Honolulu Civil Beat Inc. v. Dep't of the Attorney Gen.
| Decision Date | 26 April 2022 |
| Docket Number | SCAP-21-0000057 |
| Citation | 151 Hawai‘i 74,508 P.3d 1160 |
| Parties | HONOLULU CIVIL BEAT INC., Plaintiff-Appellant, v. DEPARTMENT OF THE ATTORNEY GENERAL, Defendant-Appellee. |
| Court | Hawaii Supreme Court |
Robert Brian Black, for appellant
Stella M.L. Kam, Honolulu (Patricia Ohara, Honolulu, on the briefs) for appellee
WILSON AND EDDINS, JJ., AND CIRCUIT JUDGE WONG, IN PLACE OF NAKAYAMA, J., RECUSED; AND RECKTENWALD, C.J., CONCURRING IN PART AND DISSENTING IN PART, WITH WHOM McKENNA, J., JOINS
In 2016, the Department of the Attorney General produced an explosive 555-page report1 documenting incompetence, deceptive practices, and workplace bullying in the Office of the Auditor (the Report).
Honolulu Civil Beat, an investigative news organization, has been trying to get its hands on a copy of that report for over five years.
We decide whether Hawai‘i's public information law - the Uniform Information Practices Act (UIPA) - requires the State AG to release the Report to Civil Beat.
By and large, it does. Though there are significant privacy interests in the Report as a "personnel-related" record, these interests are mostly outweighed by the public's overwhelming interest in the Report's disclosure. There are summaries of formal personnel records, discussions of minor policy infractions, and remarks about medical information in the Report that are exempt from the UIPA's disclosure requirements. They may be redacted. The names of rank-and-file employees of the Office of the Auditor and other interviewees may also be redacted. But everything else is fair game for Civil Beat: a smattering of redactions within a government record cannot shield the entire thing from the UIPA's disclosure requirements.
In April 2015, the Hawai‘i Legislature asked the Department of the Attorney General (the AG or State AG) to investigate the Office of the Auditor. The legislature made this request after receiving complaints about three high-ranking officials in the Office of the Auditor: Acting Auditor Jan Yamane, Deputy Auditor Rachel Hibbard, and General Counsel and Human Resources Manager Kathleen Racuya-Markrich (collectively the Subjects).
The State AG investigated. And it compiled a record of its investigation (the Investigation).
On April 27, 2016, a Civil Beat reporter emailed the State AG. He referenced the UIPA and asked for "access to or copies of all final investigative reports related to the state auditor's office from Jan. 1, 2015 to present."
The UIPA provides that "[a]ll government records are open to public inspection unless access is restricted or closed by law." Hawai‘i Revised Statutes (HRS) § 92F-11(a) (2012). It also exempts several categories of records from this disclosure mandate. See HRS § 92F-13 (2012).
The State AG denied Civil Beat's request. It said the Report was exempt from the UIPA's disclosure requirement.
Civil Beat sued.
The parties cross-moved for summary judgment.
The circuit court granted the State AG's motion for summary judgment and denied Civil Beat's. The court said the Report was exempt from the UIPA because it was a confidential communication between counsel (the State AG) and client (the legislature).2 Civil Beat appealed. On appeal, we reversed the circuit court. See Honolulu Civil Beat Inc. v. Dep't of Attorney Gen. (Civil Beat I ), 146 Hawai‘i 285, 463 P.3d 942 (2020). The Report might have been prepared at the legislature's request. But the State AG hadn't shown it prepared the Report in the context of an attorney-client relationship. And, as a result, the Report was not exempt from the UIPA's disclosure requirements. Id. at 298, 463 P.3d at 955.
The State AG's motion for summary judgment had raised two additional bases for the Report's nondisclosure that were left unaddressed by the circuit court's order. They were:
We remanded the case. We instructed the circuit court to consider whether the Report was shielded from the UIPA's disclosure requirements by the Frustration or Privacy Exemptions. Id. at 299, 463 P.3d at 956.
On remand, the circuit court again granted summary judgment to the State AG. It held that the Report fell within both the Frustration and the Privacy Exemptions and was therefore exempt from the UIPA's disclosure requirements.
The court said the Report fell within the Frustration Exception because its disclosure would frustrate the State AG's "legitimate government function" of providing legal services to state agencies.
The court said the Report fell within the Privacy Exemption because its disclosure would "constitute a clearly unwarranted invasion of personal privacy." In reaching this conclusion, the circuit court found there were significant privacy interests in the Report because it was both "[i]nformation comprising a personal recommendation or evaluation," see HRS § 92F-14(b)(8) (2012 & Supp. 2015), and "[i]nformation in an agency's personnel file,"3 see HRS § 92F-14(b)(4).
The circuit court also concluded that the Report should be totally withheld, rather than redacted, because the Report could not be "redacted in a fair manner which would give accurate meaning" to its contents.
Now, in this second appeal, Civil Beat says the circuit court got it wrong again. Civil Beat asks us to consider whether the circuit court erred by holding that the Report may be withheld from the public under (1) the Frustration Exemption; and (2) the Privacy Exemption. Civil Beat also asks us to consider (3) "[w]hether the circuit court erred by holding that the AG investigation report could not be disclosed in redacted form."
Under the UIPA, "[a]ll government records are open to public inspection unless access is restricted or closed by law." HRS § 92F-11(a). But there are several statutory exemptions. See HRS § 92F-13. And if a record falls within one of these exemptions, the government doesn't have to disclose it. Id.
Two exemptions are at issue in this case: the Frustration Exemption ( HRS § 92F-13(3) ) and the Privacy Exemption ( HRS § 92F-13(1) ).
The UIPA "contains a strong presumption in favor of public disclosure of government records." Civil Beat I, 146 Hawai‘i at 293, 463 P.3d at 950 (citing HRS §§ 92F-2 (2012), 92F-11(a)). And its exemptions are "narrowly construed with all doubts resolved in favor of disclosure." OIP Op. Ltr. No. 95-12 at 8 (May 8, 1995).
An agency relying on a UIPA exemption has the burden of showing that nondisclosure is justified. HRS § 92F-15(c) (2012) ().
Here, the State AG has not met its burden of showing that the Report's nondisclosure is justified under either the Frustration Exemption or the Privacy Exemption.
The analysis under the Frustration Exemption – which exempts records "that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function" - is straightforward. Both the trial court's post-remand order and the State AG's opening brief assert that the AG's ability to provide legal services will be frustrated by the Report's disclosure. This assertion is incompatible with our holding in Civil Beat I. See 146 Hawai‘i at 295, 463 P.3d at 952 (). The record contains no explanation of how the Report's disclosure could possibly frustrate the State AG's ability to provide legal services given that, per Civil Beat I, the Attorney General wasn't providing the State "legal services" when it investigated the Office of the Auditor or prepared the Report.4
The State AG has not advanced any other arguments about why the Report's release would frustrate a legitimate government function. The AG's burden of showing how the Report's release would frustrate a legitimate government function, see HRS § 92F-15(c), has not been met.5 The Frustration Exemption, then, cannot justify the Report's nondisclosure.
The Privacy Exemption analysis is more complicated.
The Privacy Exemption applies to "[g]overnment records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy." HRS § 92F-13(1). Under HRS § 92F-14(a), "[d]isclosure of a government record shall not constitute a clearly unwarranted invasion of personal privacy if the public interest in disclosure outweighs the privacy interest of the individual."
A two-part test governs our determination of whether a given record's disclosure would "constitute a clearly unwarranted invasion of personal privacy."
First, the court decides whether there is a "significant privacy interest rooted in statute or the constitution." See Org. of Police Officers v. City & Cty. of Honolulu, 149 Hawai‘i 492, 504, 494 P.3d 1225, 1237 (2021).
If the court finds a constitutionally or statutorily "significant" privacy interest, it balances that interest against the public's interest in disclosure. If the significant privacy interest is stronger than the public's interest in disclosure, the record's disclosure constitutes "a clearly unwarranted invasion of personal privacy" and the record falls within the Privacy Exemption. If, however, the public's interest in disclosure is stronger than the privacy interests at issue, the record is not exempt and must be disclosed. See id. at 516, 494 P.3d at 1249.
The analysis is easier if there's no "significant privacy interest rooted in statute or the constitution;" in ...
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