Guide to
Hawaii’s Uniform
Information Practices Act
Office of Information Practices
State of Hawaii
October 2018
Office of Information Practices
No. 1 Capitol District Building
250 South Hotel Street, Suite 107
Honolulu, Hawaii 96813
Tel. (808) 586-1400
E-mail: [email protected]
Website: oip.hawaii.gov
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This handbook is a publication of the
Office of Information Practices
Questions and comments may be directed to:
Office of Information Practices
No. 1 Capitol District Building
250 South Hotel Street, Room 107
Honolulu, Hawaii 96813
(808) 586-1400
E-mail: [email protected]
Please visit our website at oip.hawaii.gov
to access OIP’s formal advisory opinions,
guidelines, forms, newsletters, announcements,
administrative rules, and educational materials.
An electronic version of this handbook is available
for downloading in two different size formats.
October 2018
TABLE OF CONTENTS
I. INTRODUCTION ......................................................................... 4
II. OVERVIEW OF THE UIPA...................................................... 6
The Statute ......................................................................... 6
The Administrative Rules.................................................. 7
III. THE STATUTE – CHAPTER 92F .......................................... 8
PART I. GENERAL PROVISIONS .............................. 8
How Should the UIPA Be Interpreted? ....................... 8
Which Organizations Does the UIPA Cover?.............. 9
What Records Does the UIPA Cover? .......................... 9
Who Can Make a Request? ........................................ 12
PART II. FREEDOM OF INFORMATION............... 14
Disclosure Provisions ............................................ 14
Agency Records That Must Always Be Disclosed . 15
The Exceptions to Disclosure ................................ 17
Exception 1 – The Privacy Exception .............. 17
What is a significant privacy interest? ...... 18
What is the public interest in disclosure? . 19
Exception 2 – The Litigation Privilege
Exception ..................................................... 19
Exception 3 – The Frustration Exception ....... 20
Exception 4 – The Law or Order Exception .... 22
Exception 5 – The Legislature Exception ....... 22
Enforcement Provisions ......................................... 23
Appeal of an Agency Denial of Access
to Government Records.............................. 23
Agency Appeals of OIP Decisions. ................... 24
Criminal Penalties ........................................... 24
Interagency Sharing of Records ............................ 25
PART III. PERSONAL RECORDS ............................ 25
Disclosure Provisions............................................. 28
The Exemptions from Disclosure .......................... 28
Exemption 1 – Criminal Law
Enforcement Records .............................. 28
Exemption 2 – Confidential
Source Records ........................................ 29
Exemption 3 – Government Exam Records .... 29
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Exemption 4 – Investigative Materials...... 29
Exemption 5 – Records Protected by Law . 29
Correction of Personal Records ............................ 29
Enforcement Provisions ............................................. 30
Appeal to OIP .................................................... 30
Appeal to the Court from an Agency’s Denial
of Access to Government Records............... 30
Appeal to the Court from an Agency’s Denial
of Access to Personal Records..................... 31
Immunity from Liability .................................. 31
Criminal Penalties ........................................... 32
PART IV. OFFICE OF INFORMATION
PRACTICES................................................. 33
IV. OIP’S ADMINISTRATIVE RULES..................................... 34
THE MECHANICS OF PROCESSING
REQUESTS UNDER PART II ..................................... 34
Agency Guidelines to Respond to a Formal Request...... 3 6
Step 1 – Determine Whether the Agency
Has the Requested Record .............. 37
A. Identify the Record ............................. 37
B. Determine If the Agency or a Unit of
the Agency Maintains the Record ... 37
Step 2 – Determine If an Exception Applies ........ 38
Step 3 – Provide the Required Response .............. 39
Fees .........,. .............................................. 40
A. Make the Record Available. ............... 42
---- OR ----
B. Provide Notice or Acknowledgment
to the Requester ............................... 42
Extenuating Circumstances ................... 44
Incremental Disclosure .......................... 45
Step 4 – Search, Review, and Segregate .............. 45
Step 5 – Provide the Record in the Manner
Requested ......................................... 46
APPENDICES ................................................................................. 47
Appendix A - Request to Access a
Government Record ..........................47
Appendix B - Notice to Requester ................................ 49
Appendix C - Acknowledgment to Requester. ............. 52
Appendix D - Chapter 92F, Hawaii Revised Statutes. 53
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I. INTRODUCTION
All political power of this State is inherent in the people
and the responsibility for the exercise thereof rests with the
people. All government is founded on this authority.
Hawaii State Constitution, article I, section 1
In 1988, the Hawaii State Legislature enacted the Uniform
Information Practices Act (Modified) (“UIPA”) based upon the
premise that a democracy vests the people with the ultimate
decision-making power and government exists only to aid the
people in the exercise of that power.
Recognizing public scrutiny and participation t
o be essential to
the exercise of that power, the Legislature declared it to be the
policy of this state to conduct government as openly as possible,
tempered by the right of the people to privacy as embodied in
our state constitution. To that end, the UIPA mandates that all
government records be open to public inspection unless access is
specifically restricted or closed by law.
The Office of Information Practices (“OIP”) was also created in
1988 to implement the UIPA and to serve as a resource for both
the public and government agencies in interpreting and applying
the law’s provisions.
We are pleased to provide you with this UIPA handbook, which is
intended to provide the public and the non-lawyer agency official
with a better understanding of the UIPA and a step-by-step guide
for application of that law. While the contents of this UIPA Guide
have not been revised since 2015, the appendices were updated
to incorporate the current forms and law as of August 2018. OIP
also supplements this Guide with more detailed comments on
various topics in Quick Reviews and other training materials
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that can be found on the OIP’s Training page at https://oip.hawaii.
gov/training/. Separate training materials for the UIPA Record
Request Log, which helps agencies to track and report record
requests made to them, are also available on OIP’s Training page.
For the most current versions of the law, rules, forms, and other
training materials, please check our website at oip.hawaii.gov.
If you have questions about specific factual circumstances that
may not be answered by this Guide, you should consult with
your attorney, your agency’s attorney, or OIP. OIP provides an
“Attorney of the Day” (AOD) service, through which you may speak
with an OIP staff attorney to receive—typically on the same day
— general legal guidance and assistance with UIPA issues.
Thank you for your participation in Hawaii’s open government.
Cheryl Kakazu Park
Director
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II. OVERVIEW OF THE UIPA
THE STATUTE
The UIPA is codified as chapter 92F of the Hawaii Revised
Statutes (“HRS”). The UIPA governs both (1) the public’s right
to access government records and (2) the individual’s right to
access and correct his or her personal records maintained by the
government.
The UIPA is divided into four parts:
Part I. General Provisions and Definitions.
This part contains the general provisions and
definitions applicable to all parts of the UIPA.
Part II. Freedom of Information. This p
art
governs general public access to government
records.
Part III. Disclosure of Personal Records.
This part governs an individual’s access to his or
her own personal records that are maintained by
the government.
Part IV. Office of Information Practices;
Duties. This part establishes the Office of
Information Practices (“OIP”) and sets forth the
powers and duties of OIP. This part also sets
forth procedures for any agency to appeal an OIP
decision to the courts.
* Chapter 92F, HRS, is attached at the end of this guide as
Appendix D.
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THE ADMINISTRATIVE RULES
In 1998, OIP enacted administrative rules setting forth agency
procedures and fees for processing government record requests
under Part II of the UIPA. These rules are contained in Title 2,
subtitle 7, chapter 71 of the Hawaii Administrative Rules (“HAR”)
and may be accessed on OIP’s website at hawaii.gov.oip. A step
by step description of the agency procedures for processing record
requests is found in Part IV of this guide, beginning on page 36.
In 2012, OIP also enacted administrative rules for the processing
of appeals filed with OIP. These rules are found in Title 2, subtitle
7, chapter 73, HAR, and may also be accessed on OIP’s website,
where you will also find a guide summarizing the appeals rules.
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III. THE STATUTE – CHAPTER 92F
PART I. GENERAL PROVISIONS
How Should the UIPA Be Interpreted?
The Legislature pronounced that it is the policy of this state to
conduct government business as openly as possible while protecting
the right of privacy embodied in our state constitution.
Thus, Part I of the UIPA requires that the UIPA be applied and
construed to promote its underlying purposes and policies, which
are:
(1) To promote the public interest in
disclosure;
(2) To provide for accurate, relevant, timely, and
complete records;
(3) To enhance government accountability;
(4) To make government accountable to individuals in
the collection, use, and dissemination of information
relating to them; and
(5) To balance the individual privacy interest and the
public interest, allowing access unless disclosure
would constitute a clearly unwarranted invasion
of personal
privacy.
Given this direction that the UIPA b
e interpreted to promote open
government, any doubt regarding disclosure of a record should
likely be resolved in favor of access.
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Which Organizations Does the UIPA Cover?
All agencies of the state and county governments must comply
with the UIPA.
“Agency” is defined broadly to encompass all state and county
government
units, including corporations or other establishments
owned, operated, or managed by or on behalf of the state or any
county. It covers the executive, legislative, and judicial branches
of state and county government, but specifically excludes the
nonadministrative functions of the Judiciary. This means that
court records related to the adjudication of a legal matter are
not subject to the UIPA — access is governed by court rules
instead.
FAQ:
I want to get the transcript of a hearing in my divorce
case. I was referred to a court reporter who told me I
need to pay $120 to get a copy. Shouldn’t I be able to
get it for less under the UIPA?
A court hearing is part of the Judiciary’s nonadmin-
istrative functions and, therefore, access to records
maintained by the Judiciary as part of that hearing,
including a transcript and any documents filed with
the court, is governed by the court’s rules and not the
UIPA.
What Records Does the UIPA Cover?
The UIPA requires agencies to disclose all “government records.”
This term is defined broadly to include any information maintained
by an agency that is recorded in any physical form.
OIP has interpreted “maintained” to mean information physically
possessed or administratively controlled by an agency. An agency
has administrative control over a record where it has the right to
gain access to the record. For example, where an agency contracts
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with a private company and has the right to review the records
held by the company under the contract, those records would be
considered government records, even if they are not physically
in the agency’s office.
A record physically in the agency’s office, however, may not be
considered a “government record” where it is held or controlled
by an employee personally and not in his or her capacity as an
employee of the agency, e.g., a personal calendaring system used
solely by the employee. See FAQ below.
Note that an agency is not required to comply with the UIPA to
the extent necessary to protect an agency’s eligibility to receive
federal funding, services, or other assistance.
FAQ:
I am a state employee. Is my personal calendar
considered a “government record” under the UIPA?
We addressed this question in OIP Op. Ltr. No. 04-17
with respect to the calendars of various city officials.
The answer depends on the totality of circumstances
surrounding the creation, maintenance and use of
the calendar. Generally, the UIPA governs records
“maintained” by the agency, not by the individual.
Determination of whether an individual maintains a
record, as opposed to the agency, depends on whether
the individual holds the record in his or her personal
capacity versus his or her official capacity.
FAQ:
I have a cell phone that I use partly for work calls.
I pay the phone myself, but the agency I work for gives
me a monthly allowance toward my cell phone bill.
Are my cell phone bills “government records” under
the UIPA?
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We addressed this question in OIP Op. Ltr. No. 05-08,
and addressed a related question in OIP Op. Ltr. No.
93-17. If you are required to submit your cell phone
bills to the agency to receive the monthly allowance,
then the copies of your cell phone bills held by the
agency would be government records (although
exceptions to disclosure may still apply). If the
allowance is automatic and you are not required
to provide invoices to support it, then the agency
will not have copies of your cell phone bills so the
bills would not be considered government records.
FAQ:
My agency received a request for
a copy of a letter in
Word form. We have no problem with releasing the
letter, but the Word version has metadata showing
all the edits, which is what the requester is trying to
get. Is the metadata also considered a “government
record” subject to the UIPA?
Metadata associated with an electronic file,
such as an
e-mail or an Excel or a Word file, is still a “government
record” under the UIPA. However, the metadata
associated with an electronic file may fall under an
exception to disclosure even when the basic content
of the file does not. Word’s record of previous edits to
a final document, for instance, would typically meet
the “deliberative process privilege” test and fall under
the frustration exception. Further, in most instances
the metadata is not even responsive to a request for a
specified document. Thus it may be appropriate for
an agency to provide a PDF copy of a letter or, if the
requester specifically wanted a Word version, a Word
copy that has been “cleaned” of metadata using the
Document Inspector tool within Word.
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Who Can Make a Request?
“Any person” may make a request for government records under
Part II, the Freedom of Information section of the UIPA. “Person”
is defined broadly to include an individual, government agencies,
partnerships, and any other legal entities.
Under Part II, a government agency generally may not limit
access to public records based on who the requester is or the
proposed use of the record.
FAQ:
May I ask the requester why he is requesting a
government record?
The agency may ask the requester why he or she is
seeking access for certain purposes. For example, where
the requester has made a broadly worded request
rather than requesting a specific record, knowing
the purpose of the request may assist the agency in
determining what records are responsive to the request.
But the purpose of the request should not have any
bearing on the agency’s decision to disclose or withhold
the record.
FAQ:
Our agency has created a compilation of data regard-
ing businesses in this state for the agency’s use in
providing services. A private company from another
state has requested a copy of this data that it intends
to sell to the possible detriment of businesses in this
state. May the agency selectively disclose the data to
only Hawaii businesses?
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No. In the absence of a statute authorizing selective
disclosure, access to the data may not be restricted
to a limited set of requesters who intend to use the
information for certain purposes.
Note, however, that another statute, HRS 27G-2, allows
agencies to “charge for value added electronic services”
provided through the state’s internet portal.
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PART II. FREEDOM OF INFORMATION
Part II of the UIPA contains the provisions that govern the general
public’s right to access government records while Part III governs
an individual’s right to access his or her personal records.
When an individual makes a request for
a personal record under
Part III, the agency must also analyze the request under Part
II for any part of the record that is not required to be disclosed
under Part III.
Disclosure Provisions
General Rule of Disclosure
All government records are open to the public
unless access is restricted or closed by law.
The UIPA requires an agency to make a government record
available for inspection and copying,
unless the agency can show
that an exception to disclosure under HRS § 92F-13 authorizes
the agency to restrict or deny access to that record.
An agency should make the information available in the form
requested if it is readily retrievabl
e in that form. An agency is
not required to prepare a compilation or summary of its records,
unless it is readily able to do so.
However, an agency may, with the requester’s consent, choose
to create a compilation or summary where it would be more
efficient to do so.
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Agency Records that Must Always
Be Disclosed (HRS § 92F-12)
The Legislature created a list of specific categories of records that
must always be disclosed. An exception only applies where it is
referred to in that list. These categories of records are:
(1) Agency rules and general policies;
(2) Final opinions and adjudicated orders (except
as protected by HRS § 92F-13(1));
(3) Government purchasing information, including
all bid results (except as prohibited by
HRS § 92F-13);
(4)
Pardons and commutations, and directory
information for inmates;
(5) Land ownership, transfer and lien
records,
including real property tax information and
state land leases;
6) Environmental test results;
(7) Agency meeting minutes required by law to
be public;
(8) State/county loan program information;
(9) Certified payroll records on public
works
contracts, without social security numbers;
(10) Agency cont
ract hires and consultants’
contracts, without social security numbers;
(11) Building permit information;
(12) Water service consumption data maintained
by the boards of water
supply;
(13) Rosters of licensee or permit holders;
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(14) General employment information for present
and former agency officers and employees
(except undercover law enforcement employees);
(15) Information collected for the purpose of making
information available to the public; and
(16) Information from the transcript, minutes,
report, or summary of a public proceeding.
Agencies must also disclose:
(1) Any record for which the requester has
obtained the prior written consent of all
individuals to whom the record refers;
(2) Records expressly authorized by federal
or state law to be disclosed to the person
requesting access;
(3) Records showing compelling circumstances
affecting the health or safety of any indi-
vidual;
(4) Records requested by court order;
(5) Records subpoenaed by either house of the
state legislature; and
(6) Information from the motor vehicle
registration files when the requester has a
legitimate reason.
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The Exceptions to Disclosure (HRS § 92F-13)
For any record that does not fall into a category that must always
be disclosed, the UIPA provides that it is a public record unless
one of the five exceptions to disclosure under Part II applies. If an
exception only applies to a portion of a record, the agency must
provide access to the remaining portion of the record.
When a record falls within an exception, an agency may withhold
the record, but is not prohibited by the UIPA from disclosing it.
When an agency wants to disclose a record that could be withheld,
the agency should consult with its attorney as to whether the
record should or must be withheld because of another law or the
state or federal constitutions.
The five exceptions to disclosure for Part II are set forth in
§ 92F-13. In summary
, the five exceptions to
the general rule
requiring disclosure of government records are as follows:
Exception 1 – The Privacy Exception
(HRS § 92F-13(1))
An agency may withhold access to a record if disclosure of the
record would constitute a “clearly unwarranted invasion of
personal privacy[.]” To withhold a record under this exception,
an agency must be able to show that:
(1)
An individual has a significant privacy interest
in the information contained in the record; and
(2)
The significant privacy interest is not outweighed by
the public interest in disclosure.
What is the balancing test?
An agency must balance the significant privacy interest
against the public interest in disclosure of the information.
If the public interest is found to outweigh the individual privacy
interest, the agency must disclose the information. When an
agency cannot identify a significant privacy interest, the slightest
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public interest in disclosure will require the agency to disclose
the record.
What is a significant privacy interest?
(HRS § 92F-14)
The UIPA lists some specific examples of the types of information
in which an individual has a significant privacy interest. The list
includes information about an individual’s
(1) Medical history, condition, and treatment.
(2) Criminal law investigation, except where
disclosure is necessary to prosecute or
continue the investigation.
(3) Eligibility for social services or welfare
benefits.
(4) Public employment personnel file type in-
formation, except (a) information required
to be disclosed under § 92F-12(a)(14) and
(2) employee misconduct information if the
employee is suspended or discharged, or if
a county police officer is discharged.
(5) Nongovernmental employment history,
except when information qualifies a govern-
ment employee for his or her position.
(6) Financial information of that individual.
(7) Professional and vocational licensee
qualifications, except:
(a) certain discipline information;
(b) current employment information and
required insurance coverage; and
(c) complaints and dispositions.
(8) Personal recommendations or evaluations.
(9) Social security numbers.
(10) Information whose disclosure would
create a substantial and demonstrable
risk of physical harm to an individual.
OIP has further recognized that an individual has a significant
privacy interest in his or her home contact information, date of
birth, and ethnicity.
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What is the public interest in disclosure?
The public has an interest in obtaining official information that
sheds light on an agency’s performance of its statutory
purpose and the conduct of government officials, or which
otherwise promotes governmental accountability.
Illustration: Balancing of Interests
A former University President had a significant
privacy interest in the Board of Regents’ evaluation of
his job performance. The public had a strong interest
in scrutinizing the work of the Board of Regents as
well as the President’s performance as a high level
government official. Although the two rights were
closely balanced, OIP found that the public interest
outweighed the employee’s privacy interest.
Exception 2 – The Litigation Privilege Exception
(HRS § 92F-13(2))
An agency may withhold access to a record if a litigation privilege
protects that same information in a lawsuit or quasi-judicial
administrative act involving the state or any county. This exception
prevents a party in an action against the state or a county from
using the UIPA in order to gain an unfair advantage.
For example, an agency’s communication with its attorney to seek
legal
advice is generally protected from disclosure in a litigation
context by the attorney-client privilege. Exception 2 would simi-
larly protect this communication from disclosure under the UIPA.
The rationale is that if a person suing the state or a county has
the right to consult with his or her attorney in confidence, then
the government should have that same right to confidentially
consult with its attorney.
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Exception 3 – The Frustration Exception
(HRS § 92F-13(3))
An agency may withhold access to records that, by their nature,
must be confidential in order for the agency to avoid frustration
of a legitimate government function. To withhold a record under
this exception, an agency must identify a legitimate government
function of the agency and show how disclosure of the record would
frustrate the agency’s ability to perform that function. Examples
of records that might be included under this exception are:
(1) Law enforcement records, where disclosure
could reasonably be expected in some particular,
discernable way to interfere with pending
e
nforcement proceeding
s.
(2) Examination materials, if disclosure would com-
promise the validity, fairness, or objectivity of the
examination.
(3) Government purchasing information that,
if disclosed, would raise the cost of government
procurements or give a manifestly unfair advantage
to any person proposing to enter into a contract or
agreement with an agency.
(4) Land acquisition information identifying or
pertaining to real property under consideration for
future public acquisition.
(5) Proprietary information, such as research
methods, records and data, computer programs,
software, and other types of information
manufactured or marketed by persons under
exclusive legal right, owned by an agency or
entrusted to it.
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(6) Confidential business information, which
includes trade secrets or confidential commercial
and financial information where there is a likeli-
hood of substantial competitive harm. For example,
information may be withheld if disclosure would al-
low competitors to selectively underprice, estimate
profit margins, or determine market and supply
weaknesses.
(7) Inter-agency or intra-agency memoranda or
correspondence used in the agency’s decision-
making that falls under the “deliberative process
privilege.” This privilege allows an agency to
withhold recommendations, draft documents,
proposals, suggestions, and other opinion materials
that comprise part of the process by which the agency
formulates its decisions and policies. It protects the
quality of agency decisions by encouraging the
uninhibited exchange of ideas, recommendations,
and opinion
s within an agency.
To withhold a record, an agency must show that the
record is:
(a) Predecisional, meaning that the record
must be received by the decision-maker
prior to the time the agency decision or
policy is made and
(b) Deliberative, meaning that the record
consists of a recommendation or opinion
on agency matters that was a direct part
of the decision-making process.
A record protected by this privilege may lose this
protection where the agency later expressly adopts or
incorporates the record into its final decision or policy.
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Illustration: Records or Information Compiled for Law
Enforcement in a Pending or Prospective
Law Enforcement Proceeding
Access to investigative records before an
investigation is concluded could frustrate
a legitimate government function where (1) the
target of the investigation could obtain premature
access to the government’s case; (2) witnesses could be
subject to reprisal or harassment; (3) evidence could
be destroyed; or (4) witnesses could become unwilling
to provide information to the agency.
Exception 4 – The Law or Order Exception
(HRS § 92F-13(4))
An agency may withhold access to records that are protected from
disclosure by a state or federal law or by a court order, such as tax
return information required to be kept confidential by statute. The
term “law” does not include administrative rules, county charter
provisions, or mayoral orders.
Exception 5 – The Legislature Exception
(HRS § 92F-13(5))
Legislative committees may withhold their draft working papers
and work product; legislative investigating committees may
withhold their records or transcripts protected by legislative rule;
and legislators may withhold their personal files.
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ENFORCEMENT PROVISIONS
Appeal of an Agency Denial of Access
to Government Records
(HRS §§ 92F-15, -15.3 & -15.5)
An individual who has been denied access to a government record
may appeal that denial in two ways. The requester may:
(1) Appeal to t
he OIP; and/or
(2) Bring a legal action against the agency in circuit
court within two years of the agency’s denial of
access.
An individual does not need to appeal to OIP before bringing an
action in court, but may choose to do so first then later appeal to
the court, if necessary. If OIP determines that the record must
be disclosed, “the agency shall make the record available.” HRS §
92F-15.5(b). An appeal to the court is considered on an expedited
basis. The person filing an appeal to the court must give notice
to OIP of the written filing.
If the court orders the agency to disclose a record that the
agency deni
ed access to, the court must order the agency to pay
the requester his or her reasonable attorney’s fees and all other
expenses reasonably incurred in the litigation.
If a requester files a lawsuit to compel disclosure by an agency
that failed to make a record available after OIP issued a decision
that the agency should disclose (and the agency has not appealed
OIP’s decision), OIP’s decision is not be subject to challenge by
the agency in the action to compel disclosure.
OIP’s formal opinions are admissible in court as precedent unless
found to be
palpably erroneous. In an action to compel disclosure
brought by a person after OIP upheld the agency’s denial, the
opinion or ruling upholding the agency’s denial of access shall be
reviewed de novo.
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Agency Appeals of OIP Decisions
An agency may appeal an OIP decision to the courts in accordance
with section 92F-42, HRS. An agency appeal must be filed within
30 days of OIP’s decision, and notice must be given to OIP and
the person who requested the decision. OIP and the person who
requested the decision are not required to participate in the
proceeding, but may intervene.
The court’s review is limited to the record that was before OIP,
unless the court finds that extraordinary circumstances justify
discovery and admission of additional evidence. The circuit court
must uphold an OIP decision unless it concludes the decision was
palpably erroneous.
For more information, see OIP’s Guide to Appeals to the Office of
Information Practices, available on OIP’s website at oip.hawaii.
gov.
Criminal Penalties (§92F-17)
The UIPA imposes criminal penalties upon:
(1) A government worker who intentionally
discloses a government record or information,
despite being aware that a statute
specifically makes that record or information
confidential; and
(2) Anyone who uses false pretense, bribery, or
theft to intentionally access a government
record or information that he or she knows is
confidential.
The UIPA specifically provides immunity from civil or criminal
liability to an employee who discloses a record or denies access
to a record in good faith.
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24
INTERAGENCY SHARING OF RECORDS
An agency may share non-public records with another agency
under certain circumstances listed in HRS § 92F-19.
Generally, a specific need or legal authority must be shown for
records to be shared with another agency.
For example, the statute allows a prosecutor to share with the
Departmen
t of Corrections information related to an adult
corrections officer’s arrest on drug related offenses because the
department is, by statute and through its administrative rules,
authorized and required to continuously monitor an officer’s
character, reputation, and suitability to serve in that capacity.
The agency receiving the records must treat the records in the
same manner as the agency that originally had the records. In
other words, the receiving agency cannot disclose a record publicly
if the originating agency could not.
Agencies are generally not authorized to share records protected
by a specific confidentiality statute. For example, HRS § 235-
116 specifically prohibits disclosure of income tax return
information.
PART III. PERSONAL RECORDS
The UIPA has a separate section that deals with an individual’s
right to access and correct his or her own “personal records.”
A “personal record” is a government record that contains
information “about” the individual who is requesting the record.
This includes an individual’s educational, financial, or medical
records, or items that reference the individual by name or
otherwise.
Because “personal records” are also “government records,”
they
may also be requested by others under Part II of the UIPA, the
general public access section.
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An agency is only required to provide access under Part III to an
“accessible” personal record, which generally means one that is filed
by the person’s name or other identifying information, or which the
agency can otherwise readily find.
For an extensive discussion regarding the disclosure of personal
records under Part III as compared to government records under
Part II, see OIP Opinion Letter No. F13-01, which provided the
basic analytical framework for responding to a personal
record request, as follows:
1) What is the “personal record” of the individual requesting
access under Part III of the UIPA?
An agency should review the subject matter and contents of the
requested record in order to ascertain what, if any, information
in the record identifies and is specifically about the individual
requesting access, and thereby determine whether all or a portion
of the record constitutes that individual’s “personal record.”
2) Does an applicable Part III exemption in section 92F-
22, HRS, allow the withholding of access to the personal
record?
When an agency has determined that the record, or portions thereof,
is an individual’s personal record, the agency may withhold the
personal record from the individual only when there is an applicable
Part III exemption as set forth in section 92F-22, HRS.
3) What portion, if any, is a government record subject to the
public disclosure requirements of Part II of the UIPA?
Any portion that is not a personal record must be reviewed under
Part II of the UIPA to determine whether the requester, as a
member of the general public, would be entitled to access the
government record.
4) Does an applicable Part II exception in section 92F-13,
HRS, allow the non-disclosure of a government record that
is not a Part III personal record?
An agency may withhold such portion of the record from public
access only when it falls within an exception to required public
disclosure, as set forth in section 92F-13, HRS. If no Part II
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26
exception applies, the agency must publicly disclose that portion
of the government record.
Joint Personal Records
A joint personal record is a rec
ord that contains more than
one individual’s name or other identifying particular. A joint
personal record is generally assumed to be entirely accessible to
the requester where no Part III exception allows the agency to
withhold the record from the requester.
However, a portion of the record that is clearly “about” someone
else and not “about” the requester may be segregated from the
record because it would not be the requester’s “personal record.”
Instead, that portion would be analyzed as a general records
request under Part II so the privacy exception could apply to
protect that information.
Illustration: Joint Records
A UH Campus Security report of an alleged sexual
assault included a campus security officer’s written
report, the alleged assailant’s photograph, and witness
statements. The report was a joint personal record. It
was a personal record of the alleged victim, and it was
also a personal record of the alleged assailant and
each of the witnesses. In response to a request made
by the alleged victim, the report should generally be
disclosed to her because no personal records exception
applied. However, some personal information, such as
home contact information, was only “about” the other
individuals and not “about” her. That information was
not subject to disclosure as her personal record and had
to be analyzed as a general records request.
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DISCLOSURE PROVISIONS
An agency must provide an individual access to his or her personal
record within 10 working days after receiving a request unless an
exception under Part III allows the agency to withhold the record
from that requester.
The agency may extend its response period for an additional
20 working days if, within the initial 10-day period, the agency
provides the individual with a written explanation of “unusual
circumstances” causing the delay.
The Exemptions from Disclosure (HRS § 92F-22)
The personal records section of the UIPA contains its own set
of exceptions, which differ from those for general government
records requests.
Generally, these personal records exceptions protect from
disclosure:
(1) Criminal law enforcement agency records;
(2) Confidential source records;
(3) Government exam records;
(4) Investigative materials; and
(5) Records protected by law.
Exemption 1 – Criminal Law Enforcement Records
(HRS § 92F- 22(1))
Agencies with a principal function of crime prevention, control,
or reduction may withhold access to:
(1) Information or reports prepared or
compiled for
criminal intelligence or investigation; and
(2) Reports prepared or compiled during any stage of
the criminal law enforcement process.
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Exemption 2 – Confidential Source Records
(HRS § 92F-22(2))
An agency may withhold records when necessary to protect the
identity of a source who furnished information to the agency under
an express or implied promise of confidentiality.
Exemption 3 – Government Exam Records
(HRS § 92F-22(3))
An agency may withhold examination materials that it uses solely
for government hiring or promotions or for licensing or academic
testing, if disclosure would compromise the objectivity, fairness,
or effectiveness of the process.
Exemption 4 – Investigative Materials
(HRS § 92F-22(4))
An agency may withhold investigative reports and materials
related to an uncompleted civil, criminal, or administrative
proceeding against the individual requesting the records.
Exemption 5 – Records Protected by Law
(HRS § 92F-22(5))
An agency may withhold records (1) required to be withheld
from the individual by statute or court decision or
(2) authorized to be withheld by constitutional or statutory
privilege. This allows agencies to withhold records such as records
sealed by a court order, communications between the agency and
its attorney, and records found to be privileged in litigation.
CORRECTION OF PERSONAL RECORDS
An individual has a right to correct or amend factual errors,
misrepresentations, or misleading entries in his or her personal
record. Part III sets out the procedures for correction.
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ENFORCEMENT PROVISIONS
Appeal to OIP (HRS § 92F-42(1))
A requester who has been denied access to government or personal
records may seek the assistance of OIP as a neutral third party.
Among other things, OIP has the power to investigate, may exam-
ine the agency’s records, and may recommend disciplinary action
to appropriate officers of an agency. HRS § 92F-42. OIP’s review
is not a contested case proceeding subject to HRS Chapter 91, and
is optional and without prejudice to the requester’s right to seek
judicial enforcement. HRS § 92F-42(1). The agency has the bur-
den of proof to establish justification for the nondisclosure of the
requested records. HRS § 92F-15(c). If OIP determines that the
record must be disclosed, then the agency shall make the record
available to the requester, unless the agency files a timely appeal
to the courts. See HRS §§ 92F-15.5(b), 92F-27.5(b), and 92F-43.
A requester does not need to appeal to OIP before bringing
an action in court, but may choose to appeal to OIP first and then
later appeal to the court, if necessary. OIP’s formal opinions and
rulings are admissible in court and shall be considered as precedent
unless found to be palpably erroneous. HRS §§ 92F-15(b) and 92F-
43(c). If OIP upheld the agency’s denial of access, however, the
opinion or ruling is reviewed de novo by the court in an action by
the requester to compel disclosure. HRS § 92F-15(a).
Appeal to the Court from
an Agency’s Denial of Access
to Government Records (HRS § 92F-15)
Within two years after the agency’s denial, a person aggrieved by
a denial of access to a government record may bring an action to
compel disclosure in the circuit court, which shall be heard on an
expedited basis. It is not necessary for a requester to seek OIP’s
assistance before filing a court action. If, however, OIP has made
a decision that a record must be disclosed and the agency failed
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30
to timely appeal from that decision, then OIP’s decision shall
not be subject to challenge by the agency in the action to compel
disclosure.
If the complainant prevails, then the court shall assess against the
agency reasonable attorney’s fees and all other expenses reason-
ably incurred in the litigation.
Appeal to the Court from
an Agency’s Denial of Access
to Personal Records (HRS §§ 92F-27 and -27.5)
An individual who has been denied access to his or her personal
records may
seek OIP’s assistance, or bring a legal action against
the agency in circuit court within two years of the denial or access
or, when applicable, receipt of a final OIP determination.
If the court determines that the agency knowingly or intentionally
violated the personal records provisions of Part III of the UIPA,
then the agency shall be liable for actual damages sustained by the
requester, but no less than $1,000, and the costs of the action and
reasonable attorney’s fees. The court may also assess attorney’s
fees and costs against the agency when the complainant substan-
tially prevails in the case, or against the complainant when the
charges brought against the agency are frivolous.
Immunity from Liability (HRS § 92F-16)
Anyone participating in good faith in the disclosure or nondisclo-
sure of a government record shall be immune from any civil or
criminal liability.
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Criminal Penalties (HRS § 92F-17)
Unless a greater penalty is otherwise provided for by law, it is a
misdemeanor for an agency’s officer or employee to intentionally
disclose or provide a copy of a government record, or any confi-
dential information explicitly described by specific confidentiality
statutes, to any person or agency with actual knowledge that the
disclosure is prohibited.
It is also a misdemeanor for a person to intentionally gain access
to or obtain a copy of a government record or confidential infor-
mation by false pretense, bribery, or theft, with actual knowledge
that access is prohibited.
Criminal penalties may be pursued by the state Attorney General’s
office or the county Prosecuting Attorney’s office, not OIP.
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32
PART IV. OFFICE OF INFORMATION PRACTICES
This part sets forth OIP’s functions and duties in administering
the UIPA (as well as the Sunshine Law, Part I of chapter 92,
HRS). These functions and duties include:
Providing g
uidance to the public on rights granted under
the UIPA
Providing guidance to agencies on agency functions and
responsibilities under the UIPA
Providing assistance to the public in making UIPA requests
and in obtaining records from agencies
Providing assistance to agencies in complying with the
UIPA
Providing
education and training for agencies’ officers and
employees
Receiving complaints and investigating possible violations
by agencies
Reviewing and ruling on agency denials of access
Recommending legislative changes
Monitoring UIPA-related litigation
Reporting to the Governor and Legislature on OI
P’s
activities and findings
OIP provides guidance and assistance through a variety of
means. It issues advisory opinions and rulings. It provides direct
assistance on general matters to both government agencies as well
as to members of the public through its “Attorney of the Day” legal
advice program. OIP provides advice on specific matters through
a more formal request process for assistance, investigation, or
opinion.
OIP continually provides training sessions;
publishes resource
materials and an informational newsletter; and maintains a
website providing access to the statute, rules, forms, and all
formal opinions.
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IV. OIP’S ADMINISTRATIVE RULES
THE MECHANICS OF PROCESSING REQUESTS
BY AGENCIES UNDER PART II
Upon receiving a general request for access to a government
record and unless an exception applies, an agency must make
the requested record available for inspection and copying during
regular business hours.
OIP’s administrative rules in Title 2, subtitle 7, chapter 71, HAR,
contain the procedures for, and other provisions related to, the
agency’s processing of a request made under Part II.
To assist the agencies in properly processing, tracking,
summarizing, and reporting UIPA record requests, OIP has
prepared the guidelines found in the next section, as well as the
UIPA Record Request Log. The Log form, directions, and training
materials are found on OIP’s UIPA training page on its website
at oip.hawaii.gov. All state and county agencies should be using
the Log for their formal record requests.
Informal Request
When an agency receives an oral request for a record, OIP’s
administrative rules provide that the agency can:
(1) Provide access t
o a disclosable record in a reasonably
timely manner (if the agency is going to charge more
than $15.00 in fees, it must inform the requester
before processing the request);
(2) Deny access (if the requester disagrees with the
denial, the agency must tell the requester that he
or she can submit a formal request);
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34
(3) Inform the requester that the agency does not
maintain the record; or
(4) Ask that the requester submit a formal request.
Formal Request
An agency may require that a formal request be submitted.
A formal request must be made in writing and must include the
following information:
(1) Contact information for the requester;
(2) A reasonable description of the requested
record to enable the agency to locate the
record with reasonable effort;
(3) Any request for a waiver of fees in the public
interest and facts to support the waiver;
and
(4) A request to inspect records or a request
to obtain a copy and the desired means of
transmission.
* Although a requester is not required to use it, a “Request to Access a
Government Record” form is attached to the guide as Appendix A and
can also be found online on the “Forms” page at oip.hawaii.gov.
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AGENCY GUIDELINES TO RESPOND TO
A FORMAL REQUEST
OIP has developed the following guidelines to provide the analyti-
cal framework for agencies to properly respond to formal written
record requests under the UIPA and to determine if exceptions
to disclosure may be claimed by an agency. The guidelines also
describe the process that agencies should follow in responding to
government or personal record requests.
Additionally, agencies should be using the UIPA Record Request
Log as a tool to track, summarize, and report data regarding record
requests. The Log walks agencies through the process of identify-
ing and timely responding to record requests while keeping track
of search, review, and segregation times and the costs of copying
and delivering records and responses. Agencies’ summaries from
their individual Logs should be reported and uploaded twice a year
to the Master UIPA Record Request Log on data.hawaii.gov, where
the statewide and countywide results can be reviewed and com-
pared from year-to-year. For the Log form, directions, and training
materials, go to OIP’s UIPA training page at oip.hawaii.gov.
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36
Step 1 – Determine Whether the Agency
Has the Requested Record
A. Identify the Record.
If a request is unclear, the agency may request more information
in its notice to requester, explained below, or may simply contact
the requester informally and ask.
FAQ:
Our agency received a request for X. I believe that
the requester is really seeking Y. May I contact the
requester to see which record he wants?
Yes. The agency may formally ask for clarification
in the required notice, but the agency generally
should attempt to clarify the request before sending
the required notice in order to expedite the agency’s
response.
B. Determine if the Agency or a Unit of the
Agency Maintains the Record.
The agency must make an initial determination of whether any
unit or division of the agency “maintains” the requested record.
As explained above, an agency “maintains” a government record if
the record is in the physical possession of the agency and/or under
its administrative control.
Under OIP’s administrative rules, if one unit or division receives
a request for a record that is maintained by another unit or
division within the agency, then it must forward the request to the
appropriate unit or division. The time for response to the request
will then begin to run once the request is received by the unit or
division that maintains the record. See HAR § 2-71-13(d).
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Step 2 – Determine If an Exception Applies
A record, or a portion of the record, may be withheld if it falls
within one of the five exceptions to disclosure listed under HRS
§ 92F-13:
(1) The Privacy Exception
(2) The Litigation Privilege Exception
(3) The Frustration Exception
(4) The Law or Order Exception
(5) The Legislature Exception
An exception applies if the answer is “yes” to any of the
following questions:
• Would disclosure constitute a clearly
unwarranted invasion of an individual’s
personal privacy?
• Would the record be privileged against
discovery in a judicial or quasi-judicial
action involving the State or any county?
• Must the agency keep the record confidential
in order to avoid the frustration of one of its
legitimate functions, i.e., in order to do its
job?
• Is the record protected by state or federal
law or by court order?
• Is the record a draft document of a legislative
committee or contained in the personal file
of a legislator?
When an agency denies access to a record, the agency
has the burden of justifying its withholding under an
applicable exception.
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38
Must the record (or information) be withheld if an
exception applies?
In certain instances, the agency must withhold records, such as
where the record is made confidential by state or federal law or is
information protected by the individual’s right to privacy under
the state or federal constitutions.
Does the agency have the discretion to disclose the
record, even if an exception applies?
Unless it is required by another law or court order to maintain
the confidentiality of a record, the agency can choose to disclose
a record that falls under an exception. For example, an agency
may choose to disclose a preliminary document on a project prior
to making a final decision, even though the agency could have
withheld the record under the “frustration” exception.
Step 3 – Provide the Required Response
Within ten business days of receipt of a request, the agency must
respond to the requester. Depending upon the circumstances, the
agency must:
A. Make the r
ecord available; OR
B.
Provide a “Notice to Requester” or
an “Acknowledgment to Requester”
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Fees
OIP’s administrative rules allow an agency to charge certain
fees. See Haw. Admin. R. § 2-71-19. These rules also allow an
agency to require prepayment of 50% of the agency’s estimated
fees to search for, review, and segregate the requested records,
plus 100% of the agency’s estimate of other lawful fees, such as
copying or mailing costs, as detailed below.
Note that the agency must waive the first $30 in fees for search,
review, and
segregation. Alternatively, the agency must waive
the first $60 in fees where the agency finds that the requester
has met the requirements under OIP’s administrative rules for
a public interest waiver, as detailed below.
“Allowable fees.” An agency may charge fees as follows:
(1)
Fees for search, review, and segregation of
the record(s), with the first $30 of the total
waived, calculated as follows:
(a) For search: $2.50 per 15 minutes
or fraction thereof; and
(b) For review/segregation: $5 per
15 minutes or fraction thereof.
(2)
Any other lawful fees.
“Search” means to look for a government record, including
page-by-page or line-by-line identification of a government
record, manually or by computer using existing retrieval or
programming capabilities.
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40
“Review” means to examine a record in order to determine
which portions, if any, may be exempt from disclosure, but does
not include the time spent by the agency or another person to
resolve issues of general law or policy regarding the applicability
of exceptions to disclosure under the UIPA.
“Segregate” means to prepare the record for disclosure by
excising any portion of the record exempted from disclosure. If
information is reasonably segregable from a requested record,
the agency is required to provide access to the portions of the
record that are required to be disclosed. OIP recommends
that a copy be made; that the agency black-out the exempted
information; and that the agency then make a copy of that
redacted copy to be furnished to the requester. Note that the
agency may only charge for one copy of the record.
“Other lawful costs” include photocopying costs pursuant
to HRS § 92-21, the actual cost of a CD or videotape used
to copy a record, and the actual charge for postage or other
transmission.
“Public interest waiver.” The agency is required to waive
$60 of the total fees for search, review, and segregation if
it finds that the public interest would be served because
(1) the record is not readily available to the public and
(2) the requester intends and has the actual ability to widely
disseminate the information to the public.
“Prepayment.” Based upo
n the agency’s good faith estimate
of the above fees, the agency may require the requester to
prepay:
(1) 50% of the estimated allowable fees for
search, review, and segregation;and
(2) 100% of the estimated costs to prepare
and transmit the record.
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A. Make the Record Available
If the record is listed under HRS § 92F-12 (records that are always
public) or is a record available for public access in its entirety (i.e.,
it is clear no exception applies to any portion of the record and there
is no need to search for the record), then the agency must disclose
the record within a reasonable time not to exceed 10 business days
or upon prepayment of fees, if required by the agency.
When a record is easily accessible, the agency should not delay
its disclosure.
In such a case, disclosure on the tenth day, absent
other circumstances, would likely not be reasonable.
------- OR -------
B. Provide Notice or Acknowledgment
to the Requester
For a record not listed under HRS § 92F-12 or that is not publicly
available in its entirety, the agency must provide a written
response to the requester within 10 business days.
1. Notice to Requester
The Notice to Requester provides information required by OIP’s
administrative rules about how the agency will provide access
to the requested record, including when and to what extent the
records will be made available.
* OIP has created a “Notice to Requester” form that the agency may use.
It is availab
le in Word and pdf format on the OIP website. A copy is
attached to this handbook as Appendix B.
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42
The Notice to Requester must include the following information
as applicable:
(1) When the agency will disclose all or part of
the record, the notice must include:
(a) Where or how the record or copies
will be made available;
(b) A good faith estimate of “allowable fees,”
grant of “public interest waiver,” and
any “prepayment” required;
(c) Instructions for any necessary,
additional arrangements;
(d) When the record will be available; and
(e) Whether “incremental disclosure”
will be made and the justification for
such disclosure.
(2) When the agency is denying access to all or
part of a record, the notice must identify:
(a) The specific record or part that will
not be disclosed; and
(b) The HRS § 92F-13 exception that allows
withholding (and any other applicable
laws) and a brief explanation of why the
agency cited that exception.
(3) When the agency is unable to disclose
all or part of the record, the notice
must state that:
(a) The agency does not maintain the
record;
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(b) The agency requires a further
description or clarification of the
requested record to identify and
search for the record; or
(c) The request requires the agency
to create a summary or compile
information not readily retrievable.
2. Acknowledgment to Requester
When “extenuating circumstances” exist, the agency may
provide the requester with written acknowledgment* of the
request within 10 business days, but must then provide the Notice
to Requester within 20 business days from the agency’s receipt of
the request. See Haw. Admin. R. § 2-71-13(c).
* OIP has created an “Acknowledgment to Requester” form that the agency
may use. It is available in Word and pdf format on the OIP website.
A
copy is attached to this handbook as Appendix C.
“Extenuating circumstances” exist when:
(1) The agency must consult with another person
(not including OIP or the agency’s counsel) to
determine whether the record is exempt from
disclosure under the UIPA;
(2) The request requires extensive search, review,
segregation, or preparation;
(3) The agency requires additional time
to respond
in order to avoid an unreasonable interference
with its other statutory duties and functions; or
(4) A natural disaster or other situation beyond the
agency’s co
ntrol prevents a response.
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44
Incremental Disclosure
Disclosure may be made in increments when:
(1) “Extenuating circumstances” are present; and
(2) The requested records are
voluminous.
When incremental disclosure is to be made, the agency may require
(1) one prepayment of fees prior to any disclosure or (2) incremental
prepayment of fees prior to each incremental disclosure.
If one prepayment is required: Each increment of records must
be disclosed within 20 business days of the prior incremental
disclosure.
If incremental prepayment is allowed: Each increment of records
must be disclosed within 20 business days after the prepayment
made for that increment of records.
Step 4 - Search, Review, and Segregate
For records not immediately accessible, the agency must:
(1) Locate the requested record; and
(2) When the agency has identified possible exceptions
to disclosure, the agency must review and segregate
the information it will withhold.
Rather than withholding the entire record, information that may
be withheld must be segregated if it may reasonably be removed
from the record. Segregation must be done in a way that makes
it reasonably apparent that information has been deleted from
the record.
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When an agency requires a prepayment of fees, OIP recommends
that the agency delay its search, review, and segregation until
receipt of the prepayment in order to avoid wasted effort in the event
the requester chooses to narrow or abandon the request.
Step 5 - Provide the Record in the Manner Requested
A record to be disclosed must be disclosed within 5 business days
after the agency provides notice or, when applicable, after receiving
prepayment of allowable fees.
The agency must make reasonable efforts to provide access to the
record in the manner requested by the requester.
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APPENDIX A (page 2)
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48
A
PPENDIX
C
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52
APPENDIX D
Chapter 92F, Hawaii Revised Statutes
UNIFORM INFORMATION PRACTICES ACT
(MODIFIED)
The following is an unofficial copy of chapter 92F, Hawaii Revised
Statutes, which is current through the 2017 legislative session.
Amendments may have been made to the Law after publication of this
manual. To view any amendments, please visit OIP’s website at oip.
hawaii.gov and look under Laws/Rules/Opinions.
CHAPTER 92F
UNIFORM INFORMATION PRACTICES ACT
(MODIFIED)
PART I. GENERAL PROVISIONS AND DEFINITIONS
Section
92F-1 SHORT TITLE
92F-2 PURPOSES; RULES OF CONSTRUCTION
92F-3 GENERAL DEFINITIONS
92F-4 FUNDING, SERVICES, AND OTHER FEDERAL ASSISTANCE
PART II. FREEDOM OF INFORMATION
9
2F-11 AFFIRMATIVE AGENCY DISCLOSURE RESPONSIBILITIES
92F-12 DISCLOSURE REQUIRED
92F-13 GOVERNMENT RECORDS; EXCEPTIONS TO GENERAL
RULE
92F-14 SIGNIFICANT PRIVACY INTERESTS; EXAMPLES
92F-15 JUDICIAL ENFORCEMENT
92F-15.3 NOTICE TO THE OFFICE OF INFORMATION PRACTICES
92F-15.5 ALTERNATIVE METHOD TO APPEAL A DENIAL OF
ACCESS
92F-16 IMMUNITY FROM LIABILITY
92F-17 CRIMINAL PENALTIES
92F-18 AGENCY IMPLEMENTATION
92F-19 LIMITATIONS ON DISCLOSURE OF GOVERNMENT
RECORDS TO OTHER AGENCIES
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PART III. DISCLOSURE OF PERSONAL RECORDS
Section
92F-21 INDIVIDUAL’S ACCESS TO OWN PERSONAL RECORD
92F-21.5 REPEALED
92F-22 EXEMPTIONS AND LIMITATIONS ON INDIVIDUAL ACCESS
92F-23 ACCESS TO PERSONAL RECORD; INITIAL PROCEDURE
92F-24 RIGHT TO CORRECT PERSONAL RECORD;
INITIAL PROCEDURE
92F-25 CORRECTION AND AMENDMENT; REVIEW PROCEDURES
92F-26 RULES
92F-27 CIVIL ACTIONS AND REMEDIES
92F-27.5 ALTERNATIVE METHOD TO APPEAL A DENIAL OF
ACCESS
92F-28 ACCESS TO PERSONAL RECORDS BY ORDER IN JUDICIAL
OR ADMINISTRATIVE PROCEEDINGS; ACCESS AS
AUTHORIZED OR REQUIRED BY OTHER LAW
PART IV. OFFICE OF INFORMATION PRACTICES; DUTIES
92F-41 OFFICE OF INFORMATION PRACTICES; ESTABLISHED
92F-42 POWERS AND DUTIES OF THE OFFICE OF INFORMATION
PRACTICES
92F-43 AGENCY APPEAL OF A DECISION BY THE OFFICE OF
INFORMATION PRACTICES
PART 1. GENERAL PROVISIONS AND DEFINITIONS
[§92F-1] Short title. This chapter shall be known and may be cited as the Uni-
form Information Practices Act (Modified). [L 1988, c 262, pt of §1]
[§92F-2] Purposes; rules of construction. 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.
The 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 Constitution of the State of Hawaii.
This chapter shall be applied and construed to promote its underlying purposes
and policies, which are to:
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(1)
Promote the public interest in disclosure;
(2)
Provide for accurate, relevant, timely, and completegovernment
records;
(3)
Enhance governmental accountability through a general policy of
access to government records;
(4)
Make government accountable to individuals in the collection, use,
and dissemination of information relating to them; and
(5)
Balance the individual privacy interest and the public access
interest, allowing access unless it would constitute a clearly
unwarranted invasion of personal privacy. [L 1988, c 262, pt of §1]
[§92F-3] General definitions. Unless the context otherwise requires, in this
chapter:
“Agency” means any unit of government in this State, any county, or any combi-
nation of counties; department; institution; board; commission; district; council;
bureau; office; governing authority; other instrumentality of state or county
government; or corporation or other establishment owned, operated, or managed
by or on behalf of this State or any county, but does not include the nonadminis-
trative functions of the courts of this State.
“Government record” means information maintained by an agency in written,
audi
tory, visual, electronic, or other physical form.
“Individual” means a natural person.
“Person” means an individual, corporation, government, or governmental sub-
division or agency, business trust, estate, trust, partnership, association, or any
other legal entity.
“Personal record” means any item, collection, or grouping of information about
an
individual that is maintained by an agency. It includes, but is not limited to,
the individual’s education, financial, medical, or employment history, or items
that contain or make reference to the individual’s name, identifying number,
symbol, or other identifying particular assigned to the individual, such as a fin-
ger or voice print or a photograph. [L 1988, c 262, pt of §1]
[§92F-4] Funding, services, and
other federal assistance. Where compliance
with any provision of this chapter would cause an agency to lose or be denied
funding, services, or other assistance from the federal government, compliance
with that provision shall be waived but only to the extent necessary to protect
eligibility for federal funding, services, or other assistance. [L 1992, c 118, §1]
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PART II. FREEDOM OF INFORMATION
§92F-11 Affirmative agency disclosure responsibilities. (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.
(c)
Unless the information is readily retrievable by the agency in the
form in which it is requested, an agency shall not be required to prepare a com-
pilation or summary of its records.
(d)
Each agency shall assure reasonable access to facilities for duplicat-
ing records and for making memoranda or abstracts.
(e)
The office of information practices may adopt rules, pursuant to
chapter 91, to protect agency records from theft, loss, defacement, alteration, or
deterioration and to prevent manifestly excessive interference with the discharge
of agencies’ other lawful responsibilities and functions. [L 1988, c 262, pt of §1;
am L 2010, c 100, §§1, 3; am L 2017, c 165, §1]
§92F-12 Disclosure required. (a) Any other provision in this chapter to the
contrary notwithstanding, each agency shall make available for public inspection
and duplication during regular business hours:
(1)
Rules of procedure, substantive rules of general applicability,
statements of general policy, and interpretations of general applica-
bility adopted by the agency;
(2)
Final opinions, including concurring and dissenting opinions,
as well as orders made in the adjudication of cases, except to the
extent protected by section 92F-13(1);
(3)
Government purchasing information, including all bid results,
except to the extent prohibited by section 92F-13;
(4)
Pardons and commutations, as well as directory information
concerning an individual’s presence at any correctional facility;
(5)
Land ownership, transfer, and lien records, including real prop-
erty tax information and leases of state land;
(6)
Results of environmental tests;
(7)
Minutes of all agency meetings required by law to be public;
(8)
Name, address, and occupation of any person borrowing funds
from a state or county loan program, and the amount, purpose, and
current status of the loan;
(9)
Certified payroll records on public works contracts except social
security numbers and home addresses;
(10)
Regarding contract hires and consultants employed by agen-
cies:
(A)
The contract itself, the amount of compensation;
(B)
The duration of the contract; and
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(C)
The objectives of the contract,
except social security numbers and home addresses;
(11)
Building permit information within the control of the agency;
(12)
Water service consumption data maintained by the boards of
water supply;
(13)
Rosters of persons holding licenses or permits granted by an
agency that may include name, business address, type of license
held, and status of the license;
(14)
The name, compensation (but only the salary range for employ-
ees covered by or included in chapter 76, and sections 302A-602 to
302A-639, and 302A-701, or bargaining unit (8)), job title, busin
ess
address, business telephone number, job description, education and
training background, previous work experience, dates of first an
d
last employment, position number, type of appointment, service
computation date, occupational group or class code, bargaining
unit code, employing agency name and code, department, division
,
branch, office, section, unit, and island of employment, of present or
former officers or employees of the agency; provided that this para-
graph shall not require the creation of a roster of employees; and
provided further that this paragraph shall not apply to information
regarding present or former employees involved in an undercover
capacity in a law enforcement agency;
(15)
Information collected and maintained for the purpose of mak-
ing information available to the general public; and
(16)
Information contained in or compiled from a transcript, min-
utes, report, or summary of a proceeding open to the public.
(b)
Any provision to the contrary notwithstanding, each agency shall
also disclose:
(1)
Any government record, if the requesting person has the prior
written consent of all individuals to whom the record refers;
(2)
Government records which, pursuant to federal law or a statute
of this State, are expressly authorized to be disclosed to the person
requesting access;
(3)
Government records pursuant to a showing of compelling cir-
cumstances affecting the health or safety of any individual;
(4)
Government records requested pursuant to an order of a court;
(5)
Government records pursuant to a subpoena from either house
of the state legislature; and
(6)
Information from the motor vehicle registration files, provided
that the person requesting such files shall have a legitimate reason
as determined by rules. [L 1988, c 262, pt of §1; am L 1989, c
160 §3; am L 1991, c 167, §1; am L 1992, c 185, §1; am L 1996,
c 89, §8; am L 2000, c 253, §150; am L 2004, c 92, §3; am L
2005, c 92, §3; am L 2005, c 85, §1; am L 2007, c 14, §1; am L
2012, c 133, §5]
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§92F-13 Government records; exceptions to general rule. This part shall not
require disclosure of:
(1)
Government records which, if disclosed, would constitute a
clearly unwarranted invasion of personal privacy;
(2)
Government records pertaining to the prosecution or defense of
any judicial or quasi-judicial action to which the State or any county
is or may be a party, to the extent that such records would not be
discoverable;
(3)
Government records that, by their nature, must be confidential
in order for the government to avoid the frustration of a legitimate
government function;
(4)
Government records which, pursuant to state or federal law
including an order of any state or federal court, are protected from
disclosure; and
(5)
Inchoate and draft working papers of legislative committees
including budget worksheets and unfiled committee reports; work
product; records or transcripts of an investigating committee of the
legislature which are closed by rules adopted pursuant to section
21-4 and the personal files of members of the legislature. [L 1988, c
262, pt of §1; am L 1993, c 250, §1]
§92F-14 Significant privacy interest; examples. (a) Disclosure of a govern-
ment record shall not constitute a clearly unwarranted invasion of personal
privacy if the public interest in disclosure outweighs the privacy interests of the
individual.
(b)
The following are examples of information in which the individual
has a significant privacy interest:
(1)
Information relating to medical, psychiatric, or psychological
history, diagnosis, condition, treatment, or evaluation, other than
directory information while an individual is present at such facility;
(2)
Information identifiable as part of an investigation into a pos-
sible violation of criminal law, except to the extent that disclosure is
necessary to prosecute the violation or to continue the investigation;
(3)
Information relating to eligibility for social services or welfare
benefits or to the determination of benefit levels;
(4)
Information in an agency’s personnel file, or applications,
nominations, recommendations, or proposals for public employment
or appointment to a governmental position, except:
(A)
Information disclosed under section 92F-12(a)(14); and
(B)
The following information related to employment miscon-
duct that results in an employee’s suspension or discharge:
(i)
The name of the employee;
(ii)
The nature of the employment-related
misconduct;
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(iii)
The agency’s summary of the allegations of
misconduct;
(iv)
Findings of fact and conclusions of law; and
(v)
The disciplinary action taken by the agency;
w
hen the following has occurred: the highest nonjudicial
grievance adjustment procedure timely invoked by the
employee or the employee’s representative has concluded;
a written decision sustaining the suspension or discharge
has been issued after this procedure; and thirty calendar
days have elapsed following the issuance of the decision
or, for decisions involving county police department
officers, ninety days have elapsed following the issuance
of the decision; provided that subparagraph (B) shall not
apply to a county police department officer except in a
case which results in the discharge of the officer;
(5)
Information relating to an individual’s nongovernmental em-
ployment history except as necessary to demonstrate compliance
with requirements for a particular government position;
(6)
Information describing an individual’s finances, income, assets,
liabilities, net worth, bank balances, financial history or activities,
or creditworthiness;
(7)
Information compiled as part of an inquiry into an individual’s
fitness to be granted or to retain a license, except:
(A)
The record of any proceeding resulting in the discipline of a
licensee and the grounds for discipline;
(B)
Information on the current place of employment and re-
quired insurance coverages of licensees; and
(C)
The record of complaints including all dispositions;
(8)
Information comprising a personal recommendation or
evaluation;
(9)
Social security numbers; and
(10)
Information that if disclosed would create a substantial and
demonstrable risk of physical harm to an individual. [L 1988, c 262,
pt of §1; am L 1993, c 191, §1; am L 1995, c 242, §1; am L 200
4,
c92, §4; am L 2014, c 121, §2; am L 2015, c 140, §1]
§92F-15 Judicial enforcement. (a) A person aggrieved by a denial of access to
a government record may bring an action against the agency at any time within
two years after the agency denial to compel disclosure.
(b)
In an action to compel disclosure the circuit court shall hear the
matter de novo; provided that if the action to compel disclosure is brought
because an agency has not made a record available as required by section 92F-
15.5(b) after the office of information practices has made a decision to disclose
the record and the agency has not appealed that decision within the time period
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provided by 92F-43, the decision of the office of information practices shall not
be subject to challenge by the agency in the action to compel disclosure. Opin-
ions and rulings of the office of information practices shall be admissible and
shall be considered as precedent unless found to be palpably erroneous, except
that in an action to compel disclosure brought by an aggrieved person after the
office of information practices upheld the agency’s denial of access to the person
as provided in section 92F-15.5(b), the opinion or ruling upholding the agency’s
denial of access shall be reviewed de novo. The circuit court may examine the
government record at issue, in camera, to assist in determining whether it, or any
part of it, may be withheld.
(c)
The agency has the burden of proof to establish justification for non-
disclosure.
(d)
If the complainant prevails in an action brought under this section,
the court shall assess against the agency reasonable attorney’s fees and all other
expenses reasonably incurred in the litigation.
(e)
The circuit court in the judicial circuit in which the request for the
record is made, where the requested record is maintained, or where the agency’s
headquarters are located shall have jurisdiction over an action brought under this
section.
(f)
Except as to cases the circuit court considers of greater importance,
proceedings before the court, as authorized by this section, and appeals there-
from, take precedence on the docket over all cases and shall be assigned for
hearing and trial or for argument at the earliest practicable date and expedited in
every way. [L 1988, c 262, pt of §1; am L 1989, c 192, §3; am L 2012, c 176, §4]
[§92F-15.3] Notice to the office of information practices. When filing a civil
action that is under, related to, or is affected by this chapter, a person shall notify
the office of information practices in writing at the time of the filing. The office
of information practices may intervene in the action. [L 1998, c 82, §1]
§92F-15.5 Alternative method to appeal a denial of access. (a) When an
agency denies a person access to a government record, the person may appeal
the denial to the office of information practices in accordance with rules adopted
pursuant to section 92F-42(12). A decision to appeal to the office of information
practices for review of the agency denial shall not prejudice the person’s right to
appeal to the circuit court after a decision is made by the office of information
practices.
(b) If the decision is to disclose, the office of information practices shall
notify the person and the agency, and the agency shall make the record avail-
able. If the denial of access is upheld, in whole or in part, the office of informa-
tion practices shall, in writing, notify the person of the decision, the reasons for
the decision, and the right to bring a judicial action under section 92F-15(a). [L
1989, c 192, §1]
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[§92F-16] Immunity from liability. Anyone participating in good faith in the
disclosure or nondisclosure of a government record shall be immune from any
liability, civil or criminal, that might otherwise be incurred, imposed or result
from such acts or omissions. [L 1988, c 262, pt of §1]
[§92F-17] Criminal penalties. (a) An officer or employee of an agency who
intentionally discloses or provides a copy of a government record, or any con-
fidential information explicitly described by specific confidentiality statutes, to
any person or agency with actual knowledge that disclosure is prohibited, sh
all
be guilty of a misdemeanor, unless a greater penalty is otherwise provided for by
law.
(b)
A person who intentionally gains access to or obtains a copy of a
government record by false pretense, bribery, or theft, with actual knowledge
that access is prohibited. or who intentionally obtains any confidential informa-
tion by false pretense, bribery, or theft, with actual knowledge that it
is prohibited [by] a confidentiality statute, shall be guilty of a misdemeanor.
[L 1988, c 262, pt of §1]
§92F-18 Agency implementation. (a
) Each agency shall:
(1)
Issue instructions and guidelines necessary to effectuate this
chapter; and
(2)
Take steps to assure that all its employees and officers respon-
sible for the collection, maintenance, use, and dissemination of gov-
ernment records are informed of the requirements of this chapter.
(b)
Each agency shall compile a public report describing the records it
routinely uses or maintains using forms prescribed by the office of information
practices. The public reports shall be filed with the office of information prac-
tices on or before December 31, 1994. The public reports shall include:
(1)
The name and location of each set of records;
(2)
The authority under which the records are maintained;
(3)
The categories of individuals for whom records are maintained;
(4)
The categories of information or data maintained in the records;
(5)
The categories of sources of information in the records;
(6)
The categories of uses and disclosures made of the records;
(7)
The agencies and categories of persons outside of the agency
which routinely use the records;
(8)
The records routinely used by the agency which are maintained
by:
(A)
Another agency; or
(B)
A person other than an agency;
(9)
The policies and practices of the agency regarding storage, re-
trievability, access controls, retentions, and disposal of the informa-
tion maintained in records;
(10)
The title, business address, and business telephone number of
the agency officer or officers responsible for the records;
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(11)
The agency procedures whereby an individual may request ac-
cess to records; and
(12)
The number of written requests for access within the preceding
year, the number denied, the number of lawsuits initiated against the
agency under this part, and the number of suits in which access was
granted.
(c)
Each agency shall supplement or amend its public report, or file a
new report, on or before July 1 of each subsequent year, to ensure that the
information remains accurate and complete. Each agency shall file the supple-
mental, amended, or new report with the office of information practices, which
shall make the reports available for public inspection. [L 1988, c 262, pt of §1;
am L 1989, c 192, §4; am L 1991, c 167, §2; am L 1992, c 118, §2; am L 1993, c
57, §1]
§92F-19 Limitations on disclosure of government records to other agencies.
(a)
No agency may disclose or authorize disclosure of government records to
any other agency unless the disclosure is:
(1)
Necessary for the performance of the requesting agency’s duties
and functions and is also:
(A)
Compatible with the purpose for which the information was
collected or obtained; or
(B)
Consistent with the conditions or reasonable expectations of
use and disclosure under which the information was provided;
(2)
To the state archives for the purposes of historic preservation,
administrative maintenance, or destruction;
(3)
To another agency, another state, or the federal government, or
foreign law enforcement agency or authority, if the disclosure is:
(A)
For the purpose of a civil or criminal law enforcement activ-
ity authorized by law; and
(B)
Pursuant to:
(i)
A written agreement or written request, or
(ii)
A verbal request, made under exigent circumstances, by
an officer or employee of the requesting agency whose iden-
tity has been verified, provided that such request is promptly
confirmed in writing;
(4)
To a criminal law enforcement agency of this State, another
state, or the federal government, or a foreign criminal law enforce-
ment agency or authority, if the information is limited to an indi-
vidual’s name and other identifying particulars, including present
and past places of employment;
(5)
To a foreign government pursuant to an executive agreement,
compact, treaty, or statute;
(6)
To the legislature, or a county council, or any committee or
subcommittee thereof;
(7)
Pursuant to an order of a court of competent jurisdiction;
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62
(8)
To authorized officials of another agency, another state, or the
federal government for the purpose of auditing or monitoring an
agency program that receives federal, state, or county funding;
(9)
To the offices of the legislative auditor, the legislative reference
bureau, or the ombudsman of this State for the performance of their
respective functions;
(10)
To the department of human resources development, county
personnel agencies, or line agency personnel offices for the
performance of their respective duties and functions, including
employee recruitment and examination, classification and
compensation reviews, the administration and auditing of personnel
transactions, the administration of training and safety, workers’
compensation, and employee benefits and assistance programs, and
for labor relations purposes; or
(11)
Otherwise subject to disclosure under this chapter.
(b)
An agency receiving government records pursuant to subsection
(a)
shall be subject to the same restrictions on disclosure of the records as the
originating agency. [L 1988, c 262, pt of §1; am L 1993, c 250, §2; am L 1994,
c, 56, §21]
PART
III. DISCLOSURE OF PERSONAL RECORDS
[§92F-21] Individual’s access to own personal record. Each agency that
maintains any accessible personal record shall make that record available to the
individual to whom it pertains, in a reasonably prompt manner and in a reason-
ably intelligible form. Where necessary the agency shall provide a translation
into common terms of any machine readable code or any code or abbreviation
employed for internal agency use. [L 1988, c 262, pt of §1]
§92F-21.5 REPEALED. L 1990, c 250, §4.
§92F-22 Exemptions and limitations on individual access. An agency is not
required by this part to grant an individual access to personal records, or infor-
mation in such records:
(1)
Maintained by an agency that performs as its or as a principal
function any activity pertaining to the prevention, control, or reduc-
tion of crime, and which consist of:
(A)
Information or reports prepared or compiled for the purpose
of criminal intelligence or of a criminal investigation, including
reports of informers, witnesses, and investigators; or
(B)
Reports prepared or compiled at any stage of the process
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63
of enforcement of the criminal laws from arrest or indictment
through confinement, correctional supervision, and release from
supervision.
(2)
The disclosure of which would reveal the identity of a source
who furnished information to the agency under an express or im-
plied promise of confidentiality.
(3)
Consisting of testing or examination material or scoring keys
used solely to determine individual qualifications for appointment
or promotion in public employment, or used as or to administer a
licensing examination or an academic examination, the disclosure
of which would compromise the objectivity, fairness, or effective-
ness of the testing or examination process.
(4)
Including investigative reports and materials, related to an up-
coming, ongoing, or pending civil or criminal action or administra-
tive proceeding against the individual.
(5)
Required to be withheld from the individual to whom it pertains
by statute or judicial decision or authorized to be so withheld by
constitutional or statutory privilege. [L 1988, c 262, pt of §1; am L
1993, c 250, §3]
92F-23 Access to personal record; initial procedure. Upon the request of an
individual to gain access to the individual’s personal record, an agency shall
permit the individual to review the record and have a copy made within ten
working days following the date of receipt of the request by the agency unless
the personal record requested is exempted under section 92F-22. The ten-day
period may be extended for an additional twenty working days if the agency pro-
vides to the individual, within the initial ten working days, a written explanation
of unusual circumstances causing the delay. [L 1988, c 262, pt of §1; am L 2000,
c 254, §1]
[§92F-24] Right to correct personal record; initial procedure. (a) An indi-
vidual has a right to have any factual error in that person’s personal record cor-
rected and any misrepresentation or misleading entry in the record amended by
the agency which is responsible for its maintenance.
(b)
Within twenty business days after receipt of a written request to cor-
rect or amend a personal record and evidence that the personal record contains
a factual error, misrepresentation, or misleading entry, an agency shall acknowl-
edge receipt of the request and purported evidence in writing and promptly:
(1)
Make the requested correction or amendment; or
(2)
Inform the individual in writing of its refusal to correct or
amend the personal record, the reason for the refusal, and the agen-
cy procedures for review of the refusal. [L 1988, c 262, pt of §1]
§92F-25 Correction and amendment; review procedures. (a) Not later than
thirty business days after receipt of a request for review of an agency refusal to
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allow correction or amendment of a personal record, the agency shall make a
final determination.
(b)
If the agency refuses upon final determination to allow correction or
amendment of a personal record, the agency shall so state in writing and:
(1)
Permit, whenever appropriate, the individual to file in the record
a concise statement setting forth the reasons for the individual’s dis-
agreement with the refusal of the agency to correct or amend it; and
(2)
Notify the individual of the applicable procedures for obtaining
appropriate judicial remedy. [L 1988, c 262, pt of §1; am L 1989, c
192, §6]
§92F-26 Rules. The office of information practices shall adopt rules, pursuant
to chapter 91, establishing procedures necessary to implement or administer this
part, which the agencies shall follow, in order to ensure uniformity among state
and county agencies. [L 1988, c 262, pt of §1; am L 1989, c 192, §7; am L 2017,
c 165, §2]
§92F-27 Civil actions and remedies. (a
) An individual may bring a civil ac-
tion against an agency in a circuit court of the State whenever an agency fails
to comply with any provision of this part, and after appropriate administrative
remedies under sections 92F-23, 92F-24, and 92F-25 have been exhausted.
(b)
Opinions and rulings of the office of information practices shall
be admissible and shall be considered as precedent unless found to be palpably
erroneous, except that the opinion or ruling upholding the agency’s denial of
access to the aggrieved person shall be reviewed de novo. The circuit court may
examine the record at issue, in camera, to assist in determining whether it, or any
part of it, may be withheld.
(c)
In any action brought under this section the court may order the
agency to correct or amend the complainant’s personal record, to require any
other agency action, or to enjoin such agency from improper actions as the court
may deem necessary and appropriate to render substantial relief.
(d)
In any action brought under this section in which the court deter-
mines that the agency knowingly or intentionally violated a provision of this
part, the agency shall be liable to the complainant in an amount equal to the sum
of:
(1)
Actual damages sustained by the complainant as a result of the
failure of the agency to properly maintain the personal record, but in
no case shall a individual complainant entitled to recovery
receive
less than the sum of $1,000; and
(2)
The costs of the action together with reasonable attorney’s fees
as determined by the court.
(e)
The court may assess reasonable attorney’s fees and other litigation
costs reasonably incurred against the agency in any case in which the complain-
ant has substantially prevailed, and against the complainant where the charges
brought against the agency were frivolous.
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(f)
An action may be brought in the circuit court where the complainant
resides, the complainant’s principal place of business is situated, or the com-
plainant’s relevant personal record is situated. No action shall be brought later
than two years after notification of the agency denial, or where applicable, the
date of receipt of the final determination of the office of information
practices. [L 1988, c 262, pt of §1; am L 1989, c 192, §8; am L 2012, c 176, §5]
§92F-27.5 Alternative method to appeal a denial of access. (a) When an agen-
cy denies an individual access to that individual’s personal record, the individual
may appeal the denial to the office of information practices in accordance with
rules adopted pursuant to section 92F-42(12). A decision to appeal to the office
of information practices for review of the agency denial shall not prejudice the
individual’s right to appeal to the circuit court after a decision is made by the
office of information practices.
(b)
If the decision is to disclose, the office of information practices shall
notify the individual and the agency, and the agency shall make the record avail-
able. If the denial of access is upheld, in whole or in part, the office of informa-
tion practices shall, in writing, notify the individual of the decision, the reasons
for the decision, and the right to bring a judicial action under section 92F-27. [L
1989, c 192, §2]
[§92F-28] Access to personal records by order in judicial or administrative
proceedings; access as authorized or required by other law. Nothing in this part
shall be construed to permit or require an agency to withhold or deny access to a
personal record, or any information in a personal record:
(1)
When the agency is ordered to produce, disclose, or allow ac-
cess to the record or information in the record, or when discovery of
such record or information is allowed by prevailing rules of discov-
ery or by subpoena, in any judicial or administrative proceeding; or
(2)
Where any statute, administrative rules, rule of court, judicial
decision, or other law authorizes or allows an individual to gain ac-
cess to a personal record or to any information in a personal record
or requires that the individual be given such access. [L 1988, c 262,
pt of §1]
PART IV. OFFICE OF INFORMATION PRACTlCES; DUTIES
§92F-41 Office of information practices; established. (a) There is established
an office of information practices within the department of accounting and
general services for administrative purposes; provided that:
(1)
Any quasi-judicial functions of the office of information
practices shall not be subject to the approval, review, or control
of the comptroller; and
(2)
The comptroller shall not have the power to supervise or
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control the office of information practices in the exercise of its
functions, duties, and powers under section 92F-42.
(b)
The governor shall appoint a director of the office of
information practices to be its chief executive officer and who shall be exempt
from chapter 76.
(c)
All powers and duties of the office of information
practices are vested in the director and may be delegated to any other officer or
employee of the office.
(d)
The director may employ any other personnel that are
necessary, including attorneys and clerical staff. The office of information
practices shall follow and be subject to all applicable personnel laws. All
personnel of the office of information practices shall be employed without
regard to chapter 76.
(e)
The office of information practices shall make direct
communications with the governor and legislature. [L1988, c 262, pt of §1; am
L 1989, c 192, §9; am L 1998, c 137 §4; am L 2000, c 253, §150; am L 2015,
c 92, §4]
§92F-42 Powers and duties of the office of information practices. T
he direc-
tor of the office of information practices:
(1)
Shall, upon request, review and rule on an agency denial of
access to information or records, or an agency’s granting of access;
provided that any review by the office of information practices shall
not be a contested case under chapter 91 and shall be optional and
without prejudice to rights of judicial enforcement available unde
r
this chapter;
(2)
Upon request by an agency, shall provide and make public
advisory guidelines, opinions, or other information concerning that
agency’s functions and responsibilities;
(3)
Upon request by any person, may provide advisory opinions or
other information regarding that person’s rights and the functions
and responsibilities of agencies under this chapter;
(4)
May conduct inquiries regarding compliance by an agency and
investigate possible violations by any agency;
(5)
May examine the records of any agency for the purpose of
paragraphs (4) and (18) and seek to enforce that power in the courts
of this State;
(6)
May recommend disciplinary action to appropriate officers of an
agency;
(7)
Shall report annually to the governor and the state legislature
on the activities and findings of the office of information practices,
including recommendations for legislative changes;
(8)
Shall receive complaints from and actively solicit the comments
of the public regarding the implementation of this chapter;
(9)
Shall review the official acts, records, policies, and procedures
of each agency;
(10)
Shall assist agencies in complying with the provisions of this
chapter;
(11)
Shall inform the public of the following rights of an individual
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and the procedures for exercising them:
(A)
The right of access to records pertaining to the individual;
(B)
The right to obtain a copy of records pertaining to the indi-
vidual;
(C)
The right to know the purposes for which records pertaining
to the individual are kept;
(D)
The right to be informed of the uses and disclosures of
records pertaining to the individual;
(E)
The right to correct or amend records pertaining to the indi-
vidual; and
(F)
The individual’s right to place a statement in a record per-
taining to that individual;
(12)
Shall adopt rules that set forth the administrative appeals
structure which provides for:
(A)
Agency procedures for processing records requests;
(B)
A direct appeal from the division maintaining the record;
and
(C)
Time limits for action by agencies;
(13)
Shall adopt rules that set forth the fees and other charges that
may be imposed for searching, reviewing, or segregating disclos-
able records, as well as to provide for a waiver of fees when the
public interest would be served;
(14)
Shall adopt rules which set forth uniform standards for the
records collection practices of agencies;
(15)
Shall adopt rules that set forth uniform standards for disclosure
of records for research purposes;
(16)
Shall have standing to appear in cases where the provisions of
this chapter or part I of chapter 92 are called into question;
(17)
Shall adopt, amend, or repeal rules pursuant to chapter 91 nec-
essary for the purposes of this chapter; and
(18)
Shall take action to oversee compliance with part I of chapter
92 by all state and county boards including:
(A)
Receiving and resolving complaints;
(B)
Advising all government boards and the public about com-
pliance with chapter 92; and
(C)
Reporting each year to the legislature on all complaints
received pursuant to section 92-1.5. [L 1988, c 262, pt of §1; am
L 1989, c 192, §10; am L 1998, c 137, §5; am L 2015, c 92, §5]
[§92F-43] Agency appeal of a decision by the office of information
practices. (a) An agency may not appeal a decision by the office of
information practices made under this chapter or part I of chapter 92,
except as provided in this section. Within thirty days of the date of the
decision, an agency may seek judicial review of a final decision rendered
by the office of information practices under this chapter or part I of
chapter 92, by filing a complaint to initiate a special proceeding in the
circuit court of the judicial circuit in the State where:
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68
(1)
The request for access to a record was made;
(2)
The act the office determined was prohibited under part I of chapter
92 occurred; or
(3)
The agency’s principal place of business is located.
(b)
The agency shall give notice of the complaint to the office of information
practices and the person who requested the decision for which the agency seeks
judicial review by serving a copy of the complaint on each; provided that the of-
fice of information practices and the person who requested the decision shall not
be required to participate in the proceeding; and provided further that the co
urt
shall proceed to review the decision pursuant to the rules applicable to a special
proceeding, upon the expiration of time that an answer to the complaint would
otherwise need to be filed under the rules of court by the office of informati
on
practices or the person upon whom the complaint was served. The office of
information practices or the person who requested the decision may intervene in
the proceeding.
(c)
Within thirty days of service of the complaint, the office of information prac-
tices shall file a certified copy of the record that it compiled to make its decision
in the circuit court and mail a copy of the index to that record to the appealing
agency. The circuit court’s review shall be limited to the record th
at was before
the office of information practices when it rendered the decision, unless the cir-
cuit court finds that extraordinary circumstances justify discovery and admission
of additional evidence. The circuit court shall uphold a decision of the office of
information practices, unless the circuit court concludes that the decision
was
palpably erroneous. [L 2012, c 176, §1]
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