While looking into the state’s lease of water rights to the Waiahole Irrigation Company, Environment Hawai`i was denied access to information contained in a file on whose cover had been stamped the word “CONFIDENTIAL” in bright red ink. Staff at the Department of Land and Natural Resources’ Division of Land Management, which has responsibility for maintaining the files, could not explain why the stamp had been placed there. In addition, they were at a loss to say who had stamped the file confidential, or when.
In any case, no one was willing to review the information in the file to see whether any or all of the several hundred pages of documents in it were privileged under Chapter 92F, Hawai`i Revised Statutes, better known as the Uniform Information Practices Act.
The Office of Information Practices was informed of the “confidential” file. Barely a week later, Hugh Jones, deputy attorney general with the OIP, wrote Land Board Chairman Keith Ahue, setting forth the law’s requirements.
Here are excerpts from Jones’ letter, dated August 11, 1994:
“Under the Uniform Information Practices Act, each agency must make government records available for inspection and copying upon request by any person. Whether an agency file, or portions thereof, must be made available for public inspection and copying depends upon the applicability of the exceptions in section 92F-13, not on whether the file or records have been stamped ‘Confidential.’
“Additionally, if an agency file or record contains both public information and information that is protected from required disclosure, the agency must segregate the confidential information from the record or file and make the public information available for inspection and copying. As such, each agency is entitled to a reasonable period of time to search for, review, and segregate government records responsive to an individual’s request under the UIPA.
“After you have completed reviewing the contents of this file [the Waiahole lease file], please make arrangements [for its inspection]. With respect to those portions of the file, if any, that the DLNR identifies as being protected from disclosure under section 92F-13, Hawai`i Revised Statutes, the DLNR should provide a general description of the information being withheld and describe which exception(s) authorize the DLNR to withhold the same under the UIPA.”
When Environment Hawai`i returned to the Division of Land Management to inspect the files, the receptionist stated that some material had been removed inasmuch as it was privileged. When the land agent in charge of the file was asked to provide a “general description of the information being withheld,” he insisted, contrary to the receptionist’s account, that no material whatsoever had been removed from the file.
Volume 5 Number 4 October 1994
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