THIRTIETH LEGISLATURE, 2019
STATE OF HAWAII
A BILL FOR AN ACT
relating to government records.
ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. In 1988, the legislature established the uniform information practices act, chapter 92F, Hawaii Revised Statutes (UIPA). The underlying purposes and policies of the UIPA include: promoting the public interest in disclosure; providing for accurate, relevant, timely, and complete government records; enhancing government accountability through a general policy of access to government records; making government accountable to individuals in the collection, use, and dissemination of information; and balancing the individual privacy interest and the public access interest, allowing access unless it would constitute a clearly unwarranted invasion of personal privacy.
The UIPA requires state and county government agencies, including the legislature and the judiciary's administrative offices, to allow, upon request, public access to government records, unless the records qualify for one of five UIPA exceptions to disclosure. Government records subject to the UIPA include predecisional and deliberative memoranda and correspondence transmitted within or between government agencies, such as staff recommendations, drafts, and the exchange of ideas and opinions before a decision or policy is finalized and made public. In December 2018, the Hawaii supreme court, in a 3-2 decision in Peer News LLC v. City & County of Honolulu, No. SCAP-16-0000114, 2018 WL 6715464 (Haw. Dec. 21, 2018), held that a deliberative process privilege is not consistent with the legislative intent of the UIPA and that predecisional and deliberative government records cannot be withheld from public access under an exception.
The legislature finds that the Hawaii supreme court's dissenting opinion in Peer News LLC provides a more accurate assessment of the legislative intent of the UIPA and correctly concludes that the legislative intent of the UIPA is consistent with a deliberative process privilege. The dissenting opinion is more aligned with the legislative intent of the UIPA, as compared to the office of information practices' expansive interpretation and the majority opinion's overly narrow reading of the UIPA. This Act reflects the middle-ground approach taken by the dissenting opinion that is consistent with the legislative intent behind the UIPA.
The purpose of this Act is to:
(1) Clarify that a deliberative process privilege is consistent with the legislative intent of the UIPA; and
(2) Specify that the exception for government records that are confidential in nature include intra-agency and inter-agency memoranda and correspondence that qualify for the deliberative process privilege.
SECTION 2. Section 92F-13, Hawaii Revised Statutes, is amended to read as follows:
"§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[
;] including intra-agency and
inter-agency memoranda and correspondence that qualify for the deliberative
process privilege; provided that the agency's need to protect these records
outweighs the public interest in disclosure;
(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."
SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 4. This Act shall take effect upon its approval.
Government Records; Public Access; Uniform Information Practices Act
Clarifies that a deliberative process privilege is consistent with the legislative intent of the uniform information practices act. Specifies that the confidential disclosure exception includes intra- and inter-agency memoranda and correspondence that qualify for the deliberative process privilege.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.