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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCAP-XX-XXXXXXX
                                                              21-DEC-2018
                                                              08:12 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-XX-XXXXXXX

       APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
            (CAAP-XX-XXXXXXX; CIV. NO. 15-1-0891-05)

                           DECEMBER 21, 2018

     McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J.,
         DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

                 OPINION OF THE COURT BY 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
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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


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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.

                  I.     BACKGROUND AND PROCEDURAL HISTORY

             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

     1
            Pursuant to Sections 7-106(i) and 17-103(2)(f) of the Revised
Charter of the City and County of Honolulu, the Board of Water Supply and the
Honolulu Rapid Transit Authority prepare their own operating budgets.




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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




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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


     2
            Although Grube did not further identify the legal authority for
his request, the disclosure of government records in Hawai‘i is broadly
governed by the Uniform Information Practices Act, which is codified in
Hawaii Revised Statutes Chapter 92F. HRS § 92F-11 (2012), which sets forth
an agency’s affirmative disclosure obligations, provides in relevant part as
follows:

           (a) All government records are open to public inspection
           unless access is restricted or closed by law.

           (b) Except as provided in section 92F-13, each agency upon
           request by any person shall make government records
           available for inspection and copying during regular
           business hours.
     3
            With some exceptions, HAR § 2-71-13(b) (1999) requires an agency
to provide notice of whether it intends to withhold or disclose a record
within ten business days of receiving a formal public records request and,
when appropriate, to disclose the document within five business days
thereafter. HAR §§ 2-71-13(c) and 2-71-15 (1999) allow an agency to extend

                                                           (continued . . .)


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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


(. . . continued)

the period to twenty business days for providing notice of its intent when
extenuating circumstances apply. In its form notice to Grube, BFS checked
the boxes indicating that extenuating circumstances were present because
Grube’s request required “extensive agency efforts to search, review, or
segregate the records, or otherwise prepare the records for inspection or
copying” and that the agency needed additional time “to avoid an unreasonable
interference with its other statutory duties and functions.”
       4
            BFS or Grube could have requested that the State of Hawai‘i Office
of Information Practices review the record request pursuant to Hawaii Revised
Statutes §§ 92F-15.5(a) or 92F-42(1)-(2) (2012), but neither party elected to
do so.
      5
            HRS § 92F-13 (2012) provides in relevant part as follows:

            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[.]




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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 transparency.            On April

30, 2015, BFS provided Civil Beat with a third notice revising




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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

     6
            The City and BFS have at various stages of this case
characterized this notice as a waiver of the deliberative process privilege
with respect to the portions of the requested records BFS intended to
disclose. During oral argument before this court, however, counsel for the
City and BFS stated that BFS determined these portions of the records were
not protected by the privilege, making a waiver unnecessary. Oral Argument
at 00:49:20-58, Peer News LLC v. City & Cty. of Honolulu (No. SCAP-16-114),
http://oaoa.hawaii.gov/jud/oa/17/SCOA_060117_SCAP_16_114.mp3.
     7
            Additionally, BFS stated that it intended to withhold information
regarding specific staff salaries pursuant to HRS § 92F-13(1), which provides
as follows: “This part shall not require disclosure of . . . (1) Government
records which, if disclosed, would constitute a clearly unwarranted invasion
of personal privacy.” HRS § 92F-14(b)(6) (2012) elaborates, “The following
are examples of information in which the individual has a significant privacy
interest: . . . (6) Information describing an individual’s finances, income,
assets, liabilities, net worth, bank balances, financial history or
activities, or creditworthiness.” Civil Beat does not challenge BFS’s right
to withhold this information, and we therefore do not address the matter
further.
     8
           The Honorable Virginia L. Crandall presided.




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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

     9
            The City and BFS initially filed a third-party complaint against
OIP, arguing that any declaratory relief or litigation expenses that Civil
Beat was entitled to should be granted against OIP and not the City or BFS.
OIP answered arguing, inter alia, that it had never issued any opinion
regarding the records at issue in this case and that it was not responsible
for the City or BFS’s application of its precedents. On July 23, 2015, the
City, BFS, and OIP stipulated to the dismissal without prejudice of the
third-party complaint against OIP, which the circuit court approved and
ordered.
     10
            Civil Beat first presented the arguments contained in its
oppositions/cross-motions in a prior motion for summary judgment, which was
denied.




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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


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common law, it is alternately supported by HRS § 92F-13(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-13(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:

      11
            The State of Hawaii was granted leave to participate as amicus
curiae and filed a brief supporting the City’s stance that a deliberative
process privilege exists under the UIPA. The State took no position,
however, as to whether the City properly applied the privilege when it
withheld access to the requested records in the present case.




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           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.

                        II.   STANDARDS OF REVIEW

           The legislature has directed that OIP’s opinions be

considered as precedent in a UIPA enforcement action such as



     12
             In their answering brief, the City and BFS argue that these
points of error are a “gross mischaracterization” of the arguments made below
and urge the court to instead accept their alternate points of error. As
discussed, Civil Beat argued in its cross-motion for summary judgment in
Count II that the circuit court should consider the public’s interest in
disclosure when determining whether the operating budget requests were
protected by the privilege. Civil Beat also contended that OIP’s adoption of
the deliberative process privilege effectively created a presumption that all
agency deliberations are confidential. We therefore hold that all of Civil
Beat’s points of error were properly preserved, and we consider them
accordingly.




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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).

                            III. DISCUSSION

          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


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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-13(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


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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 policy of access to government

records.”


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               Insofar as a tradeoff exists between inhibiting the

frank exchange of ideas and ensuring agency accountability

through public oversight, HRS § 92F-2 clearly expresses a policy

preference in favor of “[o]pening up the government processes to

public scrutiny.”        The list of the UIPA’s underlying purposes

and policies, which was provided to guide our interpretation,

repeatedly emphasizes that ensuring government accountability

through public access and disclosure was among the legislature’s

top priorities in enacting the statute.13            Moreover, the law

expressly states that “the formation . . . of public policy,”

including “discussions” and “deliberations,” “shall be conducted

as openly as possible.”          HRS § 92F-2.

               As the City and BFS readily admit, the deliberative

process privilege is specifically designed to protect from

public scrutiny “documents reflecting advisory opinions,

recommendations[,] and deliberations comprising part of a

process by which government decisions and policies are

formulated”--the precise opposite of the policy HRS § 92F-2

explicitly declares the UIPA should be interpreted to promote.

(Emphasis added) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S.

      13
               The only countervailing consideration included in the rules of
construction    is the personal privacy of individuals. See HRS § 92F-2(5)
(stating the    UIPA should be interpreted to “[b]alance the individual privacy
interest and    the public access interest, allowing access unless it would
constitute a    clearly unwarranted invasion of personal privacy”).




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132, 150 (1975)).     Indeed, adopting the City and BFS’s argued

interpretation would render much of HRS § 92F-2 a dead letter,

for one is hard pressed to imagine “deliberations” or

“discussions” constituting the “formation . . . of government

policy” that are not pre-decisional and deliberative.14            Such a

result would be contrary to the “cardinal rule of statutory

construction that courts are bound, if rational and practicable,

to give effect to all parts of a statute.”          Coon v. City & Cty.

of Honolulu, 98 Hawai‘i 233, 259, 47 P.3d 348, 374 (2002)

(quoting Franks v. City & Cty. of Honolulu, 74 Haw. 328, 339,

843 P.2d 668, 673 (1993)).       As this court has long held, “no

clause, sentence, or word shall be construed as superfluous,

void, or insignificant if a construction can be legitimately

found which will give force to and preserve all words of the

statute.”    Id. (quoting Franks, 74 Haw. at 339, 843 P.2d at

673).

     14
            Communications between decision-makers and their subordinates
regarding adopting available courses of action prior to the making of a
decision is the very definition of deliberations in common usage, case law,
and the OIP’s own precedents. See Deliberation, Black’s Law Dictionary (10th
ed. 2014) (“The act of carefully considering issues and options before making
a decision or taking an action[.]”); Abramyan v. U.S. Dep't of Homeland Sec.,
6 F.Supp.3d 57, 64 (D.D.C. 2013) (“A record is deliberative if ‘it reflects
the give-and-take of the consultative process.’” (emphasis added) (quoting
Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006)); OIP Op.
Ltr. No. 90-3 at 12 (explaining that a document is deliberative when it
“makes recommendations or expresses opinions on . . . policy matters”).
Thus, the City and BFS’s analysis effectively reads out of HRS § 92F-2 the
express “policy of this State that the formation and conduct of public
policy--the discussions, deliberations . . . of government agencies--shall be
conducted as openly as possible.”




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           In light of the policy statement and rules of

construction contained in HRS § 92F-2, the disclosure of pre-

decisional, deliberative records cannot be said to inherently

frustrate a legitimate government function within the meaning of

the UIPA.15   Thus, because the deliberative process privilege


     15
            This is not to say that certain types of deliberative
communications will not qualify for withholding when the government can
identify a concrete connection between disclosure and frustration of a
particular legitimate government function. For instance, if disclosed prior
to a final agency decision, many pre-decisional draft documents may impair
specific agency or administrative processes in addition to inhibiting agency
personnel from expressing candid opinions. However, an agency must clearly
describe what will be frustrated by disclosure and provide more specificity
about the impeded process than simply “decision making.” See infra Section
III.D.

            Additionally, writings that are truly preliminary in nature, such
as personal notes and rough drafts of memorandum that have not been finalized
for circulation within or among the agencies, may not qualify as government
records for purposes of an agency’s disclosure obligations. See OIP Op. Ltr.
No. 04-17 (Oct. 27, 2004) (“[W]e find, in line with the number of other state
and federal courts that have similarly construed other open records laws,
that the determination of whether or not a record is a ‘government record’
under the UIPA or a personal record of an official depends on the totality of
circumstances surrounding its creation, maintenance and use. . . . [C]ourts
have distinguished personal papers. . . from public records where they ‘are
generally created solely for the individual’s convenience or to refresh the
writer’s memory, are maintained in a way indicating a private purpose, are
not circulated or intended for distribution within agency channels, are not
under agency control, and may be discarded at the writer's sole discretion.’”
(internal citations omitted)(quoting Yacobellis v. Bellingham, 780 P.2d 272,
275 (Wash. App. 1989)); Shevin v. Byron, Harless, Schaffer, Reid & Assocs.,
Inc., 379 So.2d 633, 640 (Fla. 1980) (“To be contrasted with ‘public records’
are materials prepared as drafts or notes, which constitute mere precursors
of governmental ‘records’ and are not, in themselves, intended as final
evidence of the knowledge to be recorded . . . . [unless] they supply the
final evidence of knowledge obtained in connection with the transaction of
official business.”); cf. Conn. Gen. Stat. § 1-210(e)(1) (2018)
(“[D]isclosure shall be required of: . . . [i]nteragency or intra-agency
memoranda or letters, advisory opinions, recommendations or any report
comprising part of the process by which governmental decisions and policies
are formulated, except disclosure shall not be required of a preliminary
draft of a memorandum, prepared by a member of the staff of a public agency,
which is subject to revision prior to submission to or discussion among the
members of such agency.”).


                                                           (continued . . .)


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attempts to uniformly shield records from disclosure without a

determination that disclosure would frustrate a legitimate

government function, it is inconsistent with the plain language

of HRS § 92F-13(3).

                B. The Legislative History of the UIPA

            A review of the UIPA’s legislative history confirms

that HRS § 92F-13(3) was not intended to create a blanket

privilege for deliberative documents.

            Prior to 1988, public access to government records in

Hawai‘i was governed by two primary statutes that were often in

tension, as well as a wide range of other statutes concerning

access to specific records.       See 1 Report of the Governor’s

Committee on Public Records and Privacy apps. B-D (1987)

(setting forth statutes governing disclosure of government

records) (hereinafter Governor’s Report).          Hawai‘i’s “Sunshine

Law,” codified in HRS Chapter 92, contained a broad disclosure

mandate.    The law stated that “[a]ll public records shall be

available for inspection by any person” with limited exceptions

for documents related to litigation, certain records that would


(. . . continued)

            It is also noted that, when there is a true concern that
disclosure of deliberative communications may expose specific individuals to
negative consequences, the individuals’ identities may potentially qualify
for withholding pursuant to HRS § 92F-13(1) if their privacy interests
outweigh the public’s interest in disclosure.




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damage the “character or reputation of any person,” and specific

records for which state or federal law provided otherwise.              HRS

§ 92-51 (1985).    Hawai‘i’s Fair Information Practice law, on the

other hand, contained a broad prohibition on the disclosure of

“personal records,” which were expansively defined to include

“any item, collection, or grouping of information about an

individual that is maintained by an agency.”          HRS § 92E-1

(1985); see also HRS § 92E-4 (1985).

          The tension between HRS Chapters 92 and 92E, which

were “written at different times for different purposes and

without regard for each other,” created substantial conflict and

uncertainty, leading Governor John Waihee to convene an Ad Hoc

Committee on Public Records and Privacy Laws in 1987 to consider

possibilities for reform.      Governor’s Report at 2-3.        After

receiving public comment and holding a series of public

hearings, the Committee produced a four-volume Governor’s Report

that comprehensively detailed the competing interests implicated

on a wide range of related issues in order to provide a factual

foundation for sound policy making.        Id. at 5.

          In its chapter on “Current Issues and Problems,” the

Governor’s Report contained a section entitled “Internal

Government Processes.”     Id. at 101.     The Report described the

internal processes of government as “[o]ne of the areas of

greatest tension in any review of public records law,” noting


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the conflict between ensuring government accountability and

permitting agencies to freely communicate internally.             Id.

While discussing the differing interests at stake in the

disclosure of internal agency correspondence and memoranda, the

Governor’s Report noted that, based on testimony from the

Honolulu Managing Director, “[t]hese materials 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.”       Id.

           However, a review of applicable statutes and caselaw

makes clear that this view was inaccurate.          Under HRS Chapter

92, 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.”       HRS § 92-50 (1985) (“As used in this

part, ‘public record’ means any written or printed report, book,

or paper . . . of the State or of a county . . . in or on which

an entry has been made . . . or which any public officer or

employee has received . . . .” (emphases added)).16            The

definition did not exclude deliberative communications, nor were




     16
            The dissent’s attempted narrowing of HRS § 92-50’s parameters,
Dissent at 22 n.3, is contrary to the plain text of the statute.




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such public records excluded from the broad disclosure mandate

contained in HRS § 92-51.

           Thus, prior to the enactment of the UIPA,

deliberative, pre-decisional agency records were open to public

inspection under the plain language of HRS Chapter 92.             It is

therefore unsurprising that both available court decisions on

the subject resulted in an order that the government agency

disclose the deliberative materials sought.           See Pauoa-Pacific

Heights Cmty. Grp. v. Bldg. Dep’t, 79 HLR 790543, 790556 (Jan.

9, 1980) (ordering disclosure of “building applications,

building plans, specifications, supporting documentation and

inter and intra office memorandum, reports and recommendations

requested by Plaintiffs” (emphasis added)); Honolulu Advertiser,

Inc. v. Yuen, 79 HLR 790117, 790120, 790128 (Oct. 10, 1979)

(ordering the release of “all interoffice and intraoffice

memorandum, memos to file, or telephone logs pertaining to the

Mililani Sewage Treatment Plant”).17




     17
            In the order issued in Yuen, the court initially stated that “the
state of Hawaii has no discretion to withhold the requested records contained
in its files from the public unless the records requested are specifically
exempted from public inspection by constitution, statute, regulation, court
rule, or common law privilege.” Yuen, 79 HLR at 790128. Prior to filing its
order, however, the court crossed out “or common law privilege,” appearing to
specifically reject upon further consideration any argument that the
government could rely upon common law principles like the deliberative
process privilege to resist its statutory disclosure obligations. See id.




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          Spurred by the release of the Governor’s Report,

legislators in the Hawai‘i House of Representatives in 1988

introduced the bill that would become the UIPA, largely basing

the law on the Model Uniform Information Practices Code (MUIPC)

that had been promulgated in 1980 by the National Conference of

Commissioners on Uniform State Laws.        H. Stand. Comm. Rep. No.

342-88, in 1988 House Journal, at 972.         As adopted by the House,

the bill incorporated twelve exceptions to disclosure derived

from Section 2-103 of the MUIPC, including an exemption for

deliberative agency records:

          § -13 Information not subject to duty of disclosure. (a)
          This chapter shall not require disclosure of:

                (1) Information compiled for law enforcement
                purposes, including victim or witness assistance
                program files, if the disclosure would:

                      (A) Materially impair the effectiveness of an
                      ongoing investigation, criminal intelligence
                      operation, or law enforcement proceeding;

                      (B) Identify a confidential informant;

                      (C) Reveal confidential investigative
                      techniques or procedures, including criminal
                      intelligence activity; or

                      (D) Endanger the life of an individual;

                (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 decision-making processes[.]

                (3) Material prepared in anticipation of litigation
                which would not be available to a party in litigation


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                with the agency under the rules of pretrial discovery
                for actions in a circuit court of this State;

                (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; or information
                not otherwise available under the law of this State
                pertaining to real property under consideration for
                public acquisition before making a purchase
                agreement;

                (7) Administrative or technical information,
                including software, operating protocols, employee
                manuals, or other information, the disclosure of
                which would jeopardize the security of a record-
                keeping system;

                (8) Proprietary information, including computer
                programs and software and other types of information
                manufactured or marketed by persons under exclusive
                legal right, owned by the agency or entrusted to it;

                (9) Trade secrets or confidential commercial and
                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, 14th Leg., Reg. Sess., § 1 at 8-10 (1988) (emphasis

added).




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            During consideration by the Senate, the Senate

Government Operations Committee heard testimony from a number of

parties critical of the exemption for inter-agency or intra-

agency advisory, consultative, or deliberative material.             The

witnesses argued that the exemption would close many agency

records that were open to the public under then-existing law.

The Chairman of the non-profit government watchdog group Common

Cause Hawai‘i, for example, testified that the exemption

“relating to inter and intra-agency records . . . would result

in closing off access to records which are currently open to the

public,” resulting in “a major NET loss of public information.”

The Honolulu Advertiser and KHON-TV also objected to the

exemption, stating that it would “appear to deny access to

documents which are now public records under existing law and

which are critical to the public’s right to know.”            And one of

the former members of the Ad Hoc Committee on Public Records and

Privacy that created the Governor’s Report testified that the

provision “relating to inter- and intra-agency records would

result in closing off access to records which are currently open

to the public.”18



     18
            The former Ad Hoc Committee member noted that “although access to
such records is resisted in practice, the only Hawaii legal case resulted in
the disclosure of this type of internal agency correspondence.”




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          After receiving this testimony, the Senate version of

the bill was amended to remove the twelve specific exemptions in

the House bill and add four of the more general exemptions

contained under current law, including the frustration of a

legitimate government function exception now codified in HRS §

92F-13(3).   S. Stand. Comm. Rep. No. 2580, in 1988 Senate

Journal, at 1095.    Nine of the twelve exemptions contained in

the House bill were included in the Standing Committee Report--

in the same order in which they occurred in the House bill--as

examples of records for which disclosure would frustrate a

legitimate government function:

          (b) Frustration of 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 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,
                including software, operating protocols and employee
                manuals, which, if disclosed, would jeopardize the
                security of a record-keeping system;

                (6) Proprietary information, such as research
                methods, records and data, computer programs and



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                  software and other types of information manufactured
                  or marketed by persons under exclusive legal right,
                  owned by an agency or entrusted to it;

                  (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.   Of the three exemptions contained in the House bill that

were not included as examples of records that would frustrate a

legitimate government interest if disclosed, two were

encompassed by other provisions of the Senate bill.19             Only one

exemption that was present in the House bill was omitted

entirely: the deliberative process provision that the testifying

witnesses had objected to on the basis that it would close

records that were open under then-existing law.            Compare id.,

with H.B. 2002, 14th Leg., Reg. Sess., § 1 at 8-10 (1988).

            That the omission was intentional is confirmed by the

report of the Conference Committee, which opted to adopt the

general exceptions to disclosure contained in the Senate’s

version of the bill.       In discussing the frustration of a

      19
            Section -13(a)(3), which exempted nondiscoverable litigation
materials, was recodified as a separate exception to disclosure in the
provision that would become HRS § 92F-13(2). Similarly, section -13(a)(12),
which exempted individually identifiable records, was encompassed by the
provision that would become the HRS § 92F-13(1) exception that shields
records when disclosure would constitute “a clearly unwarranted invasion of
personal privacy.”




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legitimate government function exception, the Conference

Committee Report referenced the examples listed in the Senate

Standing Committee Report before stating, “The records which

will not be required to be disclosed under [this section] 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.”          Conf. Comm. Rep. No.

112-88, in 1988 House Journal, at 818 (emphasis added).

           Thus, the legislative history of the UIPA indicates

that the legislature made a conscious choice not to include a

deliberative process privilege in the UIPA because it would

close off records that were historically available to the public

under Hawai‘i law.20     OIP’s adoption of such a privilege is




     20
            Other legislative history further demonstrates the Hawai‘i
legislature’s rejection of the deliberative process privilege. When adopting
the Hawaii Rules of Evidence (HRE) in 1980, for instance, the Hawaii
legislature disclaimed all common law privileges that were not codified by
statute--including the deliberative process privilege that existed under
federal common law. See HRE Rule 501 & cmt. In choosing which privileges to
so codify, the legislature and judiciary declined to adopt a deliberative
process privilege despite one being contained in the proposed federal rules
after which the HRE were modeled. See Rules of Evidence for the United
States Courts & Magistrates, 56 F.R.D. 183, 251-52 (Nov. 20, 1972)
(containing a proposed Rule 509 granting the government a privilege to refuse
disclosure of “official information,” which was defined to include
“intragovernmental opinions or recommendations submitted for consideration in
the performance of decisional or policymaking functions”); HRE Rule 501 cmt.
(noting that the proposed Rules of Evidence for U.S. Courts and Magistrates
served as a model for the HRE).




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therefore contrary to the clear signals the legislature provided

as to the intended functioning of the statute.

C. OIP’s Interpretation of HRS § 92F-13(3) is Palpably Erroneous

           The legislature has provided that OIP’s

interpretations of the UIPA in an action to compel disclosure

should generally be considered precedential.          HRS § 92F-15(b).

Nevertheless, our precedents and the UIPA itself make clear that

we are not bound to acquiesce in OIP’s interpretation when it is

“palpably erroneous.”     Peer News LLC v. City & Cty. of Honolulu,

138 Hawai‘i 53, 67, 376 P.3d 1, 15 (2016); HRS § 92F-15(b).            This

is to say that “judicial deference to an agency’s interpretation

of [even] ambiguous statutory language is ‘constrained by our

obligation to honor the clear meaning of a statute, as revealed

by its language, purpose, and history.’”         Kanahele v. Maui Cty.

Council, 130 Hawai‘i 228, 244, 307 P.3d 1174, 1190 (2013)

(quoting Morgan v. Planning Dep’t, Cty. of Kaua‘i, 104 Hawai‘i

173, 180, 86 P.3d 982, 989 (2004)).

           We have held that, even when OIP has maintained a

position for many years without challenge, it is this court’s

duty to reject that position if it is plainly at odds with the

UIPA.   In ‘Ōlelo: The Corp. for Community Television v. OIP, for

instance, this court considered the “totality of the

circumstances” test OIP had adopted from out-of-jurisdiction

precedent to identify an “agency” for purposes of the UIPA.                116


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Hawai‘i 337, 346-49, 173 P.3d 484, 493-96 (2007).           Though the

test had been applied in nine OIP opinions over the course of

seventeen years,21 this court nonetheless held it invalid because

it was contrary to the “plain and unambiguous” definition of

“agency” contained in HRS § 92F–3 (1993).          Id. at 351, 173 P.3d

at 498.    Similarly, in a previous case also entitled Peer News

LLC v. City & County of Honolulu, this court determined that a

nineteen-year-old OIP opinion stating that police officers have

only a de minimis privacy interest in employment-related

misconduct information was palpably erroneous because the

interpretation rendered portions of the UIPA a “nullity.” 138

Hawai‘i at 67, 376 P.3d at 15.       Such a result was “inconsistent

with [the] underlying legislative intent” of the statute, we

held.     Id. at 67 n.10, 376 P.3d at 15 n.10.

            Like OIP’s interpretation of HRS § 92F-3 in ‘Ōlelo, OIP

has maintained in multiple opinions issued over an extended

period that HRS § 92F-13(3) creates a deliberative process

privilege.22    As discussed, however, such an interpretation is



      21
            See OIP Op. Ltr. Nos. 05-09, 04-02, 02-08, 94-24, 94-23, 94-05,
93-18, 91-05, 90-31.
     22
            See OIP Op. Ltr. No. F19-01 at 9 (Oct. 11, 2018) (“OIP has issued
a long line of opinions since 1989 that recognize and limit the deliberative
process privilege as a form of the frustration exception in section 92F-
13(3).”); see also, e.g., OIP Op. Ltr. Nos. 07-11, 04-15, 00-01, 93-19, 91-
24, 90-8, 90-3, 89-9.


                                                           (continued . . .)


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contrary to the clear and unambiguous language of HRS § 92F-

13(3) and the statement of purposes and policies contained in

HRS § 92F-2.    And, like in Peer News, the privilege is plainly

inconsistent with the legislative history of the UIPA, which

indicates that the legislature specifically rejected a

deliberative process exception before enacting the law.23             OIP

therefore palpably erred in adopting an interpretation of HRS §

92F-13(3) that is irreconcilable with the plain text and




(. . . continued)

            The City and BFS argue that, by failing to act to correct these
OIP opinions, the legislature has tacitly approved OIP’s interpretation of
HRS § 92F-13(3). As the United States Supreme Court has stated, even a very
long period of legislative silence cannot be invoked to validate a statutory
interpretation that is otherwise impermissible. Zuber v. Allen, 396 U.S.
168, 185 n.21 (1969). Legislative inaction may indicate a range of
conditions other than approval, including “unawareness, preoccupation, []
paralysis,” or simply trust in the state’s court system to correct a clearly
inconsistent interpretation. Id. We therefore decline to recognize
legislative acquiescence in OIP’s interpretation of HRS § 92F-13(3).
      23
            The OIP opinions do not truly engage with the clear negative
implication of the UIPA’s legislative history. In the 1989 opinion adopting
the privilege, OIP set forth the Senate Committee Report’s examples of
records that may fall under HRS § 92F-13(3) before summarily asserting that
“[a]nother example of government records which if disclosed may result in the
frustration of a legitimate government function are inter-agency and intra-
agency memoranda or correspondence.” OIP Op. Ltr. No. 89-9 at 9. The
opinion then discussed a number of federal cases interpreting the
deliberative process exception contained in the federal Freedom of
Information Act, 5 U.S.C. § 552(b)(5). OIP Op. Ltr. No. 89-9 at 9-11. But
these cases interpreting the federal statute are relevant to the Hawai‘i
legislature’s intent when enacting the UIPA only insofar as they demonstrate
that the legislature was clearly aware that other jurisdictions had codified
the deliberative process privilege, thus making their rejection of such a
privilege all the more clear. Importantly, in adopting the privilege, OIP
failed to consider or even mention those aspects of the UIPA’s legislative
history that demonstrate that the privilege had been intentionally omitted
from the final version of the statute.




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legislative intent of the statute.24          See Peer News, 138 Hawai‘i

at 67, 376 P.3d at 15; ‘Ōlelo, 116 Hawai‘i at 349, 173 P.3d at

496.    We accordingly conclude that the circuit court erred by

upholding OIP’s interpretation and by granting summary judgment

to the City and BFS.

                  D. The Requirements of HRS § 92F-13(3)

             Because we hold that OIP palpably erred in adopting a

deliberative process privilege pursuant to the HRS § 92F-13(3)

exception for documents that would frustrate a legitimate

government function if disclosed, we now provide guidance as to

the provision’s proper application.           The 1988 Senate Standing

Committee Report, which included examples of records that may

fall under the HRS § 92F-13(3) exception “[t]o assist the

       24
            The City and BFS alternatively argue that the deliberative
process privilege may be based on the HRS § 92F-13(4) exemption for
“[g]overnment records which, pursuant to state or federal law including an
order of any state or federal court, are protected from disclosure,”
contending that the provision incorporates the federal common law
deliberative process privilege. This novel theory has not been adopted by
OIP, which has made some statements indicating that it takes a contrary
position. See, e.g., OIP Op. Ltr. No. 05-06 at 3 (Mar. 22, 2005) (stating
that HRS § 92F-13(4) applies “only where that record is made confidential by
another statute” (emphasis omitted and added)). Whether reviewed under a
palpably erroneous or de novo standard, the government’s argument fails to
regenerate the privilege from federal common law.

            Further, as stated, a deliberative process privilege is contrary
to the plain language of HRS § 92F-2 and the legislative history of the UIPA
as a whole. We accordingly hold that the legislature did not intend HRS §
92F-13(4) to incorporate the federal common law deliberative process
privilege, which applies exclusively in federal courts when jurisdiction is
based on a question of federal law. See Young v. City & Cty. of Honolulu,
No. CIV 07-00068 JMS-LEK, 2008 WL 2676365, at *4 (D. Haw. July 8, 2008);
supra note 20 (describing the Hawai‘i legislature’s rejection of the common
law privilege when enacting the HRE).




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Judiciary in understanding the legislative intent,” is highly

instructive.   S. Stand. Comm. Rep. No. 2580, in 1988 Senate

Journal, at 1095; see also Kaapu v. Aloha Tower Dev. Corp., 74

Haw. 365, 387-89, 846 P.2d 882, 891-92 (1993) (holding that

competing development proposals would frustrate a legitimate

government function within the meaning of HRS § 92F-13(3) if

disclosed prior to the agency’s final selection of a developer

because, inter alia, the records fell “within one or more of the

classes of information described in the” Senate Standing

Committee Report).    Although it is not necessary that a record

fall within or be analogous to one of the enumerated categories

for it to be shielded from disclosure under HRS § 92F-13(3), the

list and the text of the Senate Standing Committee report

provides guidance as to the provision’s operation.

          Notably, each of the legislature’s provided examples

implicates a specific legitimate government function, including

the enforcement of laws, the procurement of property, the fair

administration of exams, and the maintenance of secure record-

keeping systems.     By contrast, the City and BFS argued that the

legitimate government function that may be frustrated by the

disclosure of deliberative records was simply agency decision-

making.   But “decision-making” is such a broad and ill-defined

category that it threatens to encompass nearly all government

actions, which almost inevitably involve decisions of some sort.


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Indeed, even illegitimate actions beyond the government’s legal

authority could likely be described as decisions.            Thus, to

claim the protections of HRS § 92F-13(3), an agency must define

the government function that would be frustrated by a record’s

disclosure with a degree of specificity sufficient for a

reviewing court to evaluate the legitimacy of the contemplated

function.25   To hold otherwise would result in the provision

having no meaningful limitations.

            Further, the Senate Standing Committee Report

indicates that not even the expressly enumerated categories of

records are automatically exempt from disclosure; the report

describes the enumerated documents as “examples of records which

need not be disclosed, if disclosure would frustrate a

legitimate government function.”           S. Stand. Comm. Rep. No. 2580,

in 1988 Senate Journal, at 1095 (emphasis added).            Thus, HRS §

92F-13(3) calls for an individualized determination that

disclosure of the particular record or portion thereof would

frustrate a legitimate government function.26           That a record is

of a certain type--whether that type is deliberative, pre-

      25
            Under HRS § 92F-15(c), “[t] he agency has the burden of proof to
establish justification for nondisclosure.”
      26
            As BFS correctly determined in this case, redaction and
disclosure of the remainder of the record is appropriate when the portion of
a document that qualifies for withholding under one of HRS § 92F-13’s
exceptions is reasonably separable from the record as a whole. See Peer
News, 138 Hawai‘i at 73, 376 P.3d at 21.




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decisional, or even a type included in or analogous to the

examples set forth in the Senate Standing Committee Report--is

not alone sufficient to shield the record from disclosure under

the provision.    While such a designation may be instructive, an

agency must nonetheless demonstrate a connection between

disclosure of the specific record and the likely frustration of

a legitimate government function, including by clearly

describing the particular frustration and providing concrete

information indicating that the identified outcome is the likely

result of disclosure.     See OIP Op. Ltr. No. 03-16 at 8 (Aug. 14,

2003) (stating that withholding disclosure of a coaching

contract under HRS § 92F-13(3) was not justified because the

university “has provided us with no specific examples of or any

concrete information as to how disclosure of the contract will

frustrate the Athletic Department’s ability to function”).

            In sum, to justify withholding a record under HRS §

92F-13(3), an agency must articulate a real connection between

disclosure of the particular record it is seeking to withhold

and the likely frustration of a specific legitimate government

function.   The explanation must provide sufficient detail such

that OIP or a reviewing court is capable of evaluating the

legitimacy of the government function and the likelihood that

the function will be frustrated in an identifiable way if the

record is disclosed.     See id. at 8, 16 (stating that “[w]e would


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be remiss in our statutory duties if we simply accepted UH’s

statement that disclosure [of the Head Coach’s compensation

package] will frustrate a legitimate government function without

any factual basis to support UH’s assertion” that disclosure

“could have the impact of frustrating the Athletic Director’s

ability to maintain a cohesive coaching team and a successful

athletic program”).      In the absence of such a showing,

withholding disclosure under the provision is not warranted.

                     E. The Dissent’s Proposed Rule

           The dissent characterizes our holding--that a

deliberative process privilege is clearly unsupported by the

plain text and legislative history of the UIPA--as an “extreme

position[],”27 and instead advocates for an approach similar to



     27
            It is noted that several other states have provided through
statute and judicial determination that, as we hold today, deliberative
agency records are generally not exempted from public records request. See,
e.g., Conn. Gen. Stat. § 1-210(e)(1); Vt. Stat. tit. 1, § 317(c)(4); Braddy
v. State, 219 So.3d 803, 820 (Fla. 2017)(“Inter-office memoranda and intra-
office memoranda communicating information from one public employee to
another or merely prepared for filing, even though not a part of an agency's
later, formal public product, would nonetheless constitute public records . .
. .” (quoting Shevin v. Byron, Harless, Schaffer, Reid & Assocs., Inc., 379
So. 2d 633, 640 (Fla. 1980)). And an administrative decision in at least one
other state has adopted a similar position in the absence of judicial
guidance or an explicit statutory directive. See McKitrick v. Utah Attorney
General’s Office, No. 2009-14, ¶ 7 (Utah State Records Comm. Sept. 17, 2009),
https://archives.utah.gov/src/srcappeal-2009-14.html (“The AG’s Office also
argued that access should be restricted . . . because the common law
recognizes . . . a ‘deliberative process privilege’ for documents created
within the executive branch of government. However, the cases proffered by
the AG’s office supporting such position clearly predate the enactment of
[Utah’s public record’s law].”); see also S. Utah Wilderness All. v.
Automated Geographic Reference Ctr., Div. of Info. Tech., 200 P.3d 643, 656
(Utah 2008) (holding that the requested internal agency records did not fall

                                                           (continued . . .)


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that taken by the Colorado Supreme Court in City of Colorado

Springs v. White.     Dissent at 4-5 (citing 967 P.2d 1042 (Colo.

1998) (en banc)).     From White, the dissent derives a proposed

framework for applying a circumscribed variation of the

deliberative process privilege that shields agency deliberations

only when an agency provides a detailed explanation of why the

record qualifies for the privilege and the government’s interest

in confidentiality outweighs the requester’s interest in

disclosure.    Dissent at 30-32.      But material differences in

Colorado’s public records statute and evidentiary rules make

White inapposite to Hawai‘i’s UIPA, and the dissent would thus

usurp the role of the legislature by reading a complex exception

into the statute that has no basis in its text or legislative

history.

            In White, the Colorado Supreme Court held that a

deliberative process privilege inhered not in a public records

exception for records that would frustrate government functions

if disclosed, but rather an exception that expressly protected

“privileged information” from disclosure.          967 P.2d at 1045-46

(citing Colo. Rev. Stat. § 24-72-204(3)(a)(IV) (1998)).             Unlike


(. . . continued)

within the narrow exception in Utah’s public record law for “temporary
drafts” produced by an agency).




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the Hawaii Rules of Evidence (HRE), the Colorado Rules of

Evidence (CRE) provide that claims of privilege are governed by,

inter alia, “the principles of the common law as they may be

interpreted by the courts of the State of Colorado in light of

reason and experience.”       CRE Rule 501.      The Colorado Supreme

Court was thus acting within the bounds the legislature had

established when in White it recognized a qualified deliberative

process privilege “as part of the common law of Colorado” and

held that the privilege and the balancing test it encompassed

had been incorporated into the statutory public records

exception for “privileged information.”           967 P.2d at 1050, 54-

55.

            In contrast, the dissent does not attempt to ground

its deliberative process privilege in a UIPA exemption for

documents that would be undiscoverable in litigation due to an

evidentiary privilege.       This is unsurprising because, as

discussed supra, note 20, the HRE do not allow for common law

privileges, and the legislature specifically declined to adopt a

deliberative process privilege when codifying those evidentiary

privileges that are available.         See HRE Rule 501 (2006).       Thus,

unlike in the Colorado public records law that was interpreted

in White, there is no basis to incorporate a common law

qualified deliberative process privilege or the balancing test

it encompasses into the UIPA.


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          Indeed, not only is the dissent’s interpretation

lacking in affirmative support, but there are strong textual

signals in the UIPA actively weighing against such a reading.

HRS § 92F-14 (2012) provides a statutory framework for

evaluating when a record qualifies for withholding under HRS §

92F-13(1), which shields “[g]overnment records which, if

disclosed, would constitute a clearly unwarranted invasion of

personal privacy.”    HRS § 92F-14(a) explicitly calls for a

balancing test similar to the test the dissent would apply here,

stating that a record will not qualify for withholding when “the

public interest in disclosure outweighs the privacy interest of

the individual.”    No analogous provision exists for the HRS §

92F-13(3) frustration of a legitimate government function

exception.   The implication of this absence is that “the

legislature clearly knew how to” prescribe a balancing test, and

its failure to do so with respect to HRS 92F-13(3) represents a

conscious decision that one should not be applied.           Lales v.

Wholesale Motors Co., 133 Hawai‘i 332, 345, 328 P.3d 341, 354

(2014) (quoting White v. Pac. Media Grp., Inc., 322 F.Supp.2d

1101, 1114 (D. Haw. 2004)).

          The dissent’s approach may well represent sound

policy, and we express no opinion as to its advisability as

matter of public administration.         But




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          [w]e are not at liberty to interpret a statutory provision
          to further a policy that is not articulated in either the
          language of the statute or the relevant legislative
          history, even if we believe that such an interpretation
          would produce a more beneficent result, for the Court's
          function in the application and interpretation of such laws
          must be carefully limited to avoid encroaching on the power
          of the legislature to determine policies and make laws to
          carry them out.

Lopez v. State, 133 Hawai‘i 311, 323, 328 P.3d 320, 332 (2014)

(original alterations and quotations omitted) (quoting Ross v.

Stouffer Hotel Co. Ltd., Inc., 76 Hawai‘i 454, 467, 879 P.2d

1037, 1050 (1994) (Klein, J., concurring and dissenting)).              The

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.        So long as no such

exception exists in the UIPA, this court may not supply its own.

                            IV.   CONCLUSION

          The circuit court in this case erred in determining

that the City and BFS were entitled to withhold the budget

requests pursuant to a deliberative process privilege, which

finds no basis in the plain text or legislative history of the

UIPA.   Accordingly, we vacate the circuit court’s January 13,

2016 Order Granting Defendants City and County of Honolulu and

Department of Budget and Fiscal Services’ Motion for Partial

Summary Judgment on Count I of the Complaint filed October 19,

2015; January 13, 2016 Order Granting Defendants City and County

of Honolulu and Department of Budget and Fiscal Services’ Motion

for Partial Summary Judgment on Count II of the Complaint filed


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October 19, 2015; and February 5, 2016 Judgment.           We remand this

case for further proceedings consistent with the principles set

forth in this opinion.

Robert Brian Black                       /s/ Sabrina S. McKenna
Sarah Goggans
for appellant                            /s/ Richard W. Pollack

Duane W.H. Pang                          /s/ Michael D. Wilson
for appellees

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




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