Below are suggestions when following-up with agencies in response to common justifications for denying access to government records under the UIPA. Not every request will raise all the concerns presented below. This language is provided only as a guide for issues to consider after receiving a denial.
Please provide the requested records as they do not fall within any exemption for personal [health/financial/employment] information. If, however, any such personal information is found in a record, please redact such information as necessary and release the requested records as redacted.
While the UIPA allows an agency to withhold certain information where it concerns an individual’s significant privacy interest, the agency must balance that privacy interest against the public interest in disclosure. OIP Op. Ltr. No. 07-08 at 4. OIP has opined that there is a “public interest in the disclosure of 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.”
Please specify what the significant privacy interest is here under HRS § 92F-14(b). The agency may only withhold information related to the significant privacy interest, not the entire document. In most instances, privacy concerns may be resolved by redaction of names and other personally identifying information.
The exceptions for disclosure provided in the UIPA are not mandatory withholding requirements. An agency has the authority to disclose records at its discretion, even when the privacy exception may allow it to withhold certain documents. OIP Op. Ltr. No. 05‑03 at 6. The UIPA was enacted with the intent that there be a presumption of openness, with government records only being withheld when absolutely necessary.
Please specify the basis for asserting the frustration exception. That exception covers a wide range of doctrines and therefore requires specificity for the requester to understand the denial.
The frustration exception is limited in its application. OIP has explained the need for an agency to justify how releasing requested information would potentially frustrate the agency’s function. OIP Op. Ltr. No. F17-05 at 11 (“An agency cannot use the presence of some protected information – for instance, cost and overhead information – to justify a wholesale redaction of all information.”); OIP Op. Ltr. No. 02-01 at 18 (“application of the UIPA’s exceptions should not rest upon tenuous, conclusory, or speculative arguments.”).
OIP is “constrained to construe the UIPA’s ‘frustration of legitimate government function’ exception narrowly, and extend its application only upon a clear showing that the disclosure of a particular government record would frustrate or impair a legitimate government function.” OIP Op. Ltr. No. 91-15 at 11-12. Any documents being withheld for frustration of purpose thus must be redacted as necessary and released to the extent permitted by law. If this agency continues to refuse release of the records at issue, please provide a full justification, explaining how releasing these documents would impair the agency’s functions.
The exceptions for disclosure provided by the UIPA are not mandatory withholding requirements. 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. Government records should only be withheld when absolutely necessary.
[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.(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.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.