431 P.3d 1245 (Hawai‘i 2018), SCAP-16-0000114, Peer News LLC v. City & County of Honolulu

Docket NºSCAP-16-0000114
Citation431 P.3d 1245, 143 Hawai‘i 472
Opinion JudgePOLLACK, J.
Party NamePEER NEWS LLC, dba Civil Beat, Plaintiff-Appellant, v. CITY AND COUNTY OF HONOLULU and Department of Budget and Fiscal Services, Defendants-Appellees.
AttorneyRobert Brian Black, Sarah Goggans, for appellant Duane W.H. Pang, Honolulu, for appellees Marissa H.I. Luning, for amicus curiae, State of Hawai‘i
Case DateDecember 21, 2018
CourtSupreme Court of Hawai'i

Page 1245

431 P.3d 1245 (Hawai‘i 2018)

143 Hawai‘i 472

PEER NEWS LLC, dba Civil Beat, Plaintiff-Appellant,


CITY AND COUNTY OF HONOLULU and Department of Budget and Fiscal Services, Defendants-Appellees.

No. SCAP-16-0000114

Supreme Court of Hawai‘i

December 21, 2018

Page 1246

[Copyrighted Material Omitted]

Page 1247


Robert Brian Black, Sarah Goggans, for appellant

Duane W.H. Pang, Honolulu, for appellees

Marissa H.I. Luning, for amicus curiae, State of Hawai‘i




[143 Hawai‘i 474] Hawai‘i law has long stated that "[o]pening up the government processes to public scrutiny and participation is the only viable and reasonable method of protecting the public’s interest." Hawaii Revised Statutes § 92F-2 (2012). Therefore, in establishing the legal framework governing public access to government records, the Hawai‘i legislature de

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[143 Hawai‘i 475] clared "that it is the policy of this State that the formation and conduct of public policy— the discussions, deliberations, decisions, and action of government agencies— shall be conducted as openly as possible." Id.

This case concerns the propriety of State and local agencies withholding certain inter- and intra-office communications when disclosure is formally requested by a member of the public. In a series of eight opinion letters issued between 1989 and 2007, the State of Hawai‘i Office of Information Practices took the position that, based on a statutory exception provided in Hawai‘i’s public record law that permits the nondisclosure of records that would frustrate a legitimate government function if revealed, a "deliberative process privilege" exists that protects all pre-decisional, deliberative agency records without regard for the relative harm that would result from any specific disclosure. Relying on these opinion letters, the Office of Budget and Financial Services for the City and County of Honolulu denied a public records request for certain internal documents generated during the setting of the City and County’s annual operating budget.

We hold that, because the deliberative process privilege attempts to uniformly shield records from disclosure without an individualized determination that disclosure would frustrate a legitimate government function, it is clearly irreconcilable with the plain language and legislative history of Hawai‘i’s public record laws. The Office of Information Practices therefore palpably erred in interpreting the statutory exception to create this sweeping privilege. Accordingly, we vacate the grant of summary judgment in this case and remand for a redetermination of whether the records withheld pursuant to the purported privilege fall within a statutory exception to the disclosure requirement.


A. Developing Honolulu’s Operating Budget

Each year, the City and County of Honolulu (City) sets its annual operating budget through a series of exchanges between its various departments and branches. The process begins with the Mayor providing a list of intended policies and priorities for the coming fiscal year to the Department of Budget and Fiscal Services (BFS). BFS in turn sends a notice detailing the Mayor’s policies and priorities to the directors of the departments that make up the City’s executive branch (with limited exceptions1 ), soliciting an operating budget request from each department. Thereafter, the departments each prepare and submit a formal memorandum to BFS justifying all proposed expenditures for the coming fiscal year in relation to the Mayor’s policies and priorities, thus providing an initial recommendation regarding the money to be allocated to the department. Those departments that generate revenue also provide preliminary projections outlining the funds they expect to take in, thereby giving BFS an estimate of the City’s expected revenues and expenditures for the coming fiscal year.

During the months following BFS’s receipt of the operating budget request, various parties from BFS engage with the requesting agencies and the office of the City’s Managing Director in a series of discussions regarding each department’s proposed budget, revising the request as needed to account for budgetary considerations and changes in the Mayor’s policies and priorities. The budget request is eventually submitted to the Mayor, who may make further adjustments based on additional discussions with the BFS Director and Managing Director. Once the Mayor makes final decisions regarding each department’s budget, BFS produces a combined executive budget for submission to the City Council. After a public hearing, the City Council revises the executive budget as it deems appropriate before formally adopting it, at which point it is presented to the Mayor to be signed or vetoed in the same manner as other legislation. See Revised Charter of the City and County of Honolulu § 9-104 (1998).

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[143 Hawai‘i 476] B. Civil Beat’s Request

On March 5, 2015, Nick Grube, a reporter for the online news outlet Peer News LLC d/b/a Civil Beat (Civil Beat), sent an email to BFS requesting access to or copies of the "narrative budget memo for Fiscal Year 2016" for each of the City’s departments. Grube stated in his email that the request was made pursuant to the Hawai‘i public records law.2

On March 13, 2015, BFS sent a notice to Grube acknowledging his request and informing him that the agency was invoking the "extenuating circumstances" exception contained in the Hawaii Administrative Rules (HAR) to extend its time limit for responding.3 Then, on April 7, 2015, BFS provided Grube with a second notice, this time denying his request in its entirety, stating that the legitimate government function of agency decision-making would be frustrated by disclosure of the requested records.4

In a memorandum attached to the second notice, BFS cited a series of opinion letters from the State of Hawai‘i Office of Information Practices (OIP) interpreting the provision of the Hawai‘i Uniform Information and Practices Act (UIPA) codified in Hawaii Revised Statutes (HRS) § 92F-13(3) (2012), which exempts documents from disclosure when disclosure would frustrate a legitimate government function.[5] The memorandum stated that HRS § 92F-13(3) creates a "deliberative process privilege" that shields government records from disclosure when they are pre-decisional and deliberative in nature. (Citing OIP Op. Ltr. No. 00-01 (Apr. 12, 2000); OIP Op. Ltr. No. 90-8 (Feb. 12, 1990).) Under the privilege, BFS stated, agencies are not required to disclose " ‘recommendations, draft documents, proposals, suggestions, and other subjective documents’ that comprise part of the process by which the government formulates decisions and policies." (Quoting OIP Op. Ltr. No. 04-15 at 4 (Aug. 30, 2004).)

Construing Grube’s request to refer to the operating budget memoranda from each of the City’s departments, BFS argued that disclosure of these documents would have a chilling effect that would lower the quality of the information provided to BFS and consequently impair its decision-making. The requests were thus the precise sort of records the deliberative process privilege created by HRS § 92F-13(3) was intended to exempt from disclosure, BFS concluded.

On April 13, 2015, Civil Beat submitted a letter from its counsel encouraging BFS to favor public access, waive any concerns about the frustration of government functions, and produce the records in the interest of trans

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[143 Hawai‘i 477] parency. On April 30, 2015, BFS provided Civil Beat with a third notice revising its denial to allow partial disclosure of the requested information.6 The revised notice stated that BFS still intended to withhold the proposed budget amounts and those budget justifications that involved "safety inspections, staffing, training and equipment."7

C. Circuit Court Proceedings

On May 8, 2015, Civil Beat filed a two-count complaint against the City and BFS in the Circuit Court of the First Court (circuit court) seeking declaratory and injunctive relief.8 Count I of the complaint sought an order declaring that the OIP precedent adopting the deliberative process privilege was palpably erroneous, as well as an order enjoining the City and BFS from invoking the purported privilege to deny public access to governmental records. Count II sought access to copies of the departmental budget memoranda identified in Civil Beat’s March 5, 2015 request, subject to the redaction of specific salaries.

The City and BFS filed a joint answer on June 1, 2015,9 and then filed two joint motions for partial summary judgment on October 19, 2015— one for each count in Civil Beat’s complaint. Civil Beat responded by filing two combined opposition/cross-motions for summary judgment on November 13, 2015.

In its oppositions/cross-motions,10 Civil Beat asserted that a broad deliberative process privilege would contradict the legislature’s plainly stated intent that, under the UIPA, agency "deliberations ... shall be conducted as openly as possible." (Quoting HRS § 92F-2 (2012).) Civil Beat further contended that the UIPA’s legislative history indicates that the legislature made a purposeful decision not to adopt a deliberative process privilege, which at the time of the UIPA’s enactment was codified in both federal law and the model statute upon which the UIPA was based.

Even assuming that the UIPA contains a deliberative process privilege, Civil Beat continued, the exception should be read narrowly to require weighing the...

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