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Peer News LLC v. City and County of Honolulu

Supreme Court of Hawaii

December 21, 2018

PEER NEWS LLC, dba CIVIL BEAT, Plaintiff-Appellant,


          Robert Brian Black Sarah Goggans for appellant.

          Duane W.H. Pang for appellees.

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



          POLLACK, J.

         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 declared "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 exceptions[1]), 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).

         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-I3(3) (2012), which exempts documents from disclosure when disclosure would frustrate a legitimate government function.[5] The memorandum stated that HRS § 92F-I3(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-I3(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 transparency. 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 public's interest in disclosure against the government's need for secrecy. The privilege should also apply only to documents containing the personal opinions of agency staff, Civil Beat argued, and it should last only as long as the agency decision to which the records pertain remains pending. Here, the public's interest in the disclosure of the budget requests outweighed the City's need for secrecy, Civil Beat contended, arguing that the documents reflected the policy of the various departments rather than the personal opinions of individual staff and that the Mayor's executive budget had already been finalized and publicly released. The budget requests would therefore not be covered by a deliberative process privilege even if such a privilege existed, Civil Beat concluded.

         By contrast, the City and BFS argued that the UIPA's legislative history does not show that the legislature intended to omit the deliberative process privilege, but rather to mindfully incorporate it into the broader "frustration of a legitimate government function" exception. Furthermore, they continued, because the privilege originated under the federal common law, it is alternately supported by HRS § 92F-I3(4), which shields "[g]overnment records which, pursuant to state or federal law including an order of any state or federal court, are protected from disclosure."[11]

         On December 3, 2015, following a hearing on all four motions, the circuit court orally ruled in favor of the City and BFS on all issues. The court first found that the OIP opinions adopting the deliberative process privilege were not palpably erroneous because they were not clearly contrary to the legislative intent of HRS § 92F-I3(3). The court further found that the requested budget memoranda were pre-decisional, deliberative documents prepared as part of the budget-setting process and were thus covered by the deliberative process privilege. On January 13, 2016, the circuit court entered written orders granting the City and BFS's motions, and final judgment was entered on February 5, 2016. Civil Beat filed a timely notice of appeal.

         D. ICA Proceedings and Transfer

         Before the ICA, Civil Beat raised three points of error:

1. Whether OIP and the circuit court erred in recognizing a deliberative process privilege, and thus a presumption of secrecy for records of government deliberations ....
2. Whether the circuit court erred in applying the deliberative process privilege standard to bar disclosure of the requested departmental budget memoranda, without weighing the public interest in disclosure of government financial information, the lack of harm to the privilege's core concern for personal opinions of vulnerable employees, or the passage of time. . . .
3. Whether the circuit court erred when it held that the requested departmental budget memoranda "are protected by the deliberative process privilege" - allowing the City to entirely withhold the memoranda - even though the court acknowledged that purely factual information within a privileged record is not protected and the City conceded that portions of the requested records contained purely factual information.[12]

         On September 9, 2016, Civil Beat applied for transfer to this court, arguing that the case presents novel legal issues and questions of fundamental public importance. This court granted Civil Beat's application for transfer on October 12, 2016.


         The legislature has directed that OIP's opinions be considered as precedent in a UIPA enforcement action such as this so long as they are not "palpably erroneous." HRS § 92F-15(b) (2012 & Supp. 2017).

         This court reviews a grant or denial of summary judgment de novo. Querubin v. Thronas, 107 Hawai'i 48, 56, 109 P.3d 689, 697 (2005).


         Although OIP has opined for nearly thirty years that a deliberative process privilege exempts certain inter- and intra-agency documents from the UIPA's disclosure requirements, see, e.g., OIP Op. Ltr. No. 89-9 (Nov. 20, 1989); OIP Op. Ltr. No. F19-01 (Oct. 11, 2018), this court has not heretofore had an opportunity to consider the propriety of this interpretation. We first consider the privilege in relation to the plain language of the UIPA before turning to the UIPA's legislative history for indications of the legislature's intent regarding the public disclosure of deliberative agency records.

         A. The Language of the UIPA

         As we have often stated, "the fundamental starting point for statutory interpretation is the language of the statute itself." State v. Wheeler, 121 Hawai'i 383, 390, 219 P.3d 1170, 1177 (2009) (quoting Citizens Against Reckless Dev. v. Zoning Bd. of Appeals of City & Cty. of Honolulu (CARD), 114 Hawai'i 184, 193, 159 P.3d 143, 152 (2007)). "[W]here the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning." Id. (quoting CARD, 114 Hawai'i at 193, 159 P.3d at 152).

         In adopting the deliberative process privilege, OIP relied upon HRS § 92F-I3(3), which shields from disclosure those "[g]overnment records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function." The unambiguous meaning of this provision is that, to fall within its parameters, a record must be of such a nature that disclosure would impair the government's ability to fulfil its proper duties. But the deliberative process privilege as formulated by OIP gives no direct consideration to whether a particular disclosure would negatively impact a legitimate government function. Instead, a record is shielded by the privilege anytime it is "pre-decisional" and "deliberative." OIP Op. Ltr. No. 90-3 at 12 (Jan. 18, 1990) (explaining that a communication is protected by the privilege if it is made prior to an agency decision and "makes recommendations or expresses opinions on . . . policy matters" (quoting Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975)).

         The City and BFS argue that all pre-decisional, deliberative records would frustrate a legitimate government function if disclosed. Administrators faced with the possibility that their remarks will be publicly disseminated are less likely to offer frank and uninhibited opinions for fear of public criticism or ridicule, they argue, and inhibiting the free exchange of ideas will in turn diminish the quality of agency decision-making. Thus, a determination that a record is pre-decisional and deliberative is functionally equivalent to a finding that disclosure of the record would impair a legitimate government function, the City and BFS appear to conclude.

         But the UIPA itself makes clear that these generalized concerns alone are not sufficient to constitute frustration of a legitimate government function within the meaning of the statute. HRS § 92F-2, which sets forth the legislature's purposes in enacting the UIPA and provides principles for interpreting the law, states in relevant part the following:

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.

(Emphases added.) The statute goes on to provide that the UIPA "shall be applied and construed to promote its underlying purposes and policies," including, inter alia, to "[p]romote the public interest in disclosure" and "[e]nhance governmental accountability through a general ...

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