Please provide further clarification regarding the assertion that the agency does not maintain the records requested, including a more detailed explanation regarding the whereabouts of the records, or clarification that no such record is maintained by this agency or any other related agency. If this agency searched for records, but could not find any information responsive to the request, please explain the steps taken to search. If another unit within this agency has a copy of the requested information, the request cannot be denied, but must be promptly forwarded to the appropriate unit. HAR § 2-71-13(d). Forwarding a request to another unit in the agency is not appropriate when the other unit is subordinate to the unit that originally received the request. OIP Op. Ltr. No. 00-03 at 10. If the records exist at another agency, and this agency does not have a copy, this agency must provide contact information for the other agency. HAR § 2‑71‑14(c). A request also cannot be denied simply because it is in the possession of a government contractor or other agency. The UIPA is intended to “sweep as broadly as possible” and to include information “controlled in any way by an agency.” OIP Op. Ltr. No. 95‑15 at 1-2. Control “refers to the power or authority to manage, direct, or oversee, or to exercise restraining or directing influence over, and also relates to authority over what is not in one’s physical possession.” OIP Op. Ltr. No. 97-02 at 4. If this agency has control over the record in any way, it is obliged to obtain access and provide a copy to the requester. OIP Op. Ltr. No. 95-15 at 7.

Record Is Not Maintained in the Format Requested

If the agency has records on the requested subject but does not maintain them in the format requested, please provide related information or guidance regarding what is available. According to OIP, “the agency must generally provide a copy of that government record in the format requested by the public, unless doing so might significantly risk damage, loss, or destruction of the original record.”  E.g., OIP Op. Ltr. No. 01-03 at 9-10 (database of inmate data must be disclosed in requested format). OIP has further opined that

[a]n agency must compile information in response to a UIPA request if it is “readily retrievable.” Section 92F-11(c), HRS, states that, “[u]nless the information is readily retrievable in the form in which it is requested, an agency shall not be required to prepare a compilation or summary of its records.” Thus, even if an agency does not maintain a specific list of information requested, the agency would be required to compile a list if it is readily retrievable given the agency’s programming capabilities.

OIP Op. Ltr. No. 10-02 at 3. Please provide further information for the records requested, such as a more detailed explanation regarding any alternative format they may be stored in, or clarification that no such record is maintained by this agency or any other related agency.

Pending Litigation

Pending litigation is not a reason to withhold the entirety of this request.  OIP Op. Ltr. No. 92-05 at 2 (“While the UIPA does not require the disclosure of government records that would not be discoverable in a civil action to which the agency is or may be a party (section 92F-13(2), Hawai`i Revised Statutes), a fear that a record may be relevant to future litigation is not, in and of itself, a valid exception to required agency disclosure under the UIPA.”).  “[A] government agency may not keep an otherwise public document confidential for fear that it may aid a litigant in a lawsuit against the government.”  Id.at 8. The exceptions for disclosure provided by the UIPA are not mandatory.  An agency has the authority to disclose records at its discretion, even when an exception may allow it to withhold certain documents.  OIP Op. Ltr. No. 04-12 at 3 n.3.  The UIPA was enacted with the intent that there be a presumption of openness, with government records only being withheld when absolutely necessary.

Pending Investigation

Please explain what harm would come to the pending investigation if the records were to disclosed.  If there is no longer a pending investigation, or there is no discernable harm likely to be caused, the records must be disclosed. There is no blanket exemption for disclosure of law enforcement materials.  E.g., OIP Op. Ltr. No. 95-21 at 9 n.2; OIP Op. Ltr. No. 89-17 at 5.  To withhold investigation documents, the agency must show that there is a pending or prospective law enforcement proceeding and a discernible harm to that proceeding if the documents are disclosed. E.g., OIP Op. Ltr. No. 94-03 at 16-17.  In most instances, documents provided to or received from the investigation’s target (e.g., the formal charges and the target’s response to the charges) would not raise a discernible harm if disclosed.  E.g., OIP Op. Ltr. No. 91-09 at 7; OIP Op. Ltr. No. 90-39 at 7; OIP Op. Ltr. No. 90-36 at 6-9; OIP Op. Ltr. No. 89-17 at 7-8. The exceptions for disclosure provided by the UIPA are not mandatory.  An agency has the authority to disclose records at its discretion, even when the frustration exception may allow it to withhold certain documents. OIP Op. Ltr. No. 04-12 at 3 n.3. The UIPA was enacted with the intent that there be a presumption of openness, with government records only being withheld when absolutely necessary.

Public Safety

Please provide a more detailed explanation of how releasing the requested documents would endanger public safety.  If an agency chooses to withhold documents for public safety reasons, then the agency bears the burden of proof to establish the facts that support that claim.  Likelihood of confusion or questions from the public are not sufficient to withhold documents that are otherwise factual in nature. OIP Op. Ltr. No. F18-02 (agency cannot withhold tsunami inundation maps that are essentially factual; the solution to public confusion is education). The exceptions for disclosure provided by the UIPA are not mandatory.  An agency has the authority to disclose records at its discretion, even when the frustration exception may allow it to withhold certain documents. OIP Op. Ltr. No. 04-12 at 3 n.3. The UIPA was enacted with the intent that there be a presumption of openness, with government records only being withheld when absolutely necessary.

Confidential Business Information

The confidential business information exception is limited in scope.  The agency must individually analyze each situation and cannot solely rely on a third party opinion that particular information is confidential business information.  OIP Op. Ltr. No. F17-01 at 7. “The inquiries regarding whether records constitute confidential commercial and financial information are fact-specific. . . .  [A]n agency [may] withhold records when disclosure would: “(1) impair government’s ability to obtain information in the future; or (2) . . . cause substantial harm to the competitive position of the submitter of information.” Id. at 7-8 (internal citations omitted). This exception exists only to protect truly confidential business information that would not be voluntarily submitted to the government.  Information that a business would customarily release, such as the number of employees it has, contact information, business address, or the year the company was established is more often than not, information that cannot be withheld under the confidential business information exception.  OIP Op. Ltr. No. 05-13. Please provide an explanation with greater detail regarding what type of confidential information is contained in the record.  To the extent feasible, redact any information that would reasonably constitute confidential business information and provide the segregated record. The exceptions for disclosure provided by the UIPA are not mandatory.  An agency has the authority to disclose records at its discretion, even when the frustration exception may allow it to withhold certain documents. OIP Op. Ltr. No. 04-12 at 3 n.3. The UIPA was enacted with the intent that there be a presumption of openness, with government records only being withheld when absolutely necessary.

Trade Secrets

It is unclear why the requested information would be considered a trade secret.  Please provide additional details regarding how the records qualify as a trade secret consistent with OIP opinions.  To the extent feasible, redact any information that would reasonably constitute trade secrets and provide the segregated record. “In order for information to constitute a ‘trade secret,’ it must be shown that the holder of this information made ‘efforts that are reasonable under the circumstances to maintain its secrecy.’”  OIP Op. Ltr. No. 97-04 at 9. The following factors should be considered in determining whether information constitutes a trade secret:

(1) the extent to which the information is known outside of [the] business; (2) the extent to which it is known by employees and others involved in [the] business; (3) the extent of measures taken by [the business] to guard the secrecy of the information; (4) the value of the information to [the business] and to [its] competitors; (5) the amount of effort or money expended by [the business] in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.

OIP Op. Ltr. No. F17-01 at 10-11.

Costs Are Prohibitively High

The estimated costs for the request submitted are higher than I am able to pay.  When the Legislature permitted agencies to charge fees, it did not intend that the fees “be a vehicle to prohibit access to public records,” rather the Legislature expected that OIP would “move aggressively against any agency that uses such charges to chill the exercise of first amendment rights.”  H. Stand. Comm. Rep. 342-88, 1988 House Journal at 972 (emphasis added). Executive Memorandum 17-03 further emphasizes the importance of reducing costs:

In addition to the fee waivers required by the OIP’s rules, executive agencies should take practical actions to reduce the costs of complying with UIPA requests. These actions include but are not limited to:

Disclosing government records in electronic form rather than paper form when that would reduce copying costs;

Working with the requester(s) to narrow the scope of complex record requests to reduce the amount of agency response time and effort that detract from personnel’s normal assigned duties;

Working with the requester on the timeline for responding to a request where doing so will help reduce the cost of responding;

Working with the requester on finding ways to decrease the cost of complying with the request.

EM No. 17-03 (Aug. 25, 2017). Please provide guidance on how I can amend my request to lower the cost.  Alternatively, providing information regarding how the records are stored and what records exist may also help to narrow my request.  As work is done for this request, please maintain records of chargeable time spent and tasks completed.