Hawaii Freedom of Information Act
What is the Hawaii Freedom of Information Act?
The Freedom of Information Act (FOIA) permits the general public to inspect or copy public records from the federal government online or in writing, including foreign nationals, military, and civilian employees acting as private individuals. All states in the United States have an adaptation of the federal FOIA. In Hawaii, the FOIA is the Uniform Information Practices Act (UIPA). HUIPA was established in 1975 and is codified in Chapter 92F of the Hawaii Revised Statutes. The state legislature established the UIPA to push through its policy of conducting government business as openly as possible while protecting the privacy rights embodied in the state constitution. Per UIPA, individuals have the right to request access to state agency records or information except for records that are restricted from disclosure by exemptions.
The underpinning purposes and policies of the UIPA are to:
- To promote government accountability
- To promote public interest in disclosure of public records
- To make provisions for accurate, timely, relevant, and complete records
- To balance public interest and individual privacy interest, permitting access unless disclosure would constitute an unwarranted invasion of personal privacy.
- To make the government accountable to individuals in the collection, dissemination, and use of information relating to them.
The Legislature created the Hawaii Office of Information Practices (OIP) to administer the UIPA. OIP offers a uniform interpretation, guidance, and training on the UIPA to almost all state and county agencies and boards in Hawaii, as well as to the general public. OIP offers advice and assistance on issues relating to the public's right of access to government documents and meetings, as well as training to assist agencies in complying with the UIPA.
What is Covered Under the Hawaii Freedom of Information Act?
The Hawaii Uniform Information Practices Act covers all "government records" of all state and county governments agencies. Per Section 92F-11 of the Hawaii Revised Statutes, all government records are open to public inspection unless access is restricted by law. The UIPA defines an agency to broadly encompass all county and state government units, including corporations and any establishments owned, managed, operated by, or on behalf of the state or a county. This covers the judicial, legislative, and executive branches of state and county government; however, it excludes the nonadministrative functions of the judiciary. Hence, court records related to the adjudication of a legal matter are not covered by the UIPA. Such court records are governed by court rules.
According to Section 92F-11 of the Hawaii Revised Statute, government record includes any information maintained by an agency at the state or county level that is recorded in any physical form (written, auditory, visual, electronic, or other physical forms). Hawaii defines "maintained" to mean any information physically possessed or administratively controlled by an agency. A state or county agency also has administrative control over a record if it possesses the right to gain access to the record.
For instance, if an agency contracts with a private entity and has the right to review the records held by the entity under the contract, such records would be deemed government records, even if they are not physically in the agency's office. On the other hand, a record physically in the agency's office may not be considered a government record when it is controlled or held by an employee personally and not in a capacity as an agency employee.
The UIPA requires agencies to make government records accessible for inspection and copying unless the agency can demonstrate an exemption from disclosure under H.R.S. 92F-13 authorizes the agency to limit or prohibit access to the document. Per Section 92F-12 of the Hawaii Revised Statutes, the following specific categories of records must always be disclosed by agencies except where legitimate exemptions exist:
- Agency general policies and rules
- Final opinions and adjudicated orders except as protected under Section 92F-13(1) of the Hawaii Revised Statutes.
- Information about government purchasing, including any bid results except as limited by Section 92F-13 of the Hawaii Revised Statutes
- Commutations and pardons, and inmates' directory information
- Land ownership, transfer, and lien records, including real property tax information and state land leases
- Results of environmental tests
- Agency meeting minutes required to be made public by law
- State and county loan program information
- Certified payroll records on public works contracts, without Social Security numbers
- Agency contract hires and consultants' contracts, without Social Security numbers
- Information on building permits
- Water service consumption data maintained by the boards of water supply
- Rosters of licensee or permit holders
- General employment information for current and previous agency officers and employees, except for undercover law enforcement employees
- Information collated for the purpose of making information available to the public
- Information from the transcript, report, minutes, or summary of a public proceeding
Also, agencies must always disclose:
- Any record for which the requester has obtained the prior written consent of all individuals to whom the record concerns
- Records expressly authorized for disclosure to the person requesting access by federal or state law
- Records demonstrating compelling circumstances affecting the health or safety of any individual
- Records requested by court order
- Records subpoenaed by either house of the state legislature
- Motor vehicle registration information when the requester has a legitimate reason for the request
What Records are Exempt from the Freedom of Information Act in Hawaii?
Under Section 92F-13 of the Hawaii Revised Statutes, records must be made available to requesters if they are covered under the category of public records that agencies must always make accessible, except if one or more of the five stipulated exceptions apply. In instances where an exemption only applies to a section of a record, the agency is required to provide access to the remaining sections of the record.
When an exception covers a public record, the record custodian may withhold the record but is not restricted by the UIPA from disclosing it. However, the UIPA mandates that when an agency wants to disclose a record that could be withheld, the agency must consult with its attorney as to whether the record should or must be withheld under another law or the state or federal constitutions.
The exceptions to the disclosure set forth under UIPA are:
The Privacy Exception
Pursuant to H.R.S. § 92F-13(1), to withhold access to a public record for an unwarranted invasion of privacy, the agency must prove that:
- An individual exists with a significant privacy interest in the information contained in the record; and
- Significant privacy interest is not outweighed by public interest in disclosure
Per Section 92F-14 of the H.R.S., the UIPA lists specific instances where individuals may have a significant privacy interest in a record. These include:
- Medical condition, treatment, and history
- Criminal law investigation, except for instances where disclosure is required to prosecute or continue with an investigation
- Eligibility for social services or welfare benefits
- Public employment personnel file information, except where information stipulated to be disclosed under Section 92F-12(a)(14) and employee misconduct information for discharged or suspended employees, or if a county police officer is discharged
- Nongovernmental employment history other than when the information qualifies a government employee for a position
- Financial information of that individual
- Professional and vocational licensee qualification except for certain discipline information, current employment information and insurance coverage, and complaints and dispositions
- Social Security numbers
- Any information whose disclosure may create a demonstrable and substantial risk of physical harm to an individual
The Litigation Privilege Exception
Per H.R.S. § 92F-13(2), an agency may deny access to a record if the information contained in the record is protected by a litigation privilege in a lawsuit or quasi-judicial administrative proceeding involving the state or any county. This is an exception that prohibits a party to a suit against the state or a county from using the UIPA for the purpose of gaining an unfair advantage.
The Frustration Exception
Under H.R.S. § 92F-13(3), an agency may prohibit access to certain records that, by their nature, must remain confidential for the agency to prevent the frustration of legitimate government functions. Examples of such records include:
- Law enforcement records
- Examination materials
- Government purchasing information
- Land acquisition information
- Proprietary information
- Confidential business information
- Inter-agency or intra-agency memos or correspondences
The Law or Order Exception
According to H.R.S. § 92F-13(4), an agency may deny access to records protected from disclosure by state or federal law or by court order, such as tax return information that is supposed to be kept secret by other laws. The term "law" excludes administrative regulations, elements of county charters, and mayoral directives.
The Legislature Exception
Per H.R.S. § 92F-13(5), legislative committees may deny access to their draft working papers and other work products. Legislative investigative committees may also restrict access to their records or transcripts protected by legislative rule, while lawmakers are also permitted to withhold their personal files.
How Do I File a Hawaii Freedom of Information Act Request?
Hawaii's Uniform Information Practices Act makes no provision for the manner in which individuals should seek records. However, the Hawaii Office of Information Practices (OIP) outlines specific steps to request public records. The steps are as follows:
- Identify the custodian of the record: Determine which agency is the custodian of the record and the official or section in charge of the record.
- Contact the custodian of the record: Contact the officer or agency in the custody of the record by telephone, facsimile, or a written request. The UIPA does not mandate you to reveal why you request the record. Note that you can find the contact information on the agency's website. Many agencies also have UIPA request forms available on the website.
- Prepare your request: If you are making your request in writing, it is recommended that all of the following information be provided:
- Your name (or an alias if you prefer not to use your actual name)
- Your postal address
- Your phone or fax number at which the agency may reach you with notifications about your request.
- A clear description of the record you seek
- A time frame in which the event contained in the record occurred.
Note that while you are not required to identify yourself to access a public record, the agency may request your personal identification if you are asking to access your own personal information. Additionally, the agency may request that you hold your personal identification while inspecting your personal records.
You can make a UIPA request to the Office of the Hawaii Governor by sending a mail to email@example.com. You may also use the Hawaii OIP UIPA Request form to submit a request to the governor's office. The following are requirements for a UIPA request to the office of the governor:
- The request must be in writing
- The request must have sufficient information for the agency to correspond with the requester.
- The request must have a reasonable description of the requested record
- The requester must state the preferred method of receiving the requested record, such as mail, e-mail, and pick up.
For further UIPA inquiries, you may contact the governor's office at (808) 586-0034 or at:
415 S. Beretania Street
#5 Honolulu, HI 96813
HI DOD Public Affairs
3949 Diamond Head Road
Honolulu, HI 96816
Phone: (808) 441-7000
What is the Cost of a Freedom of Information Act Request in Hawaii?
The administrative guidelines (Chapter 2-71-19) of the Huawei Office of Information Practices permit an agency to collect specific fees from public record requesters. The guidelines also permit an agency to demand prepayment of 50% of the agency's projected expenses for searching for, reviewing, and segregating the requested documents, as well as 100% of the agency's estimate of other lawful fees. Lawful fees that an agency may charge include costs for photocopying under H.R.S. § 92F-21, the actual cost of a videotape or CD used to copy a record, and the actual charge for postage or other forms of transmission. Note that the UIPA defines "segregate" to mean preparing a record for disclosure by removing any portions of the record that are not required to be disclosed.
Note that the agency is required to waive the first $30 in expenses for search, review, and segregation. Alternatively, if the agency determines that the requester has fulfilled the conditions for a public interest waiver under OIP's administrative regulations, the agency must waive the first $60 in costs. For a public interest waiver to be granted, the agency must find that the public interest would be served because:
- The record is not readily available to the public.
- The requester intends and has the actual ability to widely disseminate the information to the public.
Per UIPA, an agency may charge a fee for search, review, and segregation of records, with the first $30 of the total waived in line with the following calculations:
- For search: $2.50 per 15 minutes or fraction thereof
- For review or segregation: $5 per 15 minutes or fraction thereof
How Long Does it Take to Respond to a Freedom of Information Act Request in Hawaii?
Per H.R.S. §92F-23, agencies are allowed up to 10 business days to respond to public record requests. Within that period, a record custodian must permit the requester to review the record and have a copy made, except when a requested personal record is exempted pursuant to Section 92F-22 of the Hawaii Revised Statutes.
However, the UIPA provides an exception for unusual circumstances that may extend the response period to 20 days. An unusual circumstance may occur when the agency has a large volume of requests to attend to or when the agency has to contact another agency or a division of its agency before responding to a request.
Per H.R.S. § 92F-15, an individual denied access to a public record may seek redress by appealing to the Office of Information Practices (OIP) or pursuing legal action against the agency in the circuit court within two years of the denial. You are not required to file an appeal with the OIP before filing an action in court but may do so first and then file an appeal with the court if necessary. Pursuant to H.R.S. §92F-15.5(b), if the OIP decides that the record must be made public, the agency must make the record accessible. An appeal to the circuit court is usually heard on an expedited basis; however, the individual filing an appeal with the court is required to first notify the OIP of the intention of filing a petition with the court.