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Electronically Filed
Supreme Court
SCAP-16-0000114
21-DEC-2018
08:17 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o--PEER NEWS LLC, dba CIVIL BEAT,
Plaintiff-Appellant,
vs.
CITY AND COUNTY OF HONOLULU and
DEPARTMENT OF BUDGET AND FISCAL SERVICES,
Defendants-Appellees.
SCAP-16-0000114
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-16-0000114; CIV. NO. 15-1-0891)
DECEMBER 21, 2018
DISSENTING OPINION BY NAKAYAMA, J.,
IN WHICH RECKTENWALD, C.J., JOINS
At issue in this case is whether the Office of
Information Practices’ (OIP) adoption of a deliberative process
privilege, which shields any government record that is deemed
“predecisional” and “deliberative” from disclosure to the public,
is palpably erroneous.

While I respectfully disagree with the

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Majority that OIP’s recognition of a deliberative process
privilege is not supported by the language or legislative history
of the Uniform Information Practices Act (UIPA), I believe OIP’s
current test that determines whether a government record falls
within the privilege is palpably erroneous.
In 2015, a reporter from Plaintiff-Appellant Peer News
LLC, dba Civil Beat (Civil Beat), requested access to the
operating budget requests from each of Defendant-Appellee City
and County of Honolulu’s (the City) executive departments for the
2016 fiscal year, pursuant to Hawai#i Revised Statutes (HRS) §
92F-11(a).

Defendant-Appellee Department of Budget and Fiscal

Services (BFS) denied the reporter’s request, stating that the
requested documents fell within the deliberative process
privilege, and therefore, were protected from disclosure pursuant
to HRS § 92F-13(3).
Following the denial of its request, Civil Beat filed a
two-count complaint in the Circuit Court of the First Circuit
(circuit court) seeking the following forms of declaratory
relief: (1) an order (a) declaring that OIP’s adoption of the
deliberative process privilege was palpably erroneous and (b)
enjoining the City and BFS (collectively “Defendants”) from
invoking the privilege to deny Civil Beat access to the requested
documents; and (2) an order directing Defendants to disclose the
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records sought in Civil Beat’s original request.
Defendants filed two motions for summary judgment, one
for each count in the complaint.
motions for summary judgment.

Civil Beat filed two cross-

Following a hearing, the circuit

court granted summary judgment to Defendants on both motions.
The circuit court ruled that OIP’s recognition of the
deliberative process privilege under HRS § 92F-13(3) was not
inconsistent with legislative intent, and therefore, was not
palpably erroneous.

Additionally, the circuit court found that

the operating budget requests sought by Civil Beat were
predecisional and deliberative, and therefore protected by the
deliberative process privilege.

Civil Beat appealed.

On appeal, this court must resolve two issues: (1)
whether OIP’s recognition of the deliberative process privilege
is palpably erroneous; and (2) whether OIP’s current two-part
test that determines whether a document is protected by the
privilege is palpably erroneous.

In other words, this court must

decide whether OIP’s interpretation of the UIPA, which generally
receives deference, HRS § 92F-15(b) (2012), is so inconsistent
with the legislative intent of the statute that it is palpably
erroneous.

See Kanahele v. Maui Cty. Council, 130 Hawai#i 228,

245-46, 307 P.3d 1174, 1191-92 (2013).
Unlike the Majority, I do not believe that OIP’s
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recognition of the deliberative process privilege is palpably
erroneous.

The plain language of HRS § 92F-2 (2012), the

legislative history underlying the UIPA, and the Legislature’s
actions prior and subsequent to the enactment of the UIPA do not
suggest to me that the Legislature clearly intended to reject the
deliberative process privilege as an exception to the general
rule requiring public access to government records.

Accordingly,

I would hold that the circuit court did not err in granting
Defendants’ motion for summary judgment on Count I.
However, I believe that OIP’s two-part test that
currently determines whether a document is protected by the
deliberative process privilege is palpably erroneous.

OIP’s test

creates a broad exception that favors non-disclosure over public
access, and thus conflicts with the Legislature’s intent that the
UIPA be construed to promote the public interest in disclosure
through a general policy of access to government records.
Therefore, I would hold that the circuit court erred in granting
Defendants’ motion for summary judgment with respect to Count II,
insofar as the circuit court applied OIP’s current test to
conclude that the requested operating budget requests fell within
the deliberative process privilege.
In contrast with the extreme positions adopted by the
Majority, which would reject any deliberative process privilege
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altogether, and OIP, which adopted an unduly expansive
interpretation of the privilege, I would adopt 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.

See City of Colorado Springs v. White,

961 P.2d 1042 (Colo. 1998) (en banc).

Such an approach would

protect the public’s right of access to documents without unduly
impeding the ability of government officials to reach sound
decisions through the free and candid exchange of ideas.
Accordingly, I would adopt that approach here, and remand to the
circuit court to apply it to the City’s budget memoranda at issue
in this case.
I.

DISCUSSION

To resolve (1) whether OIP’s recognition of the
deliberative process privilege is palpably erroneous; and (2)
whether OIP’s two-part test for determining whether a document is
protected by the privilege is palpably erroneous, this court must
evaluate whether OIP’s interpretation of the UIPA, codified at
HRS Chapter 92F, is palpably erroneous.

Thus, my analysis begins

with an overview of HRS Chapter 92F and OIP’s adoption of the
deliberative process privilege thereunder.
The purpose of the UIPA, as defined in HRS § 92F-2
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(2012), provides 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.

As to public access to government records, HRS § 92F11(a) (2012) provides: “All government records are open to public
inspection unless access is restricted or closed by law.”

HRS §

92F-13 (2012), which identifies five exceptions to the foregoing
rule, states in pertinent part: “This part shall not require
disclosure of: . . . (3) Government records that, by their
nature, must be confidential in order for the government to avoid
the frustration of a legitimate government function[.]”
The Legislature delegated authority to interpret the
UIPA to OIP.

HRS § 92F-42 (2012).

Therefore, in an action to

compel disclosure filed in the circuit court pursuant to HRS §
92F-15(a),1 the “[o]pinions and rulings of the office of
information practices shall be admissible and shall be considered
as precedent unless found to be palpably erroneous[.]”

HRS §

92F-15(b) (2012).

1

HRS § 92F-15(a) (2012) provides that “[a] person aggrieved by a
denial of access to a government record may bring an action against the agency
at any time within two years after the agency denial to compel disclosure.”

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OIP’s Opinion Letter No. 04-15 summarizes the nature
and extent of the deliberative process privilege:
In previous advisory opinions, the OIP
recognized that the disclosure of certain intra-agency
and inter-agency memoranda or correspondence would
frustrate the legitimate government function of agency
decision-making by injuring the quality of agency
decisions. The OIP thus extended the “frustration”
exception under the UIPA, in line with case law
interpreting the federal Freedom of Information Act,
to allow the withholding of agency records protected
by the executive or “deliberative process privilege.”
The deliberative process privilege shields from
disclosure “recommendations, draft documents,
proposals, suggestions, and other subjective
documents” that comprise part of the process by which
the government formulates decisions and policies.
“This privilege, which protects the deliberative
and decisionmaking processes of the executive branch,
rests most fundamentally on the belief that were
agencies forced to ‘operate in a fish bowl,’ the frank
exchange of ideas and opinions would cease and the
quality of administrative decisions would consequently
suffer.” The privilege protects the quality of agency
decision-making, specifically, by encouraging
subordinates to provide uninhibited opinions and
recommendations to decision-makers without fear of
public ridicule or criticism; by protecting against
premature disclosure of proposed policies or decisions
before they are finally formulated or adopted; and by
protecting against any confusion of the issues and
misleading of the public that might be caused by
dissemination of documents suggesting reasons and
rationales that are not in fact the ultimate reasons
for an agency’s action.

OIP Op. Ltr. 04-15 at 4 (emphases added) (citations omitted).
With these principles in mind, I now consider Civil
Beat’s points of error.
A.

OIP’s recognition of the deliberative process privilege
is not palpably erroneous.
With respect to its first point of error, Civil Beat

asserts that the circuit court erred in ruling that OIP’s

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recognition of the deliberative process privilege is not palpably
erroneous.

In support of this position, Civil Beat contends

that: (1) OIP’s recognition of the deliberative process privilege
is inconsistent with the plain language of HRS § 92F-2; (2) the
legislative history underlying the UIPA indicates that the
Legislature unequivocally intended to reject the deliberative
process privilege under the UIPA; and (3) the Legislature’s
actions prior and subsequent to the UIPA’s enactment support that
the Legislature did not intend to recognize a deliberative
process privilege under the statute.
For the reasons discussed below, I am not persuaded by
any of Civil Beat’s arguments on this point, and therefore cannot
conclude that OIP’s adoption of a deliberative process privilege
under HRS § 92F-13(3) is palpably erroneous.
1.

Plain language of HRS § 92F-2
First, Civil Beat contends that OIP’s adoption of the

deliberative process privilege is palpably erroneous because such
an interpretation of HRS § 92F-13(3) “ignored the plain language
of the UIPA declaration of State policy that ‘deliberations . . .
shall be conducted as openly as possible.’” (ellipsis in
original) (quoting HRS § 92F-2).

To Civil Beat, OIP’s adoption

of a privilege that exempts certain memoranda and communications
that are part of an internal deliberative process is inconsistent
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with the foregoing policy declarations espoused in HRS § 92F-2.
Accordingly, Civil Beat asserts that because OIP’s recognition of
the deliberative process privilege runs afoul of the language in
HRS § 92F-2, and would render such statutory language
meaningless, the circuit court erred in ruling that OIP’s
adoption of the privilege was consistent with the Legislature’s
intent.
In my view, Civil Beat’s argument is not convincing.
Although HRS § 92F-2 certainly supports that the UIPA favors
ensuring the transparency of and public access to our
government’s decisionmaking and policy-development processes, the
plain language of several provisions in the UIPA indicates that
the Legislature did not intend for such transparency and
accessibility to be absolute.

In particular, HRS § 92F-2 states

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.”

(Emphasis added.)

Additionally, HRS §

92F-11(a) provides: “All government records are open to public
inspection unless access is restricted or closed by law.”
(Emphasis added.)

I believe that the inclusion of such

qualifying language in the UIPA supports that the Legislature may
have intended for certain “discussions, deliberations, decisions,
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and action[s] of government agencies,” HRS § 92F-2, to remain
confidential.

From my perspective, the recognition of a

privilege that limits the disclosure of certain types of internal
memoranda and communications relating to an agency’s deliberative
process in the course of decision-making and policy formation is
consistent with such legislative intent.
Moreover, I do not agree with Civil Beat that the
phrase “deliberations . . . shall be conducted as openly as
possible” is effectively read out of HRS § 92F-2 as a consequence
of OIP’s recognition of the deliberative process privilege.
True, the privilege, as properly applied, exempts some government
deliberations from disclosure under the UIPA.

But the exemption

of one category of documents relating to government deliberations
in certain contexts, such as internal, predecisional
communications containing opinions and recommendations about
proposed policies, will not necessarily deny the public access to
all government deliberations as Civil Beat suggests.2
2.

Legislative history

Civil Beat also argues that the UIPA’s legislative
history supports the Legislature’s clear intent to “omit the

2

As I describe in Section I.B infra, a proper application of the
deliberative process privilege requires balancing the government’s interest in
protecting from disclosure documents involved in the deliberative process with
the public’s interest in disclosure. Should the public’s interest outweigh
the government’s, disclosure of the deliberative document would be required.

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deliberative process privilege” from the UIPA.
Civil Beat notes that the House’s draft of House Bill
No. 2002 (H.B. 2002), the bill that would ultimately become the
UIPA, initially identified twelve specific exceptions to the
general rule mandating public access to government documents.
Civil Beat observes that the Senate declined to adopt the House’s
approach, and instead created four general categories of
documents that would be exempt from disclosure.

Civil Beat

emphasizes, “[t]he only [House] exception not referenced in the
Senate draft [of the bill] or Senate committee report was the
deliberative process privilege.”
Accordingly, Civil Beat argues that the Senate
purposefully omitted the deliberative process privilege from its
list of documents that would fall within the “frustration of
legitimate government function” exception.

Such action by the

Senate, Civil Beat contends, indicates a clear intent to omit the
privilege from the UIPA.

Further, Civil Beat asserts that the

Conference Committee, which attempted to resolve the differences
between the House and Senate versions of H.B. 2002, adopted the
Senate’s intent to omit the deliberative process privilege when
it favorably referred to the Senate’s more general list of
exceptions of documents that fell within the “frustration of
government function” exception.
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Additionally, Civil Beat cites two other statements in
the UIPA’s legislative history as supportive of its position that
the Legislature did not intend to acknowledge the deliberative
process privilege.

Civil Beat asserts that “the Senate stated

clearly that it did not intend OIP or the courts to create
exemptions that it had anticipated and rejected” when it remarked
in a committee report that “[t]he common law is ideally suited to
the task of balancing competing interest in the grey areas and
unanticipated cases, under the guidance of the legislative
policy.”

(Citing S. Stand. Comm. Rep. No. 2580, in 1988 Senate

Journal, at 1094 (alteration in original) (emphasis omitted)).
Additionally, Civil Beat highlights that the Conference Committee
stated: “The records which will not be required to be disclosed .
. . are records which are currently unavailable.

It is not the

intent of the Legislature that this section be used to close
currently available records, even though these records might fit
within one of the categories in this section.”

(Citing Conf.

Comm. Rep. No. 112-88, in 1988 House Journal, at 818, 1988 Senate
Journal, at 690.)

To Civil Beat, because “[t]he only category of

records consistently highlighted by testifiers as available under
pre-UIPA law was government deliberations,” the Conference
Committee report supports the Legislature’s intent to omit the
deliberative process privilege.
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However, it appears to me that the legislative history
underlying the UIPA does not actually indicate that the
Legislature clearly intended to omit the deliberative process
privilege from the UIPA.

As drafted by the House, Section 13 of

H.B. 2002 provided that the following types of government records
would not be subject to public disclosure:
(1) Information compiled for law enforcement
purposes[.]
. . . .
(2) Inter-agency or intra-agency advisory,
consultative, or deliberative material other than
factual information if:
(A) Communicated for the purpose of
decision-making; and
(B) Disclosure would substantially inhibit
the flow of communications within an
agency or impair an agency’s decisionmaking processes;
(3) Material prepared in anticipation of
litigation[;]
(4) Materials used to administer a licensing,
employment, or academic examination if disclosure
would compromise the fairness or objectivity of the
examination process;
(5) Information which, if disclosed, would
frustrate government procurement or give an advantage
to any person proposing to enter into a contract or
agreement with an agency including information
involved in the collective bargaining process provided
that a roster of employees shall be open to inspection
by any organization which is allowed to challenge
existing employee representation;
(6) Information identifying real property under
consideration for public acquisition before
acquisition of rights to the property[;]
(7) Administrative or technical information[;]
(8) Proprietary information[;]
(9) Trade secrets or confidential commercial and

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financial information obtained, upon request, from a
person;
(10) Library, archival, or museum material
contributed by private persons to the extent of any
lawful limitation imposed on the material;
(11) Information that is expressly made
nondisclosable or confidential under federal or state
law or protected by the rules of evidence.
(12) An individually identifiable record not
disclosable under part III.

H.B. 2002, H.D. 1, 14th Leg., Reg. Sess. (1988) (emphasis added).
The Senate revised the House’s version of H.B. 2002
significantly.

In particular, the Senate enumerated four broad

categories of documents that would be exempt from disclosure, in
contrast with the House’s approach of identifying more specific
types of records that could be kept from public view.

See S.

Stand. Comm. Rep. No. 2580, in 1988 Senate Journal, at 1094.
of the Senate’s categorical exceptions encompassed documents

One

that, by their nature, must be confidential to avoid the
frustration of a legitimate government function.

Id.

revision, the Senate commented:
4. A new Section 92-53 is added to create four
categorical exceptions to the general rule. Rather
than list specific records in the statute, at the risk
of being over- or under-inclusive, your Committee
prefers to categorize and rely on the developing
common law. The common law is ideally suited to the
task of balancing competing interest in the grey areas
and unanticipated cases, under the guidance of
legislative policy. To assist the Judiciary in
understanding the legislative intent, the following
examples are provided.
. . . .

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(b) Frustration of a legitimate government
function. The following are examples of records which
need not be disclosed, if disclosure would frustrate a
legitimate government function.
(1)

Records or information compiled for law
enforcement purposes;

(2)

Materials used to administer an
examination which, if disclosed, would
compromise the validity, fairness, or
objectivity of the examination;

(3)

Information which, if disclosed, would
raise the cost of government procurements
or give a manifestly unfair advantage to
any person proposing to enter into a
contract or agreement with an agency,
including information pertaining to
collective bargaining;

(4)

Information identifying or pertaining to
real property under consideration for
future public acquisition, unless
otherwise available under State law;

(5)

Administrative or technical information[;]

(6)

Proprietary information[;]

(7)

Trade secrets or confidential commercial
and financial information;

(8)

Library, archival, or museum material
contributed by private persons to the
extent of any lawful limitation imposed by
the contributor; and

(9)

Information that is expressly made
nondisclosable or confidential under
Federal or State law or protected by
judicial rule.

Id. at 1094-95 (emphasis added).
A Conference Committee attempted to resolve the
differences between the House and Senate versions of H.B. 2002.
Regarding its approach to determining which government records
would be exempt from the general rule requiring public access
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thereto, the Conference Committee remarked:
Both the earlier House and Senate drafts of this
bill provided a general rule of access with a limited
set of exceptions to that general rule. In doing so,
both the House and Senate made clear their shared view
that an open government is the cornerstone of our
democracy. . . .
The House and Senate in their earlier drafts,
however, took markedly different paths to reaching the
shared goal of access. The House chose, with some
modification, to use the Uniform Information Practices
Code of the National Conference of Commissioners on
Uniform State Laws. The Senate, on the other hand,
chose to modify existing laws in part because the
House bill appeared to have been significantly
misunderstood and in part because a set of amendments
which directly attacked the current problems appeared
to be a preferable course of action.
After substantial debate and discussion, your
Committee believes that there is wisdom in both
approaches and that a synthesis of the versions is
appropriate. . . .
The major features of the conference draft are
discussed below and are intended to serve as a clear
legislative expression of intent should any dispute
arise as to the meaning of these provisions.
. . . .
5. Exceptions to Access. The bill will provide
in Section -13 a clear structure for viewing the
exceptions to the general rule of access. The five
categories of exceptions relate to personal privacy,
frustration of government practice, matters in
litigation, records subject to other laws and an
exemption relating to the Legislature. The category
relating to personal privacy is essentially the same
in both the House Draft and the Senate Draft. The
second category, concerning frustration of legitimate
government functions, was clarified by examples on
pages 4 and 5 of Senate Standing Committee Report No.
2580. The last three are self-explanatory.
The records which will not be required to be
disclosed under Section -13 are records which are
currently unavailable. It is not the intent of the
Legislature that this section be used to close
currently available records, even though these records
might fit within one of the categories in this
section .

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Conf. Comm. Rep. No. 112-88, in 1988 House Journal, at 817-18,
1988 Senate Journal, at 690 (emphases added).
I believe that the legislative history of the UIPA does
not evince a clear legislative intent to discard the deliberative
process privilege for three reasons.
First, although the deliberative process privilege was
not included on the Senate’s list of examples of documents that
need not be disclosed because disclosure would frustrate a
legitimate government function, the Senate did not suggest that
this list was exhaustive or exclusive.

Absent any restrictive

language, I believe that the Senate’s omission of the privilege
from its list of examples of documents that could fall within the
frustration of legitimate government function exception
illustrates, at most, an ambiguous intent.

It is possible that

the Senate’s omission suggests an intent to reject the privilege,
especially because the other exceptions identified in the House’s
version of H.B. 2002 were included on the list.

Majority at 27.

However, it is equally possible that, based on the Senate’s
intent to “rely on the developing common law . . . in grey areas
and unanticipated cases,” the Senate omitted the deliberative
process privilege from its list of examples to allow common law
principles to determine whether such documents could fall within
HRS § 92F-13(3).

See S. Stand. Comm. Rep. No. 2580, in 1988
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Senate Journal, at 1094.

Therefore, the Senate’s list of

examples of records that could fall within HRS § 92F-13(3), and
the Conference Committee’s adoption thereof, does not illustrate
a clear intent by the Legislature to reject the deliberative
process privilege under the UIPA.
Second, in other instances where the Senate rejected a
rule encompassed in a provision in the House version of H.B.
2002, the Senate expressly stated its intent to do so.

For

example, with regard to its amendment to another section of the
House version of H.B. 2002, Section 92-50, the Senate explained:
(c) The words “by law” have been deleted. By
this deletion, your Committee specifically rejects the
application of the “legal requirement” test in Town
Crier, Inc. v. Chief of Police of Weston, 361 Mass.
682, 282 N.E. 2d 379 (1972) and Dunn v. Board of
Assessors of Sterling, 1972 Mass. A.S. 901, 282 N.E.2d
385 (1972) (cited in the May 6, 1976 Attorney
General’s memorandum to former Governor George
Ariyoshi) to qualify entries that were made. Nor
should a “legal requirement” test be applied to
records which are “received” for filing .

S. Stand. Comm. Rep. No. 2580, in 1988 Senate Journal, at 1094
(emphasis added).

By contrast, with respect to the Senate’s

omission of inter- or intra-agency deliberative memoranda from
its list of examples of records that may be kept confidential to
avoid the frustration a legitimate government function, the
Senate did not include such express language suggesting an intent
to reject the deliberative process privilege.

Therefore, I

believe the absence of explicit language specifically indicating
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that such an omission by the Senate was deliberate (which is
present in other sections of the Senate Standing Committee
report) further supports that the Legislature did not clearly
intend to reject the privilege’s inclusion under HRS § 92F-13(3).
Third, when read in context, the Senate’s statement
regarding the use of the common law and the Conference
Committee’s statement regarding “currently available records” do
not suggest that the Legislature intended to reject the
deliberative process privilege.
Civil Beat misconstrues the Senate’s remark that “[t]he
common law is ideally suited to the task of balancing competing
interest in the grey areas and unanticipated cases[.]”
Comm. Rep. No. 2580, in 1988 Senate Journal, at 1094.

S. Stand.
In

explaining its approach to defining exceptions to the general
rule requiring public access to government records, the Senate
explicitly expressed an intent to adopt a few categorical
exceptions “[r]ather than list specific records in the statute,
at the risk of being over- or under-inclusive.”

Id.

The Senate

explained that its categorical approach, supplemented by
application of common law principles, was preferable because the
common law was available and “ideally suited to the task of
balancing competing interest in the grey areas and unanticipated
cases, under the guidance of the legislative policy.”
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In this context, the Senate’s statement regarding the
common law illustrated an intent to adopt broader categorical
exceptions to the general rule requiring access, reject the
House’s proposed laundry list of more specific exceptions, and
utilize the common law to clarify the ambiguities that might
arise when applying the exceptions in new and unforeseen
circumstances.

In my view, this statement does not suggest that

the Legislature intended to reject the deliberative process
privilege, as Civil Beat claims.
Similarly, Civil Beat’s argument based on the
Conference Committee’s comment that “[i]t is not the intent of
the Legislature that this section be used to close currently
available records, even though these records might fit within one
of the categories in this section,” Conf. Comm. Rep. No. 112-88,
in 1988 House Journal, at 818, 1988 Senate Journal, at 690, is
unpersuasive.
In support of its assertion that documented inter- and
intra-agency deliberative communications were publicly available
under the predecessor to the UIPA such that the Legislature did
not contemplate their exemption from disclosure under the UIPA,
Civil Beat relies upon the testimony of several witnesses before
the Senate Government Operations Committee.

These witnesses

testified that the House version of H.B. 2002 “would result in
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closing off access to [inter- and intra-agency] records which are
currently open to the public.”

Majority at 25.

Because the

Conference Committee did not intend for the frustration of
government function exception to “close off currently available
records, even though these records might fit within one of the
categories in this section,” Civil Beat uses this testimony to
argue that the Conference Committee did not intend to recognize
the deliberative process privilege.
However, the 1987 Report of the Governor’s Committee on
Public Records and Privacy, which the Legislature considered in
developing the UIPA, see H. Stand. Comm. Rep. No. 342-88, in 1988
House Journal, at 969-70; S. Stand. Comm. Rep. No. 2580, in 1988
Senate Journal, at 1093, also stated that City Managing Director
Jeremy Harris (Managing Director Harris) testified that “internal
correspondence and memoranda . . . are not currently viewed as
public records by government officials under Chapter 92, HRS,
though there are records which the courts have opened up on an
individual basis.”

1 Report of the Governor’s Committee on

Public Records and Privacy at 101 (1987).

Therefore, insofar as

the record does not clearly support Civil Beat’s position that
inter- and intra-agency deliberative communications and memoranda
were categorically available to the public prior to the UIPA’s
enactment, I do not believe that Civil Beat’s argument based on
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the foregoing language in the Conference Committee report is
persuasive.3

Because the legislative history of the UIPA does

not clearly indicate to me that the Legislature meant to reject a
deliberative process privilege, OIP’s adoption of the privilege
is not palpably erroneous.
3.

The Legislature’s actions prior and subsequent to
the enactment of the UIPA
Finally, Civil Beat argues that the Legislature’s

3
According to the Majority, Managing Director Harris’s testimony
reflects an inaccurate view as to whether internal agency correspondence and
memoranda constituted “public records” before the UIPA’s enactment. Majority
at 21. Instead, the Majority posits that all deliberative, predecisional
agency records were “public records” within the meaning of HRS § 92-50 (1985),
the predecessor to the UIPA, because thereunder, “public records were
expansively defined to include essentially all written materials created or
received by an agency, save only those ‘records which invade the right of
privacy of an individual.’” Majority at 21 (quoting HRS § 92-50 (1985)).
Hence, the Majority concludes that “deliberative, pre-decisional agency
records,” including internal agency memoranda and communications generated as
a part of an agency’s decision-making process, “were open to public inspection
under the plain language of HRS Chapter 92.” Majority at 22.
Although the definition of “public record” in HRS § 92-50 was
broad, I am not certain that it necessarily encompassed all “written materials
created or received by an agency.” Contra Majority at 22. HRS § 92-50
contained restricting language that appears to limit the types of records
generated or received by an agency that could constitute “public records.”
For example, HRS § 92-50 required that, in order to be a “public record,” the
document must have been of the type “in or on which an entry has been made or
is required to be made by law.” Alternatively, HRS § 92-50 provided that if
the document was one that an “employee has received or is required to receive
for filing,” such a document could have qualified as a “public record”
thereunder. Moreover, “public records” did “not include records which invade
the right of privacy of an individual.” HRS § 92-50.
Thus, it is possible that certain internal agency memoranda and
communications, including those generated during an agency’s decision-making
and policy development processes, did not constitute “public records” within
the meaning of HRS § 92-50, and therefore, were not available to the public
prior to the enactment of the UIPA. Hence, it is also possible that Managing
Director Harris’s testimony on this point was not wholly inaccurate. Even
taking into account other testimony to the contrary, it appears that the
record remains ambiguous as to whether inter- or intra-agency deliberative
communications generated during an agency’s decision-making process were
publicly available prior to the UIPA’s enactment.

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actions prior and subsequent to the enactment of the UIPA in 2012
indicate that the Legislature intended to reject the deliberative
process privilege under the UIPA.
As to the Legislature’s actions prior to the enactment
of the UIPA, Civil Beat refers to the Legislature’s adoption of
the Hawai#i Rules of Evidence (HRE).

Civil Beat observes that

pursuant to HRE Rule 501,4 the Legislature chose to only
recognize the evidentiary privileges required under the federal
and Hawai#i constitutions and statutes, or provided in the HRE or
other rules adopted by this court.

Civil Beat reasons that

because the Legislature did not incorporate the deliberative
process privilege into the HRE, “the Legislature soundly rejected
the deliberative process privilege as an evidentiary privilege in
Hawai#i state courts.”
But the Legislature’s rejection of the deliberative
process privilege as an evidentiary privilege, which would

4

HRE Rule 501 provides:
Privileges recognized only as provided. Except
as otherwise required by the Constitution of the
United States, the Constitution of the State of
Hawaii, or provided by Act of Congress or Hawaii
statute, and except as provided in these rules or in
other rules adopted by the Supreme Court of the State
of Hawaii, no person has a privilege to:
(1) Refuse to be a witness; or
(2) Refuse to disclose any matter; or
(3) Refuse to produce any object or writing; or
(4) Prevent another from being a witness or
disclosing any matter or producing any object or
writing.

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preclude the use of inter- and intra-agency deliberative
memoranda generated in the course of decision-making and policy
development as evidence in court proceedings,5 does not
necessarily equate to a rejection of the deliberative process
privilege as an exception to the general rule requiring
disclosure of government records under the UIPA.

See Harwood v.

McDonough, 799 N.E.2d 859, 864 (Ill. App. Ct. 2003) (noting that
the Illinois Supreme Court’s rejection of the deliberative
process privilege as an evidentiary privilege did not constitute
a rejection of the privilege as an exemption from the disclosure
requirements under the Illinois public records law).
As to the Legislature’s actions subsequent to the
UIPA’s enactment, Civil Beat avers that in 2015, the Senate
introduced Senate Bill No. 1208 (S.B. 1208).

Civil Beat contends

that S.B. 1208 “would have recognized the deliberative process
privilege as part of the UIPA frustration exception.”

However,

Civil Beat argues, the Legislature “rejected that language
[referencing the privilege] and ultimately enacted the bill
without codifying the deliberative process privilege.”
Civil Beat’s argument is unpersuasive because S.B. 1208
and its accompanying legislative history do not relate to whether

5

Regarding the scope of the HRE’s applicability, HRE Rule 101
states: “These rules govern state proceedings in the courts of the State of
Hawaii, to the extent and with the exceptions stated in rule 1101.”

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the deliberative process privilege has been recognized under the
UIPA.

S.B. 1208 concerns the Employees’ Retirement System (ERS),

not the UIPA.

As initially drafted, S.B. 1208 would have

authorized the ERS Board of Trustees to hold meetings closed to
the public in order to, inter alia, “consider draft reports,
memoranda, and preliminary recommendations from staff,
consultants, actuaries, and other agencies, subject to the
deliberative process privilege under [HRS] section 92F-13(3).”
S.B. 1208, 28th Leg., Reg. Sess. (2015) (emphasis added).
It is true that the relevant legislative history
underlying S.B. 1208 indicates that the Senate subsequently
removed “the description of the privilege . . . as a deliberate
process privilege.”
Journal, at 1097.

S. Stand. Comm. Rep. No. 663, in 2015 Senate
But, prior to describing the nature and extent

of its amendments to the original version, the Senate explained:
Your Committee finds that the Board of Trustees
of the Employees’ Retirement System have a fiduciary
duty to invest funds for the benefit of the System and
its members. On many occasions, this may require that
the Board of Trustees review and consider confidential
or proprietary information relating to investments.
Your Committee finds that in appropriate situations,
it would be beneficial for the Board to be able to
review and consider such information in executive
session.

Id.

While the Committee’s explanation appears to elucidate its

reasons for removing the “deliberative process privilege”
language from the original draft of S.B. 1208, this explanation

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sheds no light on whether the deliberative process privilege was
properly recognized under the UIPA.

In fact, the Senate’s

initial inclusion of the language “subject to the deliberative
process privilege under section 92F-13(3)” in S.B. 1208 arguably
implies that the Senate had acknowledged and accepted the
deliberative process privilege under the UIPA, insofar as the
Senate attempted to import the doctrine from the UIPA into the
ERS.
To conclude, the plain language of the UIPA, the
legislative history underlying the UIPA, and the Legislature’s
actions prior and subsequent to the UIPA’s enactment do not
suggest to me that the Legislature clearly intended to reject the
deliberative process privilege as an exception to the UIPA’s
general rule requiring public access to government records.
Therefore, in my view, OIP’s recognition of the deliberative
process privilege under HRS § 92F-13(3) is not palpably
erroneous.

Consequently, I would hold that the circuit court did

not err in granting summary judgment in favor of Defendants on
Count I.
B.

OIP’s current test which determines whether a document falls
within the deliberative process privilege is palpably
erroneous.
Civil Beat’s second point of error requires this court

to decide whether OIP’s two-part test for determining whether a
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document falls within the deliberative process privilege is
palpably erroneous.

OIP has articulated its test as follows:

To invoke the deliberative process privilege, an
agency must show that the document sought to be
protected meets two requirements: First, the document
must be “predecisional,” i.e., received by the
decision-maker prior to the time the agency decision
or policy is made. Second, the document must be
“deliberative,” i.e., a recommendation or opinion on
agency matters that is a direct part of the decisionmaking process. The privilege thus protects the backand-forth discussions that lead up to the agency’s
decision, not the final policy of the agency.

OIP Op. Ltr. 04-15 at 4-5 (emphasis added) (citations omitted).
Civil Beat contends that even if OIP’s adoption of the
deliberative process privilege is not palpably erroneous, OIP’s
current two-part test is.

Civil Beat argues that the test

currently applied by OIP is overbroad, as it improperly
“assume[s] that disclosure of agency deliberations will frustrate
government function in every case.”

Civil Beat asserts that the

scope of the privilege should be much narrower, and suggests that
“[i]n light of Hawaii’s unique declaration of policy favoring
access to deliberative records, a purported Hawai#i deliberative
process privilege must diverge from the expansive . . . federal
privilege.”

Accordingly, Civil Beat argues that the privilege

“must be balanced against the public interest in disclosure of
the departmental budget memoranda.”
I agree.

HRS § 92F-2 states in relevant part:

Opening up the government processes to public scrutiny
and participation is the only viable and reasonable

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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.
. . . .
This chapter shall be applied and construed to
promote its underlying purposes and policies, which
are to:
(1)
Promote the public interest in disclosure;
(2)
Provide for accurate, relevant, timely,
and complete government records;
(3)
Enhance governmental accountability
through a general policy of access to
government records;
(4)
Make government accountable to individuals
in the collection, use, and dissemination
of information relating to them; and
(5)
Balance the individual privacy interest
and the public access interest, allowing
access unless it would constitute a
clearly unwarranted invasion of personal
privacy.

(Emphases added.)
In other words, while the Legislature acknowledged that
the UIPA does not mandate the disclosure of all government
records, see HRS § 92F-13, it also declared that “it is the
policy of this State that the formation and conduct of public
policy . . . shall be conducted as openly as possible.”
92F-2.

HRS §

As such, the language in HRS § 92F-2 indicates that the

Legislature intended that exceptions to the general rule
requiring public access, like the deliberative process privilege,
be narrowly construed.

Consistent with this intent, OIP has

acknowledged that the UIPA’s exceptions to the general rule
requiring public access to government records “should be narrowly
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construed with all doubts resolved in favor of disclosure.”

OIP

Op. Ltr. 90-3 at 7.
Notwithstanding the aforementioned principles, OIP’s
test creates a fairly broad exception to the UIPA’s general rule
regarding public access to government records.

Under the current

test applied by OIP, an agency need only demonstrate two general
requirements before the document may be shielded from public
access under the deliberative process privilege: (1) that the
document was generated within a specific chronological window
(i.e., at some point during the deliberative process prior to the
adoption of an agency policy or the finalization of an agency
decision); and (2) that the document’s contents contained
personal opinions, advice, or recommendations of agency staff
that played some role, regardless of how significant or minute,
in the deliberative process.

Put differently, OIP’s current test

presumes that the disclosure of any and all predecisional and
deliberative documents would equally impact the quality of agency
decision-making at all levels and all stages of the deliberative
process.

As a consequence of this test’s application, an

extensive, sweeping range of documents -- all documented interand intra-agency communications generated in the course of agency
decision-making and policy development -- is completely shielded
from public view.
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Accordingly, OIP’s recognition of an expansive, rather
than narrow, exception to the general rule requiring public
access to government records is inconsistent with the
Legislature’s explicit intent to “[p]romote the public interest
in disclosure” and “[e]nhance governmental accountability[.]”
See HRS § 92F-2.

This test is therefore palpably erroneous.

I believe there is a better approach to resolving
whether certain government records may be shielded from public
disclosure that is more consistent with the UIPA than OIP’s
overly expansive interpretation of the deliberative process
privilege or the Majority’s unduly narrow reading of the statute.
This approach would require the government to more fully describe
in the first instance why a specific document qualifies for the
privilege, and require the court to balance that interest with a
party’s statutory interest in disclosure.

See HRS § 92F-2.

This approach is not unlike the test developed by the
Colorado Supreme Court in White, 967 P.2d 1042.

The White court,

in recognizing the deliberative process privilege for the first
time, imposed technical procedural requirements on the government
to ensure that a “party’s interest in the information is not
‘submerged beneath governmental obfuscation and
mischaracterization[.]’”

967 P.2d at 1053 (citing Vaughn v.

Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973)).
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requirements, which the White court stated could be established
through an indexing system,6 should (1) provide a specific
description of the document claimed to be privileged; (2) explain
why the document qualifies for the privilege, including
descriptions of the deliberative process to which the document is
related and the role played by the document in that process; (3)
discuss why disclosure of the document would be harmful; and (4)
in the case of a large document, distinguish between those
portions of the document that are disclosable and those that are
allegedly privileged.

Id. at 1053.

These requirements would

provide parties seeking disclosure with information about the
allegedly privileged material and provide them with a meaningful
opportunity to challenge the government’s claims.

Id. at 1053-

54.
Even after establishing a preliminary showing, in
accordance with the Legislature’s stated purpose to “[e]nhance
governmental accountability through a general policy of access to
government records,” a court must balance the government’s
interest in confidentiality with the discoverants’ interest in
disclosure of the materials.7

See HRS § 92F-2; see also Fuller

6

This indexing system was first introduced by the D.C. Circuit in
Vaughn, and is referred to in several jurisdictions as the “Vaughn index.”
7

While it is true that HRS § 92F-13(3) does not explicitly provide
a balancing of interests, Majority at 39, as noted previously, the Legislature
(continued...)

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v. City of Homer, 75 P.3d 1059, 1063 (Alaska 2003).

In doing so,

a court should not mechanically consider whether a document is
“predecisional” and “deliberative”.

Instead, a court should

weigh the government’s interest in confidentiality with a party’s
interest in disclosure on a case-by-case basis.
Here, in concluding under OIP’s current test that the
memoranda at issue were predecisional and deliberative, the
circuit court did not appropriately balance the public interest
in disclosure when it granted summary judgment to Defendants on
Count II.

Therefore, I would vacate the circuit court’s grant of

summary judgment as to Count II and remand to the circuit court
to apply the considerations articulated above to the documents at
issue in this case.
II.

CONCLUSION

Although I believe that OIP’s recognition of a
deliberative process privilege is not palpably erroneous, OIP’s
adoption of its current test that governs whether a document is
covered by the privilege is palpably erroneous.

7
(...continued)
contemplated that exceptions to public disclosure be developed through the
common law. Indeed, the Senate stated that it wished to “rely on the
developing common law,” which was “ideally suited to the task of balancing
competing interest in the grey areas and unanticipated cases,” to determine
which records would remain confidential. See S. Stand. Comm. Rep. No. 2580,
in 1988 Senate Journal, at 1094. The Senate’s exceptions to the rule
requiring disclosure were eventually adopted by the report of the Conference
Committee. Conf. Comm. Rep. No. 112-88, in 1988 House Journal, at 818, 1988
Senate Journal, at 690.

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I would therefore vacate in part the circuit court’s
February 5, 2016 judgment, vacate the circuit court’s January 13,
2016 order granting Defendants’ motion for summary judgment on
Count II, and remand for further proceedings consistent with the
principles outlined above.

I would affirm the circuit court’s

January 13, 2016 order granting Defendants’ motion for summary
judgment as to Count I.
Accordingly, I respectfully dissent.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama

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