by Cheryl Kakazu Park
For nearly 30 years, Hawaii's Office of Information Practices ("OIP")1 had rendered opinions recognizing the deliberative process privilege ("DPP") as a limited form of a statutory exception to the disclosure of public records under Hawaii's open records law. In a December 2018 decision, the Hawaii Supreme Court, in a 3 to 2 decision,2 abruptly rejected this practice, reversed a decision of the First Circuit Court, and held that government agencies could no longer use the DPP to justify withholding certain internal records and that "decision-making" was not a government function falling within the frustration exception of the Uniform Information Practices Act ("UIPA"), chapter 92F, Hawaii Revised Statutes ("HRS").
In Peer News LLC v. City and County of Honolulu, 143 Haw. 472, 431 P.3d 1245 (2018), Peer News (Appellant") challenged a decision by the City and County of Honolulu and its Department of Budget and Fiscal Services ("BFS") (together, 'Appellees") that withheld certain internal government documents generated during the process of establishing the City's annual operating budget. Neither party sought OIP's opinion, and instead Appellant directly initiated a lawsuit in the First Circuit Court pursuant to HRS §92F-15(a) (2012).
Although Appellees filed a third-party complaint against OIP, they stipulated to dismiss their complaint after OIP argued that it had never been asked to opine on the records at issue and was not responsible for Appellees' application of OIP's precedents. The Circuit Court subsequently ruled in favor of the Appellees' application of the DPP to the records being sought, and the case was appealed to the Hawaii Supreme Court. Given OIP's longstanding line of cases recognizing and interpreting the DPP, and the UIPA's clear instruction that courts must consider OIP's opinions and rulings "as precedent unless found to be palpably erroneous,"3 OIP let its prior opinions speak for themselves and left it to the Court to ultimately decide the DPP's legal effect.4
Since the Peer News decision, OIP has been advising agencies not to use the DPP or the decision-making function to justify nondisclosure under the frustration exception. In May 2019, OIP rejected the use of the DPP in OIP Opinion Letter No. F19-05, which has been appealed to the First Circuit Court in S.P No. 19-1-0191.
OIP prepared an extensive analysis of the Peer News decision and preserved important legislative history and pre-UIPA court decisions, which are posted on the Opinions page at oip.hawaii.gov. OIP's online analysis (1) traces the UIPA's legislative history regarding internal agency communications and describes the evolution of the DPP, its purposes and limitations, (2) contrasts the Court's majority and dissenting opinions, (3) preserves key facts and arguments not presented to the Court and discusses the 2019 legislative proposals addressing the DPP, and (4) interprets the Court's guidance as to how to apply the UIPA's frustration exception without the DPP. Because the detailed discussions, citations, and supporting documents are in OIP's analysis or posted on OIP's website, they will generally not be provided in this article.
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Instead, this article first briefly summarizes the DPP and contrasts the opinions of the majority and dissent. Next, it discusses key facts presented to the 1988 Legislature but not to the Peer News Court, which might have resulted in a different judicial conclusion had they been known. Absent any change by the Court or the current Legislature, however, agencies can no longer use the DPP to justify withholding their internal deliberative records.
The Deliberative Process Privilege (DPP)
Based on the parties' representations in Peer News, the majority and dissent characterized the DPP adopted by OIP as a simple two-part test that shields records any time they are "predecisional" and "deliberative," citing OIP Opinion Letter Nos. 90-3 and 04-15. The full body of OIP opinions on the DPP, however, is much more nuanced and contains many significant limitations. OIP issued at least 38 DPP opinions before Peer News and concluded in at least ten opinions not cited by the Court that the DPP was not applicable, had been waived, or could not be used to shield portions of the record. Moreover, OIP has issued opinions applying the DPP to the Judiciary's administrative functions, as well as to the Legislature.5
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OIP first recognized the DPP in OIP Opinion Letter No. 89-9, based on the UIPA's statutory exception for "[g]overnment records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function[.]" HRS § 92F-13(3). After closely examining this statutory exception and its legislative history, which suggested that case law under the federal Freedom of Information Act, 5 U.S.C. § 552(b)(5) ("FOIA') be consulted, OIP recognized the DPP in order to encourage the candid and free exchange of ideas and opinions within and among agencies. This candid exchange is essential to agency decision-making and is less likely to occur when predecisional and deliberative internal documents are subject to public disclosure. Over the following decades, OIP imposed limitations on the DPP, such as requiring the reasonable segregation of deliberative material from factual information and recognizing that the DPP may be waived if protected records are expressly adopted or incorporated by reference into an agency's final decision.
Moreover, while OIP's early decisions did not depend on a balancing test, OIP later evidenced an inclination to balance competing interests to avoid having the DPP exception "swallow" the UIPA's disclosure requirements. OIP Opinion Letter No. 95-24 at 21-22. Thus, OIP narrowly construed the DPP to be consistent with the need for efficient government operations while preventing the privilege from overwhelming the UIPA's requirement to form and implement public policy as openly as possible, and it concluded in OIP Opinion Letter No. 95-24 that the DPP only protected those portions of deliberative material that could stifle the frank exchange of ideas and opinions and injure the quality of the decision-making process.
Although the Appellant in Peer News cited OIP Opinion Letter No. 95-24 and argued as an alternative that "OIP also has indicated support for the deliberative process privilege as a 'qualified privilege' that requires balancing against the public interest in disclosure" and that "the need to balance the public interest in disclosure falls squarely within the Legislature's intent," the Court did not recognize the DPP as a qualified privilege and the majority rejected the dissent's suggestion to adopt a balancing approach.
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A Comparison of the Majority and Dissenting Opinions
Based on their interpretations of the DPP as a simple two-part test, both the majority and dissent agreed that the DPP created an overly-broad exception to the UIPA's general rule requiring public access to government records. The majority and dissent disagreed, however, as to whether OIP's recognition of that privilege under HRS § 92F-13(3) was palpably erroneous and not supported by the language or legislative history of the UIPA.
After examining the UIPA's language and legislative history, the majority concluded that OIP had palpably erred in adopting the DPP, while the dissent disagreed with this "extreme" position rejecting any DPP. Instead, the dissent suggested a "middle ground approach that would require more detailed justification by the agency asserting the privilege and require a court to balance the government's interest in confidentiality with the public's interest in disclosure." While recognizing that "the dissent's approach may well represent sound policy," the majority rejected it and stated that "[t]he determination as to whether and to what extent deliberative documents should be shielded from disclosure must be made by the legislature and not by judicial fiat" as "no such exception exists in the UIPA."
A. "Plain Language" of the Law
Both opinions looked to the UIPA's policy in HRS § 92F-2, which states in relevant part:
In a democracy, the people are vested with the ultimate decision-making power. Government agencies exist to aid the people in the formation and conduct of public policy. Opening up the government processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore the legislature declares 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.
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Majority at 15 (emphasizing italicized language not bolded); Dissent at 9 (emphasizing bolded language).
Both opinions also recognized that the UIPA expressly states in HRS § 92F-11(a) that "[a]ll government records are open to public inspection unless access is restricted or closed by law."
Majority at 16; Dissent at 9 (emphasizing bolded language). Although both opinions looked to the same "plain language" of the UIPA, they disagreed on how to interpret it.
The majority strictly construed the UIPA's policy to require "'the formation . . . of public policy,' including 'discussions' and 'deliberations,' 'shall be conducted as openly as possible'" and concluded...
