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 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. 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 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 nondisclosure.

(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 therefrom, 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]

 

Law Journals and Reviews

 

2013 Law and Administrative Rules Governing Appeal Procedures of Hawaii's Office of Information Practices. 36 UH L. Rev. 271 (2014).

 

Case Notes

 

"Denial of access" in subsection (a) synonymous with "withholding of access"; access is withheld by agency's non-response, claim that request is not specific enough, imposition of unauthorized or excessive fees as condition of access, or claim it does not have records sought. 83 H. 378, 927 P.2d 386.

Plaintiff was "person aggrieved" and had standing under this section where plaintiff requested access to government records and access to requested records was withheld. 83 H. 378, 927 P.2d 386.

Where the intermediate court of appeals (ICA) dismissed plaintiff's first appeal sua sponte, without prejudice to the defendant filing a second appeal after the circuit court filed an amended judgment, the ICA erred in determining that plaintiff's request for fees and costs, which plaintiff filed after prevailing in the second appeal, was untimely. 134 H. 16, 332 P.3d 159 (2014).

Where the parties had completely briefed the case during the first appeal, before the intermediate court of appeals (ICA) dismissed that appeal because of an error in the circuit court's judgment, the ICA abused its discretion in refusing to consider plaintiff's request for attorneys' fees and costs following the resolution of the second appeal. 134 H. 16, 332 P.3d 159 (2014).

 

 

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