosure of government
financial information, the lack of harm to the privilege’s
core concern for personal opinions of vulnerable employees,
or the passage of time. . . .
3. Whether the circuit court erred when it held that the
requested departmental budget memoranda “are protected by
the deliberative process privilege” – allowing the City to
entirely withhold the memoranda – even though the court
acknowledged that purely factual information within a
privileged record is not protected and the City conceded
that portions of the requested records contained purely
factual information.[12]
On September 9, 2016, Civil Beat applied for transfer
to this court, arguing that the case presents novel legal issues
and questions of fundamental public importance. This court
granted Civil Beat’s application for transfer on October 12,
2016.
II. STANDARDS OF REVIEW
The legislature has directed that OIP’s opinions be
considered as precedent in a UIPA enforcement action such as
12
In their answering brief, the City and BFS argue that these
points of error are a “gross mischaracterization” of the arguments made below
and urge the court to instead accept their alternate points of error. As
discussed, Civil Beat argued in its cross-motion for summary judgment in
Count II that the circuit court should consider the public’s interest in
disclosure when determining whether the operating budget requests were
protected by the privilege. Civil Beat also contended that OIP’s adoption of
the deliberative process privilege effectively created a presumption that all
agency deliberations are confidential. We therefore hold that all of Civil
Beat’s points of error were properly preserved, and we consider them
accordingly.
12
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
this so long as they are not “palpably erroneous.” HRS § 92F-
15(b) (2012 & Supp. 2017).
This court reviews a grant or denial of summary
judgment de novo. Querubin v. Thronas, 107 Hawai‘i 48, 56, 109
P.3d 689, 697 (2005).
III. DISCUSSION
Although OIP has opined for nearly thirty years that a
deliberative process privilege exempts certain inter- and intra-
agency documents from the UIPA’s disclosure requirements, see,
e.g., OIP Op. Ltr. No. 89-9 (Nov. 20, 1989); OIP Op. Ltr. No.
F19-01 (Oct. 11, 2018), this court has not heretofore had an
opportunity to consider the propriety of this interpretation.
We first consider the privilege in relation to the plain
language of the UIPA before turning to the UIPA’s legislative
history for indications of the legislature’s intent regarding
the public disclosure of deliberative agency records.
A. The Language of the UIPA
As we have often stated, “the fundamental starting
point for statutory interpretation is the language of the
statute itself.” State v. Wheeler, 121 Hawai‘i 383, 390, 219
P.3d 1170, 1177 (2009) (quoting Citizens Against Reckless Dev.
v. Zoning Bd. of Appeals of City & Cty. of Honolulu (CARD), 114
Hawai‘i 184, 193, 159 P.3d 143, 152 (2007)). “[W]here the
statutory language is plain and unambiguous, our sole duty is to
13
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
give effect to its plain and obvious meaning.” Id. (quoting
CARD, 114 Hawai‘i at 193, 159 P.3d at 152).
In adopting the deliberative process privilege, OIP
relied upon HRS § 92F-13(3), which shields from disclosure those
“[g]overnment records that, by their nature, must be
confidential in order for the government to avoid the
frustration of a legitimate government function.” The
unambiguous meaning of this provision is that, to fall within
its parameters, a record must be of such a nature that
disclosure would impair the government’s ability to fulfil its
proper duties. But the deliberative process privilege as
formulated by OIP gives no direct consideration to whether a
particular disclosure would negatively impact a legitimate
government function. Instead, a record is shielded by the
privilege anytime it is “pre-decisional” and “deliberative.”
OIP Op. Ltr. No. 90-3 at 12 (Jan. 18, 1990) (explaining that a
communication is protected by the privilege if it is made prior
to an agency decision and “makes recommendations or expresses
opinions on . . . policy matters” (quoting Vaughn v. Rosen, 523
F.2d 1136, 1143-44 (D.C. Cir. 1975)).
The City and BFS argue that all pre-decisional,
deliberative records would frustrate a legitimate government
function if disclosed. Administrators faced with the
possibility that their remarks will be publicly disseminated are
14
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
less likely to offer frank and uninhibited opinions for fear of
public criticism or ridicule, they argue, and inhibiting the
free exchange of ideas will in turn diminish the quality of
agency decision-making. Thus, a determination that a record is
pre-decisional and deliberative is functionally equivalent to a
finding that disclosure of the record would impair a legitimate
government function, the City and BFS appear to conclude.
But the UIPA itself makes clear that these generalized
concerns alone are not sufficient to constitute frustration of a
legitimate government function within the meaning of the
statute. HRS § 92F-2, which sets forth the legislature’s
purposes in enacting the UIPA and provides principles for
interpreting the law, states in relevant part the following:
In a democracy, the people are vested with the ultimate
decision-making power. Government agencies exist to aid
the people in the formation and conduct of public policy.
Opening up the government 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
government agencies--shall be conducted as openly as
possible.
(Emphases added.) The statute goes on to provide that the UIPA
“shall be applied and construed to promote its underlying
purposes and policies,” including, inter alia, to “[p]romote the
public interest in disclosure” and “[e]nhance governmental
accountability through a general policy of access to government
records.”
15
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Insofar as a tradeoff exists between inhibiting the
frank exchange of ideas and ensuring agency accountability
through public oversight, HRS § 92F-2 clearly expresses a policy
preference in favor of “[o]pening up the government processes to
public scrutiny.” The list of the UIPA’s underlying purposes
and policies, which was provided to guide our interpretation,
repeatedly emphasizes that ensuring government accountability
through public access and disclosure was among the legislature’s
top priorities in enacting the statute.13 Moreover, the law
expressly states that “the formation . . . of public policy,”
including “discussions” and “deliberations,” “shall be conducted
as openly as possible.” HRS § 92F-2.
As the City and BFS readily admit, the deliberative
process privilege is specifically designed to protect from
public scrutiny “documents reflecting advisory opinions,
recommendations[,] and deliberations comprising part of a
process by which government decisions and policies are
formulated”--the precise opposite of the policy HRS § 92F-2
explicitly declares the UIPA should be interpreted to promote.
(Emphasis added) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S.
13
The only countervailing consideration included in the rules of
construction is the personal privacy of individuals. See HRS § 92F-2(5)
(stating the UIPA should be interpreted to “[b]alance the individual privacy
interest and the public access interest, allowing access unless it would
constitute a clearly unwarranted invasion of personal privacy”).
16
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
132, 150 (1975)). Indeed, adopting the City and BFS’s argued
interpretation would render much of HRS § 92F-2 a dead letter,
for one is hard pressed to imagine “deliberations” or
“discussions” constituting the “formation . . . of government
policy” that are not pre-decisional and deliberative.14 Such a
result would be contrary to the “cardinal rule of statutory
construction that courts are bound, if rational and practicable,
to give effect to all parts of a statute.” Coon v. City & Cty.
of Honolulu, 98 Hawai‘i 233, 259, 47 P.3d 348, 374 (2002)
(quoting Franks v. City & Cty. of Honolulu, 74 Haw. 328, 339,
843 P.2d 668, 673 (1993)). As this court has long held, “no
clause, sentence, or word shall be construed as superfluous,
void, or insignificant if a construction can be legitimately
found which will give force to and preserve all words of the
statute.” Id. (quoting Franks, 74 Haw. at 339, 843 P.2d at
673).
14
Communications between decision-makers and their subordinates
regarding adopting available courses of action prior to the making of a
decision is the very definition of deliberations in common usage, case law,
and the OIP’s own precedents. See Deliberation, Black’s Law Dictionary (10th
ed. 2014) (“The act of carefully considering issues and options before making
a decision or taking an action[.]”); Abramyan v. U.S. Dep't of Homeland Sec.,
6 F. Supp. 3d 57, 64 (D.D.C. 2013) (“A record is deliberative if ‘it reflects
the give-and-take of the consultative process.’” (emphasis added) (quoting
Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006)); OIP Op.
Ltr. No. 90-3 at 12 (explaining that a document is deliberative when it
“makes recommendations or expresses opinions on . . . policy matters”).
Thus, the City and BFS’s analysis effectively reads out of HRS § 92F-2 the
express “policy of this State that the formation and conduct of public
policy--the discussions, deliberations . . . of government agencies--shall be
conducted as openly as possible.”
17
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
In light of the policy statement and rules of
construction contained in HRS § 92F-2, the disclosure of pre-
decisional, deliberative records cannot be said to inherently
frustrate a legitimate government function within the meaning of
the UIPA.15 Thus, because the deliberative process privilege
15
This is not to say that certain types of deliberative
communications will not qualify for withholding when the government can
identify a concrete connection between disclosure and frustration of a
particular legitimate government function. For instance, if disclosed prior
to a final agency decision, many pre-decisional draft documents may impair
specific agency or administrative processes in addition to inhibiting agency
personnel from expressing candid opinions. However, an agency must clearly
describe what will be frustrated by disclosure and provide more specificity
about the impeded process than simply “decision making.” See infra Section
III.D.
Additionally, writings that are truly preliminary in nature, such
as personal notes and rough drafts of memorandum that have not been finalized
for circulation within or among the agencies, may not qualify as government
records for purposes of an agency’s disclosure obligations. See OIP Op. Ltr.
No. 04-17 (Oct. 27, 2004) (“[W]e find, in line with the number of other state
and federal courts that have similarly construed other open records laws,
that the determination of whether or not a record is a ‘government record’
under the UIPA or a personal record of an official depends on the totality of
circumstances surrounding its creation, maintenance and use. . . . [C]ourts
have distinguished personal papers. . . from public records where they ‘are
generally created solely for the individual’s convenience or to refresh the
writer’s memory, are maintained in a way indicating a private purpose, are
not circulated or intended for distribution within agency channels, are not
under agency control, and may be discarded at the writer's sole discretion.’”
(internal citations omitted)(quoting Yacobellis v. Bellingham, 780 P.2d 272,
275 (Wash. App. 1989)); Shevin v. Byron, Harless, Schaffer, Reid & Assocs.,
Inc., 379 So. 2d 633, 640 (Fla. 1980) (“To be contrasted with ‘public records’
are materials prepared as drafts or notes, which constitute mere precursors
of governmental ‘records’ and are not, in themselves, intended as final
evidence of the knowledge to be recorded . . . . [unless] they supply the
final evidence of knowledge obtained in connection with the transaction of
official business.”); cf. Conn. Gen. Stat. § 1-210(e)(1) (2018)
(“[D]isclosure shall be required of: . . . [i]nteragency or intra-agency
memoranda or letters, advisory opinions, recommendations or any report
comprising part of the process by which governmental decisions and policies
are formulated, except disclosure shall not be required of a preliminary
draft of a memorandum, prepared by a member of the staff of a public agency,
which is subject to revision prior to submission to or discussion among the
members of such agency.”).
(continued . . .)
18
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
attempts to uniformly shield records from disclosure without a
determination that disclosure would frustrate a legitimate
government function, it is inconsistent with the plain language
of HRS § 92F-13(3).
B. The Legislative History of the UIPA
A review of the UIPA’s legislative history confirms
that HRS § 92F-13(3) was not intended to create a blanket
privilege for deliberative documents.
Prior to 1988, public access to government records in
Hawai‘i was governed by two primary statutes that were often in
tension, as well as a wide range of other statutes concerning
access to specific records. See 1 Report of the Governor’s
Committee on Public Records and Privacy apps. B-D (1987)
(setting forth statutes governing disclosure of government
records) (hereinafter Governor’s Report). Hawai‘i’s “Sunshine
Law,” codified in HRS Chapter 92, contained a broad disclosure
mandate. The law stated that “[a]ll public records shall be
available for inspection by any person” with limited exceptions
for documents related to litigation, certain records that would
(. . . continued)
It is also noted that, when there is a true concern that
disclosure of deliberative communications may expose specific individuals to
negative consequences, the individuals’ identities may potentially qualify
for withholding pursuant to HRS § 92F-13(1) if their privacy interests
outweigh the public’s interest in disclosure.
19
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
damage the “character or reputation of any person,” and specific
records for which state or federal law provided otherwise. HRS
§ 92-51 (1985). Hawai‘i’s Fair Information Practice law, on the
other hand, contained a broad prohibition on the disclosure of
“personal records,” which were expansively defined to include
“any item, collection, or grouping of information about an
individual that is maintained by an agency.” HRS § 92E-1
(1985); see also HRS § 92E-4 (1985).
The tension between HRS Chapters 92 and 92E, which
were “written at different times for different purposes and
without regard for each other,” created substantial conflict and
uncertainty, leading Governor John Waihee to convene an Ad Hoc
Committee on Public Records and Privacy Laws in 1987 to consider
possibilities for reform. Governor’s Report at 2-3. After
receiving public comment and holding a series of public
hearings, the Committee produced a four-volume Governor’s Report
that comprehensively detailed the competing interests implicated
on a wide range of related issues in order to provide a factual
foundation for sound policy making. Id. at 5.
In its chapter on “Current Issues and Problems,” the
Governor’s Report contained a section entitled “Internal
Government Processes.” Id. at 101. The Report described the
internal processes of government as “[o]ne of the areas of
greatest tension in any review of public records law,” noting
20
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
the conflict between ensuring government accountability and
permitting agencies to freely communicate internally. Id.
While discussing the differing interests at stake in the
disclosure of internal agency correspondence and memoranda, the
Governor’s Report noted that, based on testimony from the
Honolulu Managing Director, “[t]hese materials are not currently
viewed as public records by government officials under Chapter
92, HRS, though there are records which the courts have opened
up on an individual basis.” Id.
However, a review of applicable statutes and caselaw
makes clear that this view was inaccurate. Under HRS Chapter
92, public records were expansively defined to include
essentially all written materials created or received by an
agency, save only those “records which invade the right of
privacy of an individual.” HRS § 92-50 (1985) (“As used in this
part, ‘public record’ means any written or printed report, book,
or paper . . . of the State or of a county . . . in or on which
an entry has been made . . . or which any public officer or
employee has received . . . .” (emphases added)).16 The
definition did not exclude deliberative communications, nor were
16
The dissent’s attempted narrowing of HRS § 92-50’s parameters,
Dissent at 22 n.3, is contrary to the plain text of the statute.
21
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
such public records excluded from the broad disclosure mandate
contained in HRS § 92-51.
Thus, prior to the enactment of the UIPA,
deliberative, pre-decisional agency records were open to public
inspection under the plain language of HRS Chapter 92. It is
therefore unsurprising that both available court decisions on
the subject resulted in an order that the government agency
disclose the deliberative materials sought. See Pauoa-Pacific
Heights Cmty. Grp. v. Bldg. Dep’t, 79 HLR 790543, 790556 (Jan.
9, 1980) (ordering disclosure of “building applications,
building plans, specifications, supporting documentation and
inter and intra office memorandum, reports and recommendations
requested by Plaintiffs” (emphasis added)); Honolulu Advertiser,
Inc. v. Yuen, 79 HLR 790117, 790120, 790128 (Oct. 10, 1979)
(ordering the release of “all interoffice and intraoffice
memorandum, memos to file, or telephone logs pertaining to the
Mililani Sewage Treatment Plant”).17
17
In the order issued in Yuen, the court initially stated that “the
state of Hawaii has no discretion to withhold the requested records contained
in its files from the public unless the records requested are specifically
exempted from public inspection by constitution, statute, regulation, court
rule, or common law privilege.” Yuen, 79 HLR at 790128. Prior to filing its
order, however, the court crossed out “or common law privilege,” appearing to
specifically reject upon further consideration any argument that the
government could rely upon common law principles like the deliberative
process privilege to resist its statutory disclosure obligations. See id.
22
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Spurred by the release of the Governor’s Report,
legislators in the Hawai‘i House of Representatives in 1988
introduced the bill that would become the UIPA, largely basing
the law on the Model Uniform Information Practices Code (MUIPC)
that had been promulgated in 1980 by the National Conference of
Commissioners on Uniform State Laws. H. Stand. Comm. Rep. No.
342-88, in 1988 House Journal, at 972. As adopted by the House,
the bill incorporated twelve exceptions to disclosure derived
from Section 2-103 of the MUIPC, including an exemption for
deliberative agency records:
§ -13 Information not subject to duty of disclosure. (a)
This chapter shall not require disclosure of:
(1) Information compiled for law enforcement
purposes, including victim or witness assistance
program files, if the disclosure would:
(A) Materially impair the effectiveness of an
ongoing investigation, criminal intelligence
operation, or law enforcement proceeding;
(B) Identify a confidential informant;
(C) Reveal confidential investigative
techniques or procedures, including criminal
intelligence activity; or
(D) Endanger the life of an individual;
(2) Inter-agency or intra-agency advisory,
consultative, or deliberative material other than
factual information if:
(A) Communicated for the purpose of decision-
making;
and
(B) Disclosure would substantially inhibit the
flow of communications within an agency or
impair an agency’s decision-making processes[.]
(3) Material prepared in anticipation of litigation
which would not be available to a party in litigation
23
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
with the agency under the rules of pretrial discovery
for actions in a circuit court of this State;
(4) Materials used to administer a licensing,
employment, or academic examination if disclosure
would compromise the fairness or objectivity of the
examination process;
(5) Information which, if disclosed, would frustrate
government procurement or give an advantage to any
person proposing to enter into a contract or
agreement with an agency including information
involved in the collective bargaining process
provided that a roster of employees shall be open to
inspection by any organization which is allowed to
challenge existing employee representation;
(6) Information identifying real property under
consideration for public acquisition before
acquisition of rights to the property; or information
not otherwise available under the law of this State
pertaining to real property under consideration for
public acquisition before making a purchase
agreement;
(7) Administrative or technical information,
including software, operating protocols, employee
manuals, or other information, the disclosure of
which would jeopardize the security of a record-
keeping system;
(8) Proprietary information, including computer
programs and software and other types of information
manufactured or marketed by persons under exclusive
legal right, owned by the agency or entrusted to it;
(9) Trade secrets or confidential commercial and
financial information obtained, upon request, from a
person;
(10) Library, archival, or museum material
contributed by private persons to the extent of any
lawful limitation imposed on the material;
(11) Information that is expressly made
nondisclosable or confidential under federal or state
law or protected by the rules of evidence.
(12) An individually identifiable record not
disclosable under part III.
H.B. 2002, 14th Leg., Reg. Sess., § 1 at 8-10 (1988) (emphasis
added).
24
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
During consideration by the Senate, the Senate
Government Operations Committee heard testimony from a number of
parties critical of the exemption for inter-agency or intra-
agency advisory, consultative, or deliberative material. The
witnesses argued that the exemption would close many agency
records that were open to the public under then-existing law.
The Chairman of the non-profit government watchdog group Common
Cause Hawai‘i, for example, testified that the exemption
“relating to inter and intra-agency records . . . would result
in closing off access to records which are currently open to the
public,” resulting in “a major NET loss of public information.”
The Honolulu Advertiser and KHON-TV also objected to the
exemption, stating that it would “appear to deny access to
documents which are now public records under existing law and
which are critical to the public’s right to know.” And one of
the former members of the Ad Hoc Committee on Public Records and
Privacy that created the Governor’s Report testified that the
provision “relating to inter- and intra-agency records would
result in closing off access to records which are currently open
to the public.”18
18
The former Ad Hoc Committee member noted that “although access to
such records is resisted in practice, the only Hawaii legal case resulted in
the disclosure of this type of internal agency correspondence.”
25
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
After receiving this testimony, the Senate version of
the bill was amended to remove the twelve specific exemptions in
the House bill and add four of the more general exemptions
contained under current law, including the frustration of a
legitimate government function exception now codified in HRS §
92F-13(3). S. Stand. Comm. Rep. No. 2580, in 1988 Senate
Journal, at 1095. Nine of the twelve exemptions contained in
the House bill were included in the Standing Committee Report--
in the same order in which they occurred in the House bill--as
examples of records for which disclosure would frustrate a
legitimate government function:
(b) Frustration of legitimate government function. The
following are examples of records which need not be
disclosed, if disclosure would frustrate a legitimate
government function,
(1) Records or information compiled for law
enforcement purposes;
(2) Materials used to administer an examination
which, if disclosed, would compromise the validity,
fairness or objectivity of the examination;
(3) Information which, if disclosed, would raise the
cost of government procurements or give a manifestly
unfair advantage to any person proposing to enter
into a contract agreement with an agency, including
information pertaining to collective bargaining;
(4) Information identifying or pertaining to real
property under consideration for future public
acquisition, unless otherwise available under State
law;
(5) Administrative or technical information,
including software, operating protocols and employee
manuals, which, if disclosed, would jeopardize the
security of a record-keeping system;
(6) Proprietary information, such as research
methods, records and data, computer programs and
26
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
software and other types of information manufactured
or marketed by persons under exclusive legal right,
owned by an agency or entrusted to it;
(7) Trade secrets or confidential commercial and
financial information;
(8) Library, archival, or museum material contributed
by private persons to the extent of any lawful
limitation imposed by the contributor; and
(9) Information that is expressly made nondisclosable
or confidential under Federal or State law or
protected by judicial rule.
Id. Of the three exemptions contained in the House bill that
were not included as examples of records that would frustrate a
legitimate government interest if disclosed, two were
encompassed by other provisions of the Senate bill.19 Only one
exemption that was present in the House bill was omitted
entirely: the deliberative process provision that the testifying
witnesses had objected to on the basis that it would close
records that were open under then-existing law. Compare id.,
with H.B. 2002, 14th Leg., Reg. Sess., § 1 at 8-10 (1988).
That the omission was intentional is confirmed by the
report of the Conference Committee, which opted to adopt the
general exceptions to disclosure contained in the Senate’s
version of the bill. In discussing the frustration of a
19
Section -13(a)(3), which exempted nondiscoverable litigation
materials, was recodified as a separate exception to disclosure in the
provision that would become HRS § 92F-13(2). Similarly, section -13(a)(12),
which exempted individually identifiable records, was encompassed by the
provision that would become the HRS § 92F-13(1) exception that shields
records when disclosure would constitute “a clearly unwarranted invasion of
personal privacy.”
27
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
legitimate government function exception, the Conference
Committee Report referenced the examples listed in the Senate
Standing Committee Report before stating, “The records which
will not be required to be disclosed under [this section] are
records which are currently unavailable. It is not the intent
of the Legislature that this section be used to close currently
available records, even though these records might fit within
one of the categories in this section.” Conf. Comm. Rep. No.
112-88, in 1988 House Journal, at 818 (emphasis added).
Thus, the legislative history of the UIPA indicates
that the legislature made a conscious choice not to include a
deliberative process privilege in the UIPA because it would
close off records that were historically available to the public
under Hawai‘i law.20 OIP’s adoption of such a privilege is
20
Other legislative history further demonstrates the Hawai‘i
legislature’s rejection of the deliberative process privilege. When adopting
the Hawaii Rules of Evidence (HRE) in 1980, for instance, the Hawaii
legislature disclaimed all common law privileges that were not codified by
statute--including the deliberative process privilege that existed under
federal common law. See HRE Rule 501 & cmt. In choosing which privileges to
so codify, the legislature and judiciary declined to adopt a deliberative
process privilege despite one being contained in the proposed federal rules
after which the HRE were modeled. See Rules of Evidence for the United
States Courts & Magistrates, 56 F.R.D. 183, 251-52 (Nov. 20, 1972)
(containing a proposed Rule 509 granting the government a privilege to refuse
disclosure of “official information,” which was defined to include
“intragovernmental opinions or recommendations submitted for consideration in
the performance of decisional or policymaking functions”); HRE Rule 501 cmt.
(noting that the proposed Rules of Evidence for U.S. Courts and Magistrates
served as a model for the HRE).
28
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
therefore contrary to the clear signals the legislature provided
as to the intended functioning of the statute.
C. OIP’s Interpretation of HRS § 92F-13(3) is Palpably Erroneous
The legislature has provided that OIP’s
interpretations of the UIPA in an action to compel disclosure
should generally be considered precedential. HRS § 92F-15(b).
Nevertheless, our precedents and the UIPA itself make clear that
we are not bound to acquiesce in OIP’s interpretation when it is
“palpably erroneous.” Peer News LLC v. City & Cty. of Honolulu,
138 Hawai‘i 53, 67, 376 P.3d 1, 15 (2016); HRS § 92F-15(b). This
is to say that “judicial deference to an agency’s interpretation
of [even] ambiguous statutory language is ‘constrained by our
obligation to honor the clear meaning of a statute, as revealed
by its language, purpose, and history.’” Kanahele v. Maui Cty.
Council, 130 Hawai‘i 228, 244, 307 P.3d 1174, 1190 (2013)
(quoting Morgan v. Planning Dep’t, Cty. of Kaua‘i, 104 Hawai‘i
173, 180, 86 P.3d 982, 989 (2004)).
We have held that, even when OIP has maintained a
position for many years without challenge, it is this court’s
duty to reject that position if it is plainly at odds with the
UIPA. In ‘Ōlelo: The Corp. for Community Television v. OIP, for
instance, this court considered the “totality of the
circumstances” test OIP had adopted from out-of-jurisdiction
precedent to identify an “agency” for purposes of the UIPA. 116
29
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Hawai‘i 337, 346-49, 173 P.3d 484, 493-96 (2007). Though the
test had been applied in nine OIP opinions over the course of
seventeen years,21 this court nonetheless held it invalid because
it was contrary to the “plain and unambiguous” definition of
“agency” contained in HRS § 92F–3 (1993). Id. at 351, 173 P.3d
at 498. Similarly, in a previous case also entitled Peer News
LLC v. City & County of Honolulu, this court determined that a
nineteen-year-old OIP opinion stating that police officers have
only a de minimis privacy interest in employment-related
misconduct information was palpably erroneous because the
interpretation rendered portions of the UIPA a “nullity.” 138
Hawai‘i at 67, 376 P.3d at 15. Such a result was “inconsistent
with [the] underlying legislative intent” of the statute, we
held. Id. at 67 n.10, 376 P.3d at 15 n.10.
Like OIP’s interpretation of HRS § 92F-3 in ‘Ōlelo, OIP
has maintained in multiple opinions issued over an extended
period that HRS § 92F-13(3) creates a deliberative process
privilege.22 As discussed, however, such an interpretation is
21
See OIP Op. Ltr. Nos. 05-09, 04-02, 02-08, 94-24, 94-23, 94-05,
93-18, 91-05, 90-31.
22
See OIP Op. Ltr. No. F19-01 at 9 (Oct. 11, 2018) (“OIP has issued
a long line of opinions since 1989 that recognize and limit the deliberative
process privilege as a form of the frustration exception in section 92F-
13(3).”); see also, e.g., OIP Op. Ltr. Nos. 07-11, 04-15, 00-01, 93-19, 91-
24, 90-8, 90-3, 89-9.
(continued . . .)
30
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
contrary to the clear and unambiguous language of HRS § 92F-
13(3) and the statement of purposes and policies contained in
HRS § 92F-2. And, like in Peer News, the privilege is plainly
inconsistent with the legislative history of the UIPA, which
indicates that the legislature specifically rejected a
deliberative process exception before enacting the law.23 OIP
therefore palpably erred in adopting an interpretation of HRS §
92F-13(3) that is irreconcilable with the plain text and
(. . . continued)
The City and BFS argue that, by failing to act to correct these
OIP opinions, the legislature has tacitly approved OIP’s interpretation of
HRS § 92F-13(3). As the United States Supreme Court has stated, even a very
long period of legislative silence cannot be invoked to validate a statutory
interpretation that is otherwise impermissible. Zuber v. Allen, 396 U.S.
168, 185 n.21 (1969). Legislative inaction may indicate a range of
conditions other than approval, including “unawareness, preoccupation, []
paralysis,” or simply trust in the state’s court system to correct a clearly
inconsistent interpretation. Id. We therefore decline to recognize
legislative acquiescence in OIP’s interpretation of HRS § 92F-13(3).
23
The OIP opinions do not truly engage with the clear negative
implication of the UIPA’s legislative history. In the 1989 opinion adopting
the privilege, OIP set forth the Senate Committee Report’s examples of
records that may fall under HRS § 92F-13(3) before summarily asserting that
“[a]nother example of government records which if disclosed may result in the
frustration of a legitimate government function are inter-agency and intra-
agency memoranda or correspondence.” OIP Op. Ltr. No. 89-9 at 9. The
opinion then discussed a number of federal cases interpreting the
deliberative process exception contained in the federal Freedom of
Information Act, 5 U.S.C. § 552(b)(5). OIP Op. Ltr. No. 89-9 at 9-11. But
these cases interpreting the federal statute are relevant to the Hawai‘i
legislature’s intent when enacting the UIPA only insofar as they demonstrate
that the legislature was clearly aware that other jurisdictions had codified
the deliberative process privilege, thus making their rejection of such a
privilege all the more clear. Importantly, in adopting the privilege, OIP
failed to consider or even mention those aspects of the UIPA’s legislative
history that demonstrate that the privilege had been intentionally omitted
from the final version of the statute.
31
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
legislative intent of the statute.24 See Peer News, 138 Hawai‘i
at 67, 376 P.3d at 15; ‘Ōlelo, 116 Hawai‘i at 349, 173 P.3d at
496. We accordingly conclude that the circuit court erred by
upholding OIP’s interpretation and by granting summary judgment
to the City and BFS.
D. The Requirements of HRS § 92F-13(3)
Because we hold that OIP palpably erred in adopting a
deliberative process privilege pursuant to the HRS § 92F-13(3)
exception for documents that would frustrate a legitimate
government function if disclosed, we now provide guidance as to
the provision’s proper application. The 1988 Senate Standing
Committee Report, which included examples of records that may
fall under the HRS § 92F-13(3) exception “[t]o assist the
24
The City and BFS alternatively argue that the deliberative
process privilege may be based on the HRS § 92F-13(4) exemption for
“[g]overnment records which, pursuant to state or federal law including an
order of any state or federal court, are protected from disclosure,”
contending that the provision incorporates the federal common law
deliberative process privilege. This novel theory has not been adopted by
OIP, which has made some statements indicating that it takes a contrary
position. See, e.g., OIP Op. Ltr. No. 05-06 at 3 (Mar. 22, 2005) (stating
that HRS § 92F-13(4) applies “only where that record is made confidential by
another statute” (emphasis omitted and added)). Whether reviewed under a
palpably erroneous or de novo standard, the government’s argument fails to
regenerate the privilege from federal common law.
Further, as stated, a deliberative process privilege is contrary
to the plain language of HRS § 92F-2 and the legislative history of the UIPA
as a whole. We accordingly hold that the legislature did not intend HRS §
92F-13(4) to incorporate the federal common law deliberative process
privilege, which applies exclusively in federal courts when jurisdiction is
based on a question of federal law. See Young v. City & Cty. of Honolulu,
No. CIV 07-00068 JMS-LEK, 2008 WL 2676365, at *4 (D. Haw. July 8, 2008);
supra note 20 (describing the Hawai‘i legislature’s rejection of the common
law privilege when enacting the HRE).
32
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Judiciary in understanding the legislative intent,” is highly
instructive. S. Stand. Comm. Rep. No. 2580, in 1988 Senate
Journal, at 1095; see also Kaapu v. Aloha Tower Dev. Corp., 74
Haw. 365, 387-89, 846 P.2d 882, 891-92 (1993) (holding that
competing development proposals would frustrate a legitimate
government function within the meaning of HRS § 92F-13(3) if
disclosed prior to the agency’s final selection of a developer
because, inter alia, the records fell “within one or more of the
classes of information described in the” Senate Standing
Committee Report). Although it is not necessary that a record
fall within or be analogous to one of the enumerated categories
for it to be shielded from disclosure under HRS § 92F-13(3), the
list and the text of the Senate Standing Committee report
provides guidance as to the provision’s operation.
Notably, each of the legislature’s provided examples
implicates a specific legitimate government function, including
the enforcement of laws, the procurement of property, the fair
administration of exams, and the maintenance of secure record-
keeping systems. By contrast, the City and BFS argued that the
legitimate government function that may be frustrated by the
disclosure of deliberative records was simply agency decision-
making. But “decision-making” is such a broad and ill-defined
category that it threatens to encompass nearly all government
actions, which almost inevitably involve decisions of some sort.
33
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Indeed, even illegitimate actions beyond the government’s legal
authority could likely be described as decisions. Thus, to
claim the protections of HRS § 92F-13(3), an agency must define
the government function that would be frustrated by a record’s
disclosure with a degree of specificity sufficient for a
reviewing court to evaluate the legitimacy of the contemplated
function.25 To hold otherwise would result in the provision
having no meaningful limitations.
Further, the Senate Standing Committee Report
indicates that not even the expressly enumerated categories of
records are automatically exempt from disclosure; the report
describes the enumerated documents as “examples of records which
need not be disclosed, if disclosure would frustrate a
legitimate government function.” S. Stand. Comm. Rep. No. 2580,
in 1988 Senate Journal, at 1095 (emphasis added). Thus, HRS §
92F-13(3) calls for an individualized determination that
disclosure of the particular record or portion thereof would
frustrate a legitimate government function.26 That a record is
of a certain type--whether that type is deliberative, pre-
25
Under HRS § 92F-15(c), “[t] he agency has the burden of proof to
establish justification for nondisclosure.”
26
As BFS correctly determined in this case, redaction and
disclosure of the remainder of the record is appropriate when the portion of
a document that qualifies for withholding under one of HRS § 92F-13’s
exceptions is reasonably separable from the record as a whole. See Peer
News, 138 Hawai‘i at 73, 376 P.3d at 21.
34
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
decisional, or even a type included in or analogous to the
examples set forth in the Senate Standing Committee Report--is
not alone sufficient to shield the record from disclosure under
the provision. While such a designation may be instructive, an
agency must nonetheless demonstrate a connection between
disclosure of the specific record and the likely frustration of
a legitimate government function, including by clearly
describing the particular frustration and providing concrete
information indicating that the identified outcome is the likely
result of disclosure. See OIP Op. Ltr. No. 03-16 at 8 (Aug. 14,
2003) (stating that withholding disclosure of a coaching
contract under HRS § 92F-13(3) was not justified because the
university “has provided us with no specific examples of or any
concrete information as to how disclosure of the contract will
frustrate the Athletic Department’s ability to function”).
In sum, to justify withholding a record under HRS §
92F-13(3), an agency must articulate a real connection between
disclosure of the particular record it is seeking to withhold
and the likely frustration of a specific legitimate government
function. The explanation must provide sufficient detail such
that OIP or a reviewing court is capable of evaluating the
legitimacy of the government function and the likelihood that
the function will be frustrated in an identifiable way if the
record is disclosed. See id. at 8, 16 (stating that “[w]e would
35
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
be remiss in our statutory duties if we simply accepted UH’s
statement that disclosure [of the Head Coach’s compensation
package] will frustrate a legitimate government function without
any factual basis to support UH’s assertion” that disclosure
“could have the impact of frustrating the Athletic Director’s
ability to maintain a cohesive coaching team and a successful
athletic program”). In the absence of such a showing,
withholding disclosure under the provision is not warranted.
E. The Dissent’s Proposed Rule
The dissent characterizes our holding--that a
deliberative process privilege is clearly unsupported by the
plain text and legislative history of the UIPA--as an “extreme
position[],”27 and instead advocates for an approach similar to
27
It is noted that several other states have provided through
statute and judicial determination that, as we hold today, deliberative
agency records are generally not exempted from public records request. See,
e.g., Conn. Gen. Stat. § 1-210(e)(1); Vt. Stat. tit. 1, § 317(c)(4); Braddy
v. State, 219 So. 3d 803, 820 (Fla. 2017)(“Inter-office memoranda and intra-
office memoranda communicating information from one public employee to
another or merely prepared for filing, even though not a part of an agency's
later, formal public product, would nonetheless constitute public records . .
. .” (quoting Shevin v. Byron, Harless, Schaffer, Reid & Assocs., Inc., 379
So. 2d 633, 640 (Fla. 1980)). And an administrative decision in at least one
other state has adopted a similar position in the absence of judicial
guidance or an explicit statutory directive. See McKitrick v. Utah Attorney
General’s Office, No. 2009-14, ¶ 7 (Utah State Records Comm. Sept. 17, 2009),
https://archives.utah.gov/src/srcappeal-2009-14.html (“The AG’s Office also
argued that access should be restricted . . . because the common law
recognizes . . . a ‘deliberative process privilege’ for documents created
within the executive branch of government. However, the cases proffered by
the AG’s office supporting such position clearly predate the enactment of
[Utah’s public record’s law].”); see also S. Utah Wilderness All. v.
Automated Geographic Reference Ctr., Div. of Info. Tech., 200 P.3d 643, 656
(Utah 2008) (holding that the requested internal agency records did not fall
(continued . . .)
36
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
that taken by the Colorado Supreme Court in City of Colorado
Springs v. White. Dissent at 4-5 (citing 967 P.2d 1042 (Colo.
1998) (en banc)). From White, the dissent derives a proposed
framework for applying a circumscribed variation of the
deliberative process privilege that shields agency deliberations
only when an agency provides a detailed explanation of why the
record qualifies for the privilege and the government’s interest
in confidentiality outweighs the requester’s interest in
disclosure. Dissent at 30-32. But material differences in
Colorado’s public records statute and evidentiary rules make
White inapposite to Hawai‘i’s UIPA, and the dissent would thus
usurp the role of the legislature by reading a complex exception
into the statute that has no basis in its text or legislative
history.
In White, the Colorado Supreme Court held that a
deliberative process privilege inhered not in a public records
exception for records that would frustrate government functions
if disclosed, but rather an exception that expressly protected
“privileged information” from disclosure. 967 P.2d at 1045-46
(citing Colo. Rev. Stat. § 24-72-204(3)(a)(IV) (1998)). Unlike
(. . . continued)
within the narrow exception in Utah’s public record law for “temporary
drafts” produced by an agency).
37
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
the Hawaii Rules of Evidence (HRE), the Colorado Rules of
Evidence (CRE) provide that claims of privilege are governed by,
inter alia, “the principles of the common law as they may be
interpreted by the courts of the State of Colorado in light of
reason and experience.” CRE Rule 501. The Colorado Supreme
Court was thus acting within the bounds the legislature had
established when in White it recognized a qualified deliberative
process privilege “as part of the common law of Colorado” and
held that the privilege and the balancing test it encompassed
had been incorporated into the statutory public records
exception for “privileged information.” 967 P.2d at 1050, 54-
55.
In contrast, the dissent does not attempt to ground
its deliberative process privilege in a UIPA exemption for
documents that would be undiscoverable in litigation due to an
evidentiary privilege. This is unsurprising because, as
discussed supra, note 20, the HRE do not allow for common law
privileges, and the legislature specifically declined to adopt a
deliberative process privilege when codifying those evidentiary
privileges that are available. See HRE Rule 501 (2006). Thus,
unlike in the Colorado public records law that was interpreted
in White, there is no basis to incorporate a common law
qualified deliberative process privilege or the balancing test
it encompasses into the UIPA.
38
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Indeed, not only is the dissent’s interpretation
lacking in affirmative support, but there are strong textual
signals in the UIPA actively weighing against such a reading.
HRS § 92F-14 (2012) provides a statutory framework for
evaluating when a record qualifies for withholding under HRS §
92F-13(1), which shields “[g]overnment records which, if
disclosed, would constitute a clearly unwarranted invasion of
personal privacy.” HRS § 92F-14(a) explicitly calls for a
balancing test similar to the test the dissent would apply here,
stating that a record will not qualify for withholding when “the
public interest in disclosure outweighs the privacy interest of
the individual.” No analogous provision exists for the HRS §
92F-13(3) frustration of a legitimate government function
exception. The implication of this absence is that “the
legislature clearly knew how to” prescribe a balancing test, and
its failure to do so with respect to HRS 92F-13(3) represents a
conscious decision that one should not be applied. Lales v.
Wholesale Motors Co., 133 Hawai‘i 332, 345, 328 P.3d 341, 354
(2014) (quoting White v. Pac. Media Grp., Inc., 322 F. Supp. 2d
1101, 1114 (D. Haw. 2004)).
The dissent’s approach may well represent sound
policy, and we express no opinion as to its advisability as
matter of public administration. But
39
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
[w]e are not at liberty to interpret a statutory provision
to further a policy that is not articulated in either the
language of the statute or the relevant legislative
history, even if we believe that such an interpretation
would produce a more beneficent result, for the Court's
function in the application and interpretation of such laws
must be carefully limited to avoid encroaching on the power
of the legislature to determine policies and make laws to
carry them out.
Lopez v. State, 133 Hawai‘i 311, 323, 328 P.3d 320, 332 (2014)
(original alterations and quotations omitted) (quoting Ross v.
Stouffer Hotel Co. Ltd., Inc., 76 Hawai‘i 454, 467, 879 P.2d
1037, 1050 (1994) (Klein, J., concurring and dissenting)). The
determination as to whether and to what extent deliberative
documents should be shielded from disclosure must be made by the
legislature and not by judicial fiat. So long as no such
exception exists in the UIPA, this court may not supply its own.
IV. CONCLUSION
The circuit court in this case erred in determining
that the City and BFS were entitled to withhold the budget
requests pursuant to a deliberative process privilege, which
finds no basis in the plain text or legislative history of the
UIPA. Accordingly, we vacate the circuit court’s January 13,
2016 Order Granting Defendants City and County of Honolulu and
Department of Budget and Fiscal Services’ Motion for Partial
Summary Judgment on Count I of the Complaint filed October 19,
2015; January 13, 2016 Order Granting Defendants City and County
of Honolulu and Department of Budget and Fiscal Services’ Motion
for Partial Summary Judgment on Count II of the Complaint filed
40
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
October 19, 2015; and February 5, 2016 Judgment. We remand this
case for further proceedings consistent with the principles set
forth in this opinion.
Robert Brian Black /s/ Sabrina S. McKenna
Sarah Goggans
for appellant /s/ Richard W. Pollack
Duane W.H. Pang /s/ Michael D. Wilson
for appellees
Marissa H.I. Luning
for amicus curiae
State of Hawai‘i
41