Opinion
SCAP-21-0000057
04-26-2022
HONOLULU CIVIL BEAT INC., Plaintiff-Appellant, v. DEPARTMENT OF THE ATTORNEY GENERAL, Defendant-Appellee.
Robert Brian Black, for appellant Stella M.L. Kam, Honolulu (Patricia Ohara, Honolulu, on the briefs) for appellee
Robert Brian Black, for appellant
Stella M.L. Kam, Honolulu (Patricia Ohara, Honolulu, on the briefs) for appellee
WILSON AND EDDINS, JJ., AND CIRCUIT JUDGE WONG, IN PLACE OF NAKAYAMA, J., RECUSED; AND RECKTENWALD, C.J., CONCURRING IN PART AND DISSENTING IN PART, WITH WHOM McKENNA, J., JOINS
OPINION OF THE COURT BY EDDINS, J. In 2016, the Department of the Attorney General produced an explosive 555-page report documenting incompetence, deceptive practices, and workplace bullying in the Office of the Auditor (the Report).
The Report itself contains 555 substantive pages and one blank page; the Department of the Attorney General also prepared a seven page follow up report.
Honolulu Civil Beat, an investigative news organization, has been trying to get its hands on a copy of that report for over five years.
We decide whether Hawai‘i's public information law - the Uniform Information Practices Act (UIPA) - requires the State AG to release the Report to Civil Beat.
By and large, it does. Though there are significant privacy interests in the Report as a "personnel-related" record, these interests are mostly outweighed by the public's overwhelming interest in the Report's disclosure. There are summaries of formal personnel records, discussions of minor policy infractions, and remarks about medical information in the Report that are exempt from the UIPA's disclosure requirements. They may be redacted. The names of rank-and-file employees of the Office of the Auditor and other interviewees may also be redacted. But everything else is fair game for Civil Beat: a smattering of redactions within a government record cannot shield the entire thing from the UIPA's disclosure requirements.
I. BACKGROUND
In April 2015, the Hawai‘i Legislature asked the Department of the Attorney General (the AG or State AG) to investigate the Office of the Auditor. The legislature made this request after receiving complaints about three high-ranking officials in the Office of the Auditor: Acting Auditor Jan Yamane, Deputy Auditor Rachel Hibbard, and General Counsel and Human Resources Manager Kathleen Racuya-Markrich (collectively the Subjects).
The State AG investigated. And it compiled a record of its investigation (the Investigation).
On April 27, 2016, a Civil Beat reporter emailed the State AG. He referenced the UIPA and asked for "access to or copies of all final investigative reports related to the state auditor's office from Jan. 1, 2015 to present."
The UIPA provides that "[a]ll government records are open to public inspection unless access is restricted or closed by law." Hawai‘i Revised Statutes (HRS) § 92F-11(a) (2012). It also exempts several categories of records from this disclosure mandate. See HRS § 92F-13 (2012).
The State AG denied Civil Beat's request. It said the Report was exempt from the UIPA's disclosure requirement.
Civil Beat sued.
The parties cross-moved for summary judgment.
The circuit court granted the State AG's motion for summary judgment and denied Civil Beat's. The court said the Report was exempt from the UIPA because it was a confidential communication between counsel (the State AG) and client (the legislature). Civil Beat appealed. On appeal, we reversed the circuit court. See Honolulu Civil Beat Inc. v. Dep't of Attorney Gen. (Civil Beat I ), 146 Hawai‘i 285, 463 P.3d 942 (2020). The Report might have been prepared at the legislature's request. But the State AG hadn't shown it prepared the Report in the context of an attorney-client relationship. And, as a result, the Report was not exempt from the UIPA's disclosure requirements. Id. at 298, 463 P.3d at 955.
The court reasoned that since the Report was covered by the statutory attorney-client privilege, see Hawai‘i Rules of Evidence Rule 503, it would be shielded from the UIPA's disclosure requirements by HRS § 92F-13(4), which exempts from UIPA disclosure government records that "pursuant to state or federal law ... are protected from disclosure." See also HRS § 626-1 (2016) (enacting the Hawai‘i Rules of Evidence).
The State AG's motion for summary judgment had raised two additional bases for the Report's nondisclosure that were left unaddressed by the circuit court's order. They were:
(1) HRS § 92F-13(3) (the Frustration Exemption) (exempting from disclosure "[g]overnment records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function"); and
(2) HRS § 92F-13(1) (the Privacy Exemption) (exempting from disclosure "[g]overnment records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy").
We remanded the case. We instructed the circuit court to consider whether the Report was shielded from the UIPA's disclosure requirements by the Frustration or Privacy Exemptions. Id. at 299, 463 P.3d at 956.
On remand, the circuit court again granted summary judgment to the State AG. It held that the Report fell within both the Frustration and the Privacy Exemptions and was therefore exempt from the UIPA's disclosure requirements.
The court said the Report fell within the Frustration Exception because its disclosure would frustrate the State AG's "legitimate government function" of providing legal services to state agencies.
The court said the Report fell within the Privacy Exemption because its disclosure would "constitute a clearly unwarranted invasion of personal privacy." In reaching this conclusion, the circuit court found there were significant privacy interests in the Report because it was both "[i]nformation comprising a personal recommendation or evaluation," see HRS § 92F-14(b)(8) (2012 & Supp. 2015), and "[i]nformation in an agency's personnel file," see HRS § 92F-14(b)(4).
The court said that: (1) the Subjects had a significant privacy interest in the Report as a personal recommendation or evaluation under HRS § 92F-14(b)(8) ; and (2) everyone named in the Report had a significant privacy interest in it as information in a personnel file under HRS § 92F-14(b)(4).
The circuit court also concluded that the Report should be totally withheld, rather than redacted, because the Report could not be "redacted in a fair manner which would give accurate meaning" to its contents.
Now, in this second appeal, Civil Beat says the circuit court got it wrong again. Civil Beat asks us to consider whether the circuit court erred by holding that the Report may be withheld from the public under (1) the Frustration Exemption; and (2) the Privacy Exemption. Civil Beat also asks us to consider (3) "[w]hether the circuit court erred by holding that the AG investigation report could not be disclosed in redacted form."
II. DISCUSSION
Under the UIPA, "[a]ll government records are open to public inspection unless access is restricted or closed by law." HRS § 92F-11(a). But there are several statutory exemptions. See HRS § 92F-13. And if a record falls within one of these exemptions, the government doesn't have to disclose it. Id.
Two exemptions are at issue in this case: the Frustration Exemption ( HRS § 92F-13(3) ) and the Privacy Exemption ( HRS § 92F-13(1) ).
The UIPA "contains a strong presumption in favor of public disclosure of government records." Civil Beat I, 146 Hawai‘i at 293, 463 P.3d at 950 (citing HRS §§ 92F-2 (2012), 92F-11(a)). And its exemptions are "narrowly construed with all doubts resolved in favor of disclosure." OIP Op. Ltr. No. 95-12 at 8 (May 8, 1995).
An agency relying on a UIPA exemption has the burden of showing that nondisclosure is justified. HRS § 92F-15(c) (2012) ("The agency has the burden of proof to establish justification for nondisclosure.").
Here, the State AG has not met its burden of showing that the Report's nondisclosure is justified under either the Frustration Exemption or the Privacy Exemption. A. The Frustration Exemption
The analysis under the Frustration Exemption – which exempts records "that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function" - is straightforward. Both the trial court's post-remand order and the State AG's opening brief assert that the AG's ability to provide legal services will be frustrated by the Report's disclosure. This assertion is incompatible with our holding in Civil Beat I. See 146 Hawai‘i at 295, 463 P.3d at 952 (holding, on the same record before us now, that the AG "failed to prove that it was acting in a lawyer-client relationship with the legislature with regard to [the Report]"). The record contains no explanation of how the Report's disclosure could possibly frustrate the State AG's ability to provide legal services given that, per Civil Beat I, the Attorney General wasn't providing the State "legal services" when it investigated the Office of the Auditor or prepared the Report.
Our ruling will have no impact on the protections afforded to records the State AG can show are confidential lawyer-client communications. The Attorney General contends that its ability to provide state agencies legal services would be handicapped by the Report's disclosure. But this contention is nonsensical. Anytime the State AG conducts an investigation while providing legal services to a state agency, it may accurately tell its interlocutors that their responses would be confidential. Government agencies, likewise, may continue to request legal services from the State AG with full confidence that confidential attorney-client communications will be shielded from UIPA disclosure. See Civil Beat I, 146 Hawai‘i at 293-95, 463 P.3d at 950-52.
The State AG has not advanced any other arguments about why the Report's release would frustrate a legitimate government function. The AG's burden of showing how the Report's release would frustrate a legitimate government function, see HRS § 92F-15(c), has not been met. The Frustration Exemption, then, cannot justify the Report's nondisclosure.
See Peer News LLC v. City & County of Honolulu (Peer News II ), 143 Hawai‘i 472, 487, 431 P.3d 1245, 1260 (2018) (stating that an agency seeking to withhold a record under the Frustration Exemption must "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").
B. The Privacy Exemption
The Privacy Exemption analysis is more complicated.
The Privacy Exemption applies to "[g]overnment records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy." HRS § 92F-13(1). Under HRS § 92F-14(a), "[d]isclosure of a government record shall not constitute a clearly unwarranted invasion of personal privacy if the public interest in disclosure outweighs the privacy interest of the individual."
A two-part test governs our determination of whether a given record's disclosure would "constitute a clearly unwarranted invasion of personal privacy."
First, the court decides whether there is a "significant privacy interest rooted in statute or the constitution." See Org. of Police Officers v. City & Cty. of Honolulu, 149 Hawai‘i 492, 504, 494 P.3d 1225, 1237 (2021).
If the court finds a constitutionally or statutorily "significant" privacy interest, it balances that interest against the public's interest in disclosure. If the significant privacy interest is stronger than the public's interest in disclosure, the record's disclosure constitutes "a clearly unwarranted invasion of personal privacy" and the record falls within the Privacy Exemption. If, however, the public's interest in disclosure is stronger than the privacy interests at issue, the record is not exempt and must be disclosed. See id. at 516, 494 P.3d at 1249.
The analysis is easier if there's no "significant privacy interest rooted in statute or the constitution;" in that case, even "a scintilla of public interest in disclosure will preclude a finding of a clearly unwarranted invasion of personal privacy." Id. at 504, 494 P.3d at 1237 (cleaned up).
1. The Report, as a whole, does not fall within the Privacy Exemption
The circuit court held that everyone named in the Report has a significant privacy interest in it under HRS § 92F-14(b)(4), which recognizes a significant privacy interest in "[i]nformation in an agency's personnel file." It also held that those privacy interests outweigh the public's interest in the Report's disclosure and that, therefore, the Report is covered by the Privacy Exemption.
The circuit court also found that Yamane and her managerial staff had significant privacy interests in the Report under HRS § 92F-14(b)(8), which recognizes a significant privacy interest in "[i]nformation comprising a personal recommendation or evaluation." We disagree. The State AG prepared the Report to document its investigation into the veracity of a particular set of personnel-related allegations . This provenance is way different than that of most workplace "personal evaluations" or performance reviews. And the Report explores themes and subject matter that would be out of place in an individual "personal evaluation." Because the Report is not a "personal recommendation or evaluation," there are no significant privacy interests in it under HRS § 92F-14(b)(8).
We agree with the circuit court that there are significant privacy interests in the Report under HRS § 92F-14(b)(4) : the Report, as a whole, is a "personnel-related" record in which its Subjects have significant privacy interests under HRS § 92F-14(b)(4). But, we hold that because the Subjects’ significant privacy interests in the Report as personnel-related information are outweighed by the public's interest in disclosure, the Report, as a whole, is not covered by the Privacy Exemption.
a. Defining the Scope of the Significant Privacy Interest Recognized by HRS § 92F-14(b)(4)
HRS § 92F-14(b)(4) creates a "significant privacy interest" in "[i]nformation in an agency's personnel file."
The significant privacy interest in personnel-related information found in HRS § 92F-14(b)(4) is one of ten examples of significant privacy interests enumerated in HRS § 92F-14(b). But this list of examples is not exhaustive.
The UIPA implements article I, section 6 of the Hawai‘i Constitution. See Org. of Police Officers, 149 Hawaii at 510, 494 P.3d at 1243 (describing UIPA as a law implementing article I, section 6). Under article I, section 6, "[t]he right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest." We have held that "the privacy right protected by the ‘informational privacy’ prong of article I, section 6 is the right to keep confidential information which is ‘highly personal and intimate.’ " State of Hawai‘i Org. of Police Officers (SHOPO) v. Soc'y of Prof'l Journalists-Univ. of Hawai‘i Chapter, 83 Hawai‘i 378, 398, 927 P.2d 386, 406 (1996) ). As the court in SHOPO recognized, "highly personal and intimate information" is analogous to that implicated by the invasion of privacy tort, which encompasses information about "[s]exual relations," "family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a [person's] life in [their] home, and some of [their] past history that [they] would rather forget." Id. (citing Restatement (Second) of Torts § 652D cmt. B (Am. Law Inst. 1977)).
Because of the constitutionally significant privacy interest in "highly intimate and personal" information, HRS § 92F-14(b) ’s list of "examples" of significant privacy interests is not exhaustive. HRS § 92F-14(b) does not recognize information about, for example, family quarrels, as a category in which individuals have a significant privacy interest. But individuals nonetheless have a significant privacy interest in information about their family quarrels because of article I, section 6's protections. The fact that HRS § 92F-14(b) contains "examples" of information in which a person has a "significant" privacy interest thus does not imply that a court may create statutorily significant privacy interests beyond those recognized by HRS § 92F-14(b). It merely reflects the legislature's recognition that it is this court's job to determine the scope of the constitutional right to informational privacy.
This privacy interest extends to information that, though not physically located in any agency's personnel files, is, in essence, a personnel record. See OIP Op. Ltr. No. 98-05 at 20 (Nov. 24, 1998) (concluding that an administrative investigation report kept outside an employee's personnel file is "akin to the information maintained in a personnel file" in part because "[a]n administrative investigation report often is the only investigation with regard to personnel action and discipline, and it provides the basis for any personnel action taken"); OIP Op. Ltr. No. 95-7 (March 28, 1995). Thus, in the UIPA context, the term "personnel-related information" refers to information that, regardless of its physical location, is akin to that maintained by an agency in its personnel files.
In considering the proper scope of the significant privacy interest created by HRS § 92F-14(b)(4), it is helpful to keep in mind that the noun "personnel" has two meanings. It means "[t]he department of human resources in an organization;" and it may also refer to "[t]he people employed by or active in an organization, business, or service." See Personnel, The American Heritage Dictionary (5th ed. 2015).
When HRS § 92F-14(b)(4) refers to "information in an agency's personnel file," it is talking about information in files maintained by the agency's human resources department, and not about all information in any way related to "[t]he people employed by or active in an organization, business, or service." By extension, when we recognize a significant privacy interest in "personnel-related information," we are describing a significant privacy interest in information related, or similar, to that you would find in the files of a human resources department.
The dissent, in contrast, advocates a definition of "information in an agency's personnel file" that operationalizes personnel's other meaning. In the dissent's account, if information has any connection to the "everyday work activities" of State employees, then those employees have a significant privacy interest in it. See dissent at 151 Hawai'i at 92, 508 P.3d at 1178 ("UIPA's text recognizes that State employees retain a significant privacy interest in their everyday work activities ....")
There are major problems with this approach.
First, and most fundamentally, it is at odds with the plain text of HRS § 92F-14(b)(4), which uses "personnel" to refer to an agency's human resources department and not as a synonym for "employees." HRS § 92F-14(b)(4) recognizes a significant privacy interest in "[i]nformation in an agency's personnel file, or applications, nominations, recommendations, or proposals for public employment or appointment to a governmental position." Personnel files, job applications, nominations, and proposals for public employment are all things you would find in an agency's HR files. Nothing in the plain text of this provision suggests the legislature is using "information in an agency's personnel file" to refer to all information about the day-to-day work of an agency's personnel.
Second, it makes no sense given the common understanding of the term "personnel file," which refers to a file that both: (1) is specific to a particular person; and (2) contains a relatively narrow range of documents that are used to identify, and make employment decisions about, the particular employee they describe. See Dep't of Air Force v. Rose, 425 U.S. 352, 377, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (describing personnel files as containing personal data about, for example where someone was born, the names of their parents, their address history, and their educational records); see also Elkin Tribune, Inc. v. Yadkin Cty. Bd. of Cty. Comm'rs, 331 N.C. 735, 417 S.E.2d 465, 466 (N.C. 1992) (observing that statutory definition of personnel file as "consist[ing] of any information in any form gathered by the [employer] with respect to that employee and, by way of illustration but not limitation, relating to his [or her] application, selection or nonselection, performance, promotions, demotions, transfers, suspension and other disciplinary actions, evaluation forms, leave, salary, and termination of employment" comports with common understanding of term "personnel file" (emphases added)); Oregonian Publ'g Co. v. Portland Sch. Dist. No. 1J, 329 Or. 393, 987 P.2d 480, 484 (1999) (en banc) (observing that " ‘personnel files’ would usually include information about [an employee's] education and qualifications for employment, job performance, evaluations, disciplinary matters or other information useful in making employment decisions regarding an employee").
Third, it is difficult to square with other examples in HRS § 92F-14(b), which recognize significant privacy interests in discrete and relatively narrow categories of information like "[i]nformation comprising a personal recommendation or evaluation" and "[i]nformation relating to eligibility for social services or welfare benefits or to the determination of benefit levels." These are not sweeping genres akin to information about government employees’ "everyday work activities." See dissent at 151 Hawai'i at 91, 508 P.3d at 1178. There is no reason to think that the legislature - in recognizing a significant privacy interest in "[i]information in an agency's personnel file" - intended to bestow information about state workers’ lunchtime habits and collegial dynamics with the same level of protection afforded to social security numbers and medical records.
b. The Report is "personnel-related information" in which the Subjects alone have a significant privacy interest under HRS § 92F-14(b)(4)
The circuit court held that everyone named in the Report has a significant privacy in it under HRS § 92F-14(b)(4). We disagree. Only the Subjects have a significant privacy interest in the Report as a whole.
The analysis as to whether any particular individual has a "significant" privacy interest in a record requires more than a finding that the person is referenced in the record and that the record, as a whole, contains information covered by article I, section 6 or one of HRS § 92F-14(b) ’s examples. A record implicates a person's significant privacy interests when it contains particular types of information about them. A person's privacy interest does not turn on the nature of the record as a whole. Cf. Rose, 425 U.S. at 374, 96 S.Ct. 1592 (recognizing that courts deciding FOIA challenges must "look beneath the label on a file or record when the withholding of information is challenged" (cleaned up)). It turns, rather, on whether a record's information about them implicates their personal significant privacy interests.
This analysis makes intuitive sense in the context of personnel files, which, by their nature, concern a particular person. See Milner v. Dep't of Navy, 562 U.S. 562, 570, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (explaining that "the common and congressional meaning of ‘personnel file’ is the file showing, for example, where an employee was born, the names of his parents, where he has lived from time to time, his school records, results of examinations, and evaluations of his work performance" (cleaned up) (citing Rose, 425 U.S. at 377, 96 S.Ct. 1592 )); see also Rose, 425 U.S. at 376, 96 S.Ct. 1592 (citing a House Report that describes FOIA's exemption for personnel files as "intended to cover detailed Government records on an individual which can be identified as applying to that individual" (emphases added) (cleaned up)).
Here, the Report is a personnel-related record in which not just one person, but three people (the Subjects), have a significant privacy interest under HRS § 92F-14(b)(4).
As a preliminary matter, there are two reasons why the Report is "personnel-related information," by which we mean the type of information you would expect to find in files maintained by an agency's personnel department.
First, the Report documents an investigation launched in response to complaints from Office of the Auditor employees concerning, among other things, harassment and a hostile work environment at the Office of the Auditor. These are classic human resources concerns. And the Investigation – with its employee interviews, three Subjects, and review of personnel policies and procedures, training records, and staff assignments – is a classic HR investigation.
Second, the State AG initiated the Investigation at the request of the legislature, which can hire and fire the auditor. And following the Investigation, the AG gave the Report to the legislature so that it could determine "what action needed to be taken if any" in response to the Report's findings. The relationship between the legislature and the auditor isn't that of a typical "employer" and "employee." See Civil Beat I, 146 Hawai‘i at 297, 463 P.3d at 954 (describing the auditor's constitutional role in relationship to the legislature). But the fact that a unit of government with power over the auditor requested and directed the Investigation weighs in favor of treating the Report as "personnel-related information" in which there may be significant privacy interests under HRS § 92F-14(b)(4).
So the Report is a personnel-related record. But whose?
The Investigation was launched in response to complaints about the Subjects, in particular. And the Report's scope and contents foreground the Subjects, in particular. Though there's no evidence the Office of the Auditor maintained the Report in Yamane, Hibbard, or Racuya-Markrich's personnel files, the Report would not be out of place there. It is, as a whole, a document of the sort an employer might use in making employment decisions about the Subjects. Cf. Wakefield Teachers Ass'n v. Sch. Comm. of Wakefield, 431 Mass. 792, 731 N.E.2d 63, 67 (2000) (describing the "core categories of personnel information" as "useful in making employment decisions" about a particular employee (cleaned up)). Thus, with respect to each of the three Subjects, the Report, as a whole, is personnel-related information. So all three of the Subjects (who, as their moniker implies, are the Report's subjects ) have a significant privacy interest in the Report under HRS § 92F-14(b)(4).
The Report does mention Office of the Auditor workers other than the Subjects. But these folks are not its focus. The Report was not drafted because of them; it does not focus on them; and, with limited exceptions, see infra sections II(B)(2)(a) & (b), it does not contain information of the sort the Office of the Auditor would use in employment-related decisions about them . The Report, with its hundreds of pages about the Subjects, would be out of place in any one of the non-Subjects’ personnel files. So the Report is not these employees’ personnel-related information. And, by extension, they do not have a significant privacy interest in the Report under HRS § 92F-14(b)(4). , , c. The public has a strong interest in the Report's full disclosure
Some of the Office of the Auditor employees mentioned in the Report received assurance of confidentiality from the State AG. But this fact does not impact our analysis of whether these interviewees have significant privacy interests in the Report. The State AG cannot override the UIPA's disclosure requirements by promising interviewees confidentiality. As we explained in SHOPO, "the virtually unanimous weight of authority holds that an agreement of confidentiality cannot take precedence over a statute mandating disclosure." SHOPO, 83 Hawai‘i at 405–06, 927 P.2d at 413–14. See also Washington Post Co. v. U.S. Dept. of Health and Human Servs., 690 F.2d 252, 263 (D.C. Cir. 1982) ("[T]o allow the government to make documents exempt by the simple means of promising confidentiality would subvert FOIA's disclosure mandate."); OIP Op. Ltr. No. 01-04 at 7 (Oct. 29, 2001) ("[A]gencies should not make blanket assurances of confidentiality. Investigators should always ensure that any such promises they make are appropriate, because if they are made in violation of the UIPA, witness identities and their statements would be subject to disclosure.").
Nothing in HRS § 92F-14(b)(4)(B) suggests that all information concerning workplace investigations is necessarily the "personnel-related information" of every single participant in those investigations. The dissent's contention to the contrary rests on a misreading of HRS § 92F-14(b)(4)(B).
HRS § 92F-14(b)(4) recognizes a significant privacy interest in "[i]nformation in an agency's personnel file." Subsection (B) contains an exception to that general rule. It outlines limited circumstances in which there is no significant privacy interest in five types of information concerning "employment misconduct that results in an employee's suspension or discharge."
The dissent takes this very narrow exception and argues that it stands for the general propositions that: (1) the UIPA "specifically provides for individual privacy interests" in employment-misconduct investigations; and (2) every employee named in a document describing a workplace misconduct investigation has a significant privacy interest in that document. See dissent at 151 Hawai'i at 93, 508 P.3d at 1179 (discussing HRS § 92F-14(b)(4)(B) and claiming that "in addition to protecting personnel-related information in general, UIPA specifically provides for individual privacy interests in employment-misconduct investigations" and that through HRS § 92F-14(b)(4)(B) the legislature "recognized within UIPA's text that employment investigations touch on sensitive areas implicating significant privacy interests for both subjects and witnesses").
Neither of these contentions has any merit. And neither draws any support from HRS § 92F-14(b)(4)(B). HRS § 92F-14(b)(4)(B) indicates that, unsurprisingly, the legislature anticipated that government agencies’ personnel files would sometimes contain information about employee misconduct. But that doesn't mean all information in any way connected to a workplace misconduct investigation is automatically "personnel-related information." And it definitely doesn't support the conclusion that everyone named in a report describing workplace misconduct has a significant privacy interest in it.
The dissent justifies its conclusion that the Report is the non-Subjects’ personnel-related information by arguing that these interviewees ought to have a significant privacy interest in the Report. The dissent says it's not fair the UIPA gives the Subjects — who were accused of misconduct — a "significant" privacy interest in the Report while denying the same to the non-Subjects, who did nothing wrong. See dissent at 151 Hawai'i at 93, 508 P.3d at 1179. This argument is intuitively appealing, but the dissent's engagement with this normative question is not appropriate: it is the legislature's job, not ours, to weigh policy considerations and determine the scope of the Privacy Exemption. See Peer News II, 143 Hawai‘i at 489, 431 P.3d at 1262 ; State v. Smith, 103 Hawai‘i 228, 233, 81 P.3d 408, 413 (2003).
The dissent says that OIP Opinion Letter Number 98-05 supports its contention that everyone named in the Report has a significant privacy interest in it as a personnel-related record. It does not. That opinion letter – which dealt with an administrative investigation, not a criminal one — did not consider at all the issue before us now: whether the witnesses in an administrative investigation have a significant privacy interest in that investigation as personnel-related information. In fact, Opinion Letter Number 98-05 directly undermines the dissent's claim that witnesses in an administrative investigation have a significant privacy interest in it under HRS § 92F-14(b)(4). In Opinion Letter Number 98-05, the OIP presumed that only the subject of an administrative investigation could have a significant privacy interest in it as personnel-related information. See OIP Op. Ltr. No. 98-05 at 20-21 (separately analyzing whether the subject employee of an investigative report has a significant privacy interest in it as personnel-related information and concluding that "[w]hen there is no discharge resulting from employee misconduct, the subject employee has a significant privacy interest in the information contained in [an investigative affairs report about the misconduct]" (emphasis added)). OIP Opinion Letter Number 98-05 addressed the question of whether the subject of an administrative investigation report could have a significant privacy interest in it as personnel-related information. But it didn't bother with the question of whether complainants and witnesses could have a "personnel-information" significant privacy interest in the same report. Because it was obvious they could not.
Opinion Letter Number 98-05 did find that witnesses in administrative investigations have a significant privacy interest in information about their identity within internal affairs reports. See id. at 19. But nothing about that limited conclusion supports the dissent's contention that the non-Subjects have significant privacy interest in everything within the Report.
Our holding that the non-Subjects named in the Report do not have a significant privacy interest in it under HRS § 92F-14(b)(4) is limited and technical. We are not holding that the non-Subjects’ privacy interests in the Report are unimportant, insignificant, or trivial. We are simply holding that those privacy interests are not the sort of privacy interests recognized by HRS § 92F-14(b)(4) as "significant."
The Report's full disclosure would advance three distinct public interests.
First, the public's interest in assessing how the Office of the Auditor carries out its official duties. See OIP Op. Ltr. No. 90–17, at 7 (April 24, 1990) (Recognizing that the UIPA reflects citizens’ right to know "what their government is up to" (quoting U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) )). The Report's release would advance this public interest by "shed[ding] light upon the workings of government." See OIP Op. Ltr. No. 04-07 at 7 (Mar. 25, 2004).
Second, the public's interest – distinct from its general interest in oversight of government operations - in "monitoring the conduct of individual government employees or officials." Peer News LLC v. City & County of Honolulu (Peer News I ), 138 Hawai‘i 53, 79, 376 P.3d 1, 27 (2016) (Pollack, J., concurring). The Report's release would advance this interest by allowing the public to assess whether the Subjects conscientiously and ethically carried out their respective duties while working in the Office of the Auditor.
Third, the public's interest in assessing the manner in which the government investigates complaints and allegations of wrongdoing. As we explained in Organization of Police Officers:
The public's interest extends to those investigating misconduct and those accused of misconduct: the public should be assured that both the activity of public employees suspected of wrongdoing and the conduct of those public employees who investigate the suspects is open to public scrutiny.
149 Hawai‘i at 516, 494 P.3d at 1249 (cleaned up). The Report's release would advance this interest by allowing the public to understand how the State AG conceptualized and executed the Investigation.
d. The public's interest in the Report's disclosure outweighs the Subjects’ and non-Subjects’ privacy interests in the Report as a whole
Because the Subjects have significant privacy interests in the Report as a whole under HRS Section 92F-14(b)(4), our determination as to whether the State AG may withhold the whole Report under the Privacy Exemption hinges on whether the public's interest in the Report's disclosure outweighs those interests. See HRS § 92F-14(a). (Since the non-Subjects’ privacy interests in the Report as a whole are not statutorily or constitutionally significant, they are not subject to HRS Section 92F-14(a) balancing.)
The HRS Section 92F-14(a) balancing test is context-specific; no multi-factor test could anticipate every potentially-relevant consideration. That said, certain dynamics are routinely at issue when a government employee's significant privacy interests in a record are balanced against the public's interest in the same record's disclosure. The OIP has identified five factors relevant to HRS Section 92F-14(a) balancing. They are:
(1) the government employee's rank;
(2) the "[d]egree of wrongdoing and strength of evidence against the employee";
(3) whether there are other ways to obtain the information;
(4) "[w]hether the information sought sheds light on a government activity"; and
(5) "[w]hether the information is related to job function, or is of a personal nature."
See OIP Op. Ltr. No. 10-03 at 6-7 (Oct. 5, 2010).
These non-exclusive factors are a nice starting point for HRS Section 92F-14(a) balancing. And here, each factor supports the Report's disclosure.
As we explained in Organization of Police Officers, these factors "might be useful or relevant depending on the circumstances of the individual case" but "they are neither necessary nor dispositive." 149 Hawai‘i at 517, 494 P.3d at 1250.
The Subjects - Acting Auditor Jan Yamane, Deputy Auditor Rachel Hibbard, and General Counsel and HR Manager Kathleen Racuya-Markrich - were the Office of the Auditor's top brass, not line auditors or administrative staff.
And the Report is damning: it provides strong evidence of unethical and unprofessional conduct in the Office of the Auditor. The Report contains information about: (1) the Office of the Auditor's exaggeration and sensationalizing of its findings; (2) the Office of the Auditor's fabrication of findings about auditee agencies; (3) the inexperience and incompetence of the Office of the Auditor's leadership; (4) the Office of the Auditor's alleged failure to complete an audit it was required, by law, to complete; (5) the Office of the Auditor's efforts to artificially inflate the number of audit reports it produced; and (6) the toxic workplace at the Office of the Auditor.
The third factor examines "whether the government is the only means for obtaining the desired information." OIP Op. Ltr. No. 10-03 at 7. The government is Civil Beat's only option for getting the Report. This factor supports disclosure.
The fourth factor also favors the Report's disclosure. The Report spotlights the workings of the Office of the Auditor. In Peer News I, we recognized that " ‘the appropriate concern of the public as to the proper performance of public duty is to be given great weight’ when balanced against competing privacy interests." 138 Hawai‘i at 73, 376 P.3d at 21 (quoting SHOPO, 83 Hawai‘i at 399, 927 P.2d at 407 ).
Fifth, none of the information in the Report concerns the Subjects’ personal affairs. All of it in some way connects to their official work in the Office of the Auditor. The Report contains some colorful descriptions of the work environment at the Office of the Auditor. But this is largely a function of the manner in which the State AG conducted the Investigation. The AG's investigator would ask interviewees if they had heard about various incidents of harassment within the Office of the Auditor. It is unsurprising that some of the responses he got contained commentary on colleagues’ interpersonal dynamics. Nothing in the Report is purely personal, though: there's no "gossip" about the Subjects’ (or anyone else's) personal lives, just candid descriptions of a toxic workplace environment. Because the information in the Report relates to the Subjects’ job functions, not their personal affairs, this factor favors the public's interest in disclosure.
The datedness of the record is also relevant to HRS § 92F-14(a) balancing. Here, the Report dates to spring 2016 and it describes an investigation that happened about six years ago, in 2015 and early 2016. The record's age cuts both ways. The Subjects’ "significant privacy interests" in the Report have waned over time. See McDonnell v. United States, 4 F.3d 1227, 1256 (3d Cir. 1993) (recognizing that individuals’ privacy interests may become "diluted by the passage of time"). At the same time, the public's interest in the Report's disclosure – though still substantial - is lower than it would be if Yamane were still Acting Auditor. Cf. Peer News I, 138 Hawai‘i at 82, 376 P.3d at 30 (Pollack, J., concurring) (recognizing that public interest in holding a police officer accountable for his conduct "may be significantly diminished if the officer is retired, was subsequently acquitted of the conduct, or is no longer serving as an armed officer"). On balance, the Report's age supports disclosure.
A final factor that informs our analysis is the Office of the Auditor's importance: this highly-visible and constitutionally-established office is a first line of defense against government inefficiency - or worse. See Hawaii Constitutional Convention Studies, Article VI: Taxation and Finance, Legislative Reference Bureau, at 70-78 (June 1978). The critical role the Office of the Auditor plays in promoting trust and confidence in government enhances the public's interest in the Report.
We conclude that the State AG has not met its burden of showing that the Privacy Exemption wholesale shields the Report from disclosure: the public's interests in the Report's disclosure outweigh the Subjects’ significant privacy interests in the Report as a personnel-related record. And because there is more than a "scintilla" of public interest in the Report's disclosure, the non-Subjects’ non-significant privacy interests in information within the Report are also eclipsed.
2. Four categories of information within the Report come within the Privacy Exemption
The fact that the Report is not wholesale shielded from disclosure by the Privacy Exemption, does not mean that none of the information within it is covered by the Privacy Exemption. We must consider each subset of information within the Report to determine whether its release would result in a clearly unwarranted invasion of personal privacy. Cf. Mead Data Cent., Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 261 n.55 (D.C. Cir. 1977) (observing that "the focus of the FOIA is information, not documents as a whole").
There are four categories of information in the Report that, if disclosed, would "constitute a clearly unwarranted invasion of personal privacy." They are: (1) summaries of the Office of the Auditor's personnel records; (2) findings and discussions concerning minor policy infractions committed by non-Subjects; (3) the names of interviewees and Office of the Auditor employees mentioned in the Report; and (4) information about individuals’ medical conditions. These four categories of information fall within the Privacy Exemption and may be redacted from the Report.
a. Summaries of the Office of the Auditor's personnel files fall within the Privacy Exemption
As part of the Investigation, the State AG reviewed records maintained in the Office of the Auditor's personnel files. The Report summarizes some of these records. For example, it describes in depth a demotion letter and several formal performance appraisals.
HRS § 92F-14(b)(4) does not confer a significant privacy interest in every offhanded reference to a personnel record or matter. Yet those whose personnel records are reviewed in detail by the Report do have a significant privacy interest in those summaries, just as they would in the records themselves.
The public's interest in these summaries is, in contrast, low. They may shed light on certain government workers’ performance, but they add little to the Report's description of the Office of the Auditor, at large.
The public's minimal interest in the Report's summaries of personnel records is outweighed by the Office of the Auditor employees’ significant privacy interests in those discussions. The Report's summaries of formal personnel records are therefore exempt from the UIPA's disclosure requirements under HRS § 92F-13(1).
b. Findings and discussions exclusively concerned with minor misconduct by non-Subjects
The Report contains two findings concerning minor misconduct by a non-Subject. And there are scattered sentences within the Report that exclusively concern non-Subjects’ compliance, or lack thereof, with various Office of the Auditor polices. (For example, the leave and computer use policies.) These lines are diffuse throughout the Report. But collectively they, and the two findings referenced above, are, "akin to the information maintained in a personnel file." See OIP Op. Ltr. No. 98-05 at 20. So the non-Subjects whose compliance or non-compliance with workplace policies is addressed in the Report have a significant privacy interest in those discussions and findings under HRS § 92F-14(b)(4).
Formal summaries describing an employee's compliance or non-compliance with written workplace policies – unlike lengthy qualitative accounts of office grudges or written descriptions of employees’ routine interactions and relative popularity – are the type of documents one would expect to find in the files of an agency's personnel department.
This privacy interest encompasses only information directly and exclusively concerned with the issue of an individual's compliance or non-compliance with an established workplace policy. Non-Subjects do not have significant privacy interests in, for example, discussions about the Subjects’ uneven or unfair implementation of those policies.
The public's interest in learning about minor policy violations committed by low-ranking Office of the Auditor employees over six years ago is low. So even though this information does concern public employees’ performance of their official duties, the public's interest in its disclosure does not outweigh the non-Subjects’ significant privacy interests in the information. Thus, to the limited extent the Report contains findings and discussions that are exclusively concerned with non-Subjects’ policy infractions, that information is exempt from the UIPA's disclosure requirements under HRS § 92F-13(1).
c. Interviewees’ names – but not Subjects’ - fall within the Privacy Exemption
The public does not gain better insight into the workings of the Office of the Auditor by learning the identities of those interviewed or mentioned in the Report: it lacks even a trace of interest in this information. See OIP Op. Ltr. No. 98-05 at 18 ("[T]here is little or no public interest in the disclosure of the information which identifies witnesses and complainants."); OIP Op. Ltr. No. 10-03 at 5 ("[T]he public interest in shedding light on the agency's operations is generally served by disclosure of the nature of alleged misconduct and how the agency responded to it, without the name of the concerned employee and other details that could reasonably lead to the employee's identification."); Cf. Albuquerque Publ'g Co. v. U.S. Dep't of Justice, 726 F.Supp. 851, 856 (D.D.C. 1989) (observing that the names of third parties associated with Drug Enforcement Administration investigation are "irrelevant" to question of how DEA conducts its investigations).
The public has no interest in knowing the identities of those interviewed and mentioned in the Report. So even though the non-Subjects do not have a significant privacy interest in the Report as a whole, the disclosure of their names would be a clearly unwarranted invasion of privacy.
The Report also contains information such as job titles and references to individuals’ professional history that – though not as directly identifying as a name – might still enable those intimately familiar with the inner workings of the Office of the Auditor in the mid-2010s to connect the dots on who's who even with the redactions. This information is "identifying information." See Rose, 425 U.S. at 380, 96 S.Ct. 1592 (stating that "what constitutes identifying information ... must be weighed ... from the vantage of those who would have been familiar" with the matter). And in many cases involving "significant" privacy interests, its disclosure could "constitute a clearly unwarranted invasion of personal privacy." But that is not the case here. While the public has no interest in knowing interviewees’ identities, it does have a cognizable interest in helpful contextualizing information about interviewees’ positions. Because of this public interest in the identifying information and the non-Subject employees’ lack of a significant privacy right in it, the disclosure of this information would not constitute a clearly unwarranted invasion of personal privacy.
Because there is not a trace of public interest in knowing the non-Subjects’ names, our conclusion that these names should be redacted is fully consistent with our holding that the non-Subjects do not have a significant privacy interest in the Report. See Org. of Police Officers, 149 Hawai‘i at 504, 494 P.3d at 1237 (explaining that information in which there is zero public interest may fall within the Privacy Exemption even if there are no significant privacy interests in it). The dissent's contention to the contrary, see dissent at 151 Hawai'i at 95 n.17, 508 P.3d at 1181 n.17, is puzzling.
The same is not true with respect to the Subjects’ names: the public's interest in monitoring the conduct of the Office of the Auditor's managerial staff outweighs any privacy interests the Subjects may have in the non-disclosure of their identities. See Peer News I, 138 Hawai‘i at 80, 376 P.3d at 28 (Pollack, J., concurring) (quoting OIP Op. Ltr. No. 98-05 at 21 for the proposition that "[c]ourts have identified the public interest in disclosure of the identities of employees as one which lies in holding those public officials accountable for their conduct"). The Subjects’ names, then, are not shielded from UIPA disclosure by the Privacy Exemption.
d. The Report's discussions of individuals’ medical conditions, disabilities, and bodies fall within the Privacy Exemption
The Report documents several allegations of harassment or adverse treatment based on perceived disability or sickness. These references are information "relating to [a] medical ... condition." See HRS § 92F-14(b)(1). Under HRS Section 92F-14(b)(1), this category of information is one in which individuals may have a significant privacy interest.
An individual's privacy interest in, for example, a colleague's vague reference to "medical issues" may be lower than their interest in more clinical health information. But the individuals whose disabilities, health, and bodies are discussed – even in passing – by the Report have a "significant privacy interest" in those discussions.
The public interest in learning about the few allegations in the Report concerning medical conditions is very low. This information doesn't shed light on a government activity. And it implicates personal, rather than professional concerns.
Given these considerations, significant privacy interests outweigh the public's interest in the disclosure of information concerning health, disability, and body size. Disclosing this information would be a "clearly unwarranted invasion of personal privacy." See HRS § 92F-13(1). This small subset of information in the Report that relates to individuals’ medical conditions is thus exempt from the UIPA's disclosure requirements. See id.
C. The Report should be redacted, not withheld
The Attorney General contends that because it would be impossible to segregate disclosable from non-disclosable information in the Report, redaction will not do. The entire Report must be withheld.
The redactions allowed by this opinion are narrow. But even if they were far more widespread, they would not justify the Report's nondisclosure.
The UIPA is intended to, among other things, "[p]rovide for accurate, relevant, timely, and complete government records" and "[e]nhance governmental accountability through a general policy of access to government records." HRS §§ 92F-2(2), (3). These aims would be undercut if the presence of redactable information within a record could justify its total nondisclosure. When some, but not all, of a record is exempt from UIPA disclosure, the record may be entirely withheld only if the permissible redactions are so extensive that what's left is an incomprehensible mishmash of blacked-out paragraphs, scattered words, and punctuation. If the unredactable material within a given record conveys information, it must be disclosed.
Here, the information within the Report concerning individuals’ names, personnel records, and medical conditions can be "readily detected and redacted from the [Report] without rendering the remaining [Report] information meaningless." See OIP Op. Ltr. No. 09-02 at 5 (Sept. 9, 2009). These redactions thus do not provide any basis for withholding everything else in the Report. See OIP Op. Ltr. No. F17-02 at 9 (Dec. 8, 2016) ("An agency cannot use the presence of some protected information ... to justify a wholesale redaction of all information.").
III. CONCLUSION
The State AG has not met its burden of showing that the Report, by and large, comes within a UIPA exemption. So regarding the vast majority of the Report, the UIPA's presumption favoring disclosure has not been overcome.
We vacate the circuit court's final judgment and remand to the circuit court.
Within 60 days of the entry of our judgment the State AG shall present the circuit court with proposed redactions to the Report.
Descriptions of documents retrieved from Office of the Auditor's personnel files and relating to individual employees may be redacted. Information exclusively about policy infractions by non-Subject employees may also be redacted.
Any sentences concerning the physical health, disability-status, mental illness, or body size of an Office of the Auditor employee may also be redacted.
Finally, the names of interviewees and non-Subjects employed by the Office of the Auditor and discussed in the Report may be redacted.
The circuit court shall review the State AG's proposed redactions and shall disallow any that are inconsistent with this opinion.
Within 90 days of the entry of our judgment the State AG shall give a copy of the Report - with only the redactions allowed by this opinion – to Civil Beat.
OPINION BY RECKTENWALD, C.J., CONCURRING IN PART AND DISSENTING IN PART, IN WHICH McKENNA, J., JOINS
I. INTRODUCTION
I agree with much of the Majority's analysis, but would accord greater weight to the privacy interests of non-supervisory employees at the Office of the Auditor. Although I would disclose the bulk of the Department of the Attorney General's (DAG) report, I reach this conclusion only after balancing the significant privacy interests of the employees who, through no fault of their own, were caught up in its investigation.
In short, I agree with the Majority that the public has a compelling interest in the DAG's report on the Office of the Auditor (the Report) to the extent that it sheds light on the DAG's investigation and the Auditor's performance of its statutory and constitutional duties. However, I depart from the Majority inasmuch as I conclude that employee-witnesses who were interviewed – that is, those who were not subjects of the investigation - have significant privacy interests in the Report's contents. The Majority's holding to the contrary is inconsistent with the plain language and purposes of the Uniform Information Practices Act. I cannot agree that employees have only an insignificant interest in personnel-related matters - especially, as here, where those matters are caught up in an employment-misconduct investigation.
Because I conclude that the employee-witnesses have significant privacy interests in the Report, I would balance those interests against the public's interest in disclosure. See Hawai‘i Revised Statutes (HRS) § 92F-14(a) (2012) ; Org. of Police Officers v. City & Cnty. of Honolulu, 149 Hawai‘i 492, 505, 494 P.3d 1225, 1238 (2021). There are significant portions of the Report which contain notes of interviews with the employee-witnesses – the details of which are often personal or embarrassing to the individuals discussed. Because the public has only a slight interest in knowing the identity of these individuals, I would protect their privacy by redacting their positions and professional backgrounds in addition to their names. But given the strong public interest in the substance of what they said, I would otherwise disclose the notes.
In sum, the Majority and I end up in much the same place, but take very different paths in getting there. Accordingly, I respectfully dissent in part. II. BACKGROUND
In April 2015, responding to complaints of workplace harassment and discrimination made by current and former Auditor employees to then-Senate President Donna Mercado Kim, the DAG launched an investigation of Acting Auditor Jan Yamane, Deputy Auditor Rachel Hibbard, and General Counsel and Human Resources Manager Kathleen Racuya-Markrich (collectively, the Subjects). The resulting Report, completed in April 2016, spans some 563 pages and appears to document every email sent or received by the investigator and every interview he conducted. To understand this case, a closer look at the contents of the Report is necessary.
The first twenty-nine pages of the Report detail the steps taken by the investigator in launching the investigation. They describe how he liaised with the relevant legislators, referenced internal Auditor policy documents, and contacted the Subjects. They also describe, point by point, the wide-ranging complaints – two anonymous and three named – that led to the investigation.
The subsequent approximately 300 pages recount the investigator's interviews with the complainants and other employees and summarize the documents and email chains he reviewed. The investigator's notes are often dry but sometimes embarrassing. They cover routine office functions - including long descriptions of contracting/procurement and leave slips - but they also include water-cooler gossip and details about the toxic work environment.
The Report next details the investigator's research into salary practices and his contact with several representatives of government agencies that had recently been audited. It then describes multi-day interviews with each of the Subjects, during which they generally denied or downplayed the allegations.
The Report concludes with a ten-page section titled "FINDINGS" (Findings), wherein the investigator reduces hundreds of pages of interviews and research into a succinct, bullet-point list of policy violations and employment misconduct committed by each of the Subjects. For example, the Report includes Findings such as:
RACUYA-MARKRICH failed to investigate or assign for investigation the discrimination complaint filed by [an employee] relating to YAMANE as prescribed in the Personnel Guide. No investigatory report was located.
...
HIBBARD violated the House Disruptive Behavior policy and created an offensive work environment for [an employee] through harassment. ...
...
YAMANE violated the office's zero tolerance discrimination and harassment policy by making a discriminatory comment ....
...
Audit report findings are sensationalized and the reports issued overly focus on negative findings.
Each finding included the specific incidents, if any, that underlay it.
Honolulu Civil Beat Inc. (Civil Beat) requested that the DAG disclose the Report. The DAG refused. Civil Beat sued under HRS chapter 92F (the Uniform Information Practices Act or UIPA). The circuit court granted summary judgment to the DAG. On appeal, we vacated the judgment and remanded to the circuit court. See Honolulu Civ. Beat Inc. v. Dep't of Att'y Gen., 146 Hawai‘i 285, 298-99, 463 P.3d 942, 955-56 (2020). The circuit court again granted summary judgment to the DAG – with new reasoning – and Civil Beat again appeals. We now consider whether either of two exceptions to UIPA's general mandate of disclosure – the Privacy Exception in HRS § 92F-13(1) (2012) or the Frustration Exception in HRS § 92F-13(3) – shields the Report from disclosure.
The Honorable Keith K. Hiraoka presided.
The Honorable John M. Tonaki presided on remand.
HRS § 92F-13(1) reads: "This part shall not require disclosure of: (1) Government records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy[.]"
HRS § 92F-13(3) reads: "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[.]"
III. DISCUSSION
A. The Public Interest in the Report Dictates that It Must, for the Most Part, Be Disclosed
An important step in determining whether and to what extent a document must be disclosed is identifying the public interest in its disclosure.
Subject to exceptions, UIPA establishes a baseline that all government records are open for public inspection. HRS § 92F-11(a) (2012). One exception shields government records where disclosure "would constitute a clearly unwarranted invasion of personal privacy." HRS § 92F-13(1). The law provides examples of – but does not exclusively enumerate – records in which an individual has a significant privacy interest. See HRS § 92F-14(b) (Supp. 2015). Where a privacy interest is significant, it triggers a balancing test: the document may be withheld unless the individual's privacy interests are outweighed by the public interest in disclosure. HRS § 92F-14(a) ; Org. of Police Officers, 149 Hawai‘i at 505, 494 P.3d at 1238 (citing Peer News LLC v. City & Cnty. of Honolulu, 138 Hawai‘i 53, 76, 376 P.3d 1, 24 (2016) (Pollack, J., concurring)); see also Majority 9-10.
In particular, UIPA seeks to protect the people's interest in "the formation and conduct of public policy" by "[o]pening up the government processes to public scrutiny and participation." HRS § 92F-2 (2012). Thus, like the federal Freedom of Information Act (FOIA), UIPA demands the disclosure of information – unless otherwise provided – that "she[ds] light on an agency's performance of its statutory duties or otherwise let[s] citizens know what their government is up to." U.S. Dep't of Def. v. Fed. Labor Rels. Auth., 510 U.S. 487, 497, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (quoting U.S. Dep't of Just. v. Reps. Comm. for Freedom of Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) ) (internal quotation marks omitted). In the context of employment-misconduct investigations, the Office of Information Practices (OIP) has recognized that the public interest "generally lies" in (1) "confirming that the [agency] is properly investigating" and (2) "holding ... public officials accountable for their conduct." See OIP Op. Ltr. No. 98-05, at 21 (Nov. 24, 1998).
Here, the Report implicates both of these interests. The Office of the Auditor is created by the Hawai‘i Constitution and tasked with certifying the government's financial statements and auditing "the transactions, accounts, programs and performance of all departments, offices and agencies of the State and its political subdivisions." Haw. Const. art. VII, § 10. Its head is appointed by both houses of the legislature and can only be removed for cause by a two-thirds vote of a joint session. Id. Simply put, it is a constitutionally significant body with an important role in how the government functions as a whole.
It is noteworthy here that the legislature asked a law-enforcement agency housed within the executive branch to launch an investigation of the Auditor, whom the legislature alone has the power to appoint and remove. Cf. Bowsher v. Synar, 478 U.S. 714, 731-32, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) (suggesting that because the Comptroller General could only be removed by Congress, that office was part of the legislative branch). The Report thus implicates the legislature's oversight role over the Auditor and is imbued with a considerable public interest as the account of a controversy involving both the legislative and executive branches. In short, it sheds light on the DAG's investigation of the Auditor as well as the Auditor's ability to carry out the duties entrusted to it by statute and the state constitution. The public's interest in this information must be afforded significant weight.
Accordingly, I agree with the Majority that our analysis must begin with the compelling interest of the people in understanding how the government conducts their business. And although I conclude that this interest requires the disclosure of the bulk of the Report, I do so only after balancing the significant privacy interests of the individuals it implicates. Only by recognizing both the public interest and the individual privacy interests in the Report can we carry out the balancing prescribed by UIPA.
B. Government Employees Have Significant Privacy Interests in the Contents of Misconduct Investigations
Government employees do not surrender their privacy when they walk into the office. The Majority reads UIPA in large measure to protect only those employees who are investigated for misconduct, but this result is unduly restrictive and inconsistent with UIPA. Specifically, UIPA's text recognizes that State employees retain a significant privacy interest in their everyday work activities – all the more so when those activities are caught up in an investigation of their colleagues’ misconduct.
Here, the Auditor employees have significant privacy interests in the Report for at least two related reasons. First, government employees retain an interest in personnel records that document their daily work activities. Second, Auditor employees have significant privacy interests by virtue of their status as witnesses and participants in a government investigation of employment misconduct.
First, just like private employees, government employees have an interest in keeping their work lives at work. This commonsense observation is supported by the text of UIPA. The examples of significant privacy interests in HRS § 92F-14(b) include "[i]nformation in an agency's personnel file" and "[i]nformation comprising a personal recommendation or evaluation." As OIP has recognized, these examples bring within the Privacy Exception "personnel-related information within a report not contained in the employee's personnel file." See OIP Op. Ltr. No. 98-05, at 19.
Much of the information in the Report is personnel related and deserving of protection. Among the sensitive details the Report documents: an analyst was made to sit at a receptionist's desk and take calls as a form of punishment; Yamane slammed a ream of paper on a table to scold an employee; and a particular employee may or may not have been unfriendly (this last topic was discussed ad nauseum across numerous interviews). The Report discusses employees’ work evaluations, demotions, promotions, and other employees’ opinions about them. It covers minor infractions of leave policies. It discusses who was popular or unpopular and who sat together at lunch.
The Majority acknowledges that UIPA protects personnel-related records even if they are not physically located within an agency's personnel files. Majority at 151 Hawai'i at 80–81, 508 P.3d at 1166–67. Moreover, it finds that the Report was a personnel-related record as to the Subjects because (1) it touches on "classic human resources concerns" and (2) it was initiated by "a unit of government with power over the auditor." Id. at 15-16. However, as to the other Auditor employees, the Majority concludes that "the Report is not these employees’ personnel-related information," in part because it "would be out of place in any one of the non-Subjects’ personnel files." Majority at 151 Hawai'i at 83, 508 P.3d at 1169. In short, the Majority appears to conclude that only employees being investigated or those who are the "focus" of a document have significant privacy interests. See Majority at 151 Hawai'i at 82, 508 P.3d at 1168. ("The Report does mention Office of the Auditor workers other than the Subjects. But these folks are not its focus." (footnote omitted)).
This limitation is found nowhere within UIPA's text. To the contrary, UIPA protects "[i]nformation in an agency's personnel file." HRS § 92F-14(b)(4) (emphasis added). It notably does not protect information in an employee's personnel file. And it does not provide that one's privacy interests depend on whether they are being investigated or are the focus of a document. Appropriately so: the Majority's reading affords more protections to employees suspected of misconduct than those merely going about their day-to-day business. Here, that means affording a significant privacy interest to those accused of harassment, but not those whom they are accused of harassing.
The Majority further strains to protect information about "minor misconduct by non-Subjects" while revealing almost all other information about them. Majority at 151 Hawai'i at 86, 508 P.3d at 1172. That is because this information is "akin to the information maintained in a personnel file." Id. at 28 (quoting OIP Op. Ltr. No. 98-05, at 19). It is not clear to me why this information is akin to that found in a personnel file, but other information – for example, whether an employee was promoted or demoted, liked or disliked, reprimanded or rewarded - is not.
On the other hand, I agree with the Majority's decision to redact summaries of the performance appraisals of individual employees because those individuals’ privacy interests outweigh the public interest in that information. Majority at 151 Hawai'i at 86–87, 508 P.3d at 1172–73. I also agree that information relating to medical conditions should be redacted, consistent with HRS § 92F-14(b)(1). Majority at 151 Hawai'i at 88, 508 P.3d at 1174.
Once again, the Majority reads limits into UIPA that unduly restrict the privacy rights of employees. It does not justify why employees only have significant privacy interests when they are suspected of misconduct. And it fails to recognize that UIPA protects personnel-related information as such. This result is both unwise and unnecessary.
The second reason that the Auditor employees possess significant privacy interests in the Report is that, in addition to protecting personnel-related information in general, UIPA specifically provides for individual privacy interests in employment-misconduct investigations. Although HRS § 92F-14(b)(4) provides a privacy interest in personnel records, subsection (B) states that individuals have no significant privacy interests in certain "information related to employment misconduct that results in an employee's suspension or discharge." (Emphasis added.) The clear implication is that "information related to employment misconduct" constitutes personnel-related information, which is imbued with a privacy interest to the extent it does not result in such discipline. In other words, the legislature recognized within UIPA's text that employment investigations touch on sensitive areas implicating significant privacy interests for both subjects and witnesses.
This view is shared by both the OIP and the federal courts. The OIP has recognized that government employees who participate in employment-misconduct investigations have significant privacy interests in the fact of their participation and the information they share. See OIP Op. Ltr. No. 98-05, at 17-18 (recognizing a significant privacy interest in administrative investigation reports prepared in response to internal and external complaints about police officers). And, even without the explicit statutory basis provided by HRS § 92F-14(b)(4)(B), federal courts interpreting FOIA have come to the conclusion that government-employment investigations are protected. See OIP Op. Ltr. No. 98-05, at 17-18 (collecting cases); see also Pub. Emps. for Env't Resp. v. U.S. EPA, 926 F. Supp. 2d 48, 60 (D.D.C. 2013) ("To the extent that the report contains information revealed by interviewees who spoke candidly so that [an employee's misconduct] allegations could be addressed, those persons have a compelling privacy interest in non-disclosure."). This holding comports with the commonsense understanding that when employees speak to investigators about their coworkers’ wrongdoing, the witnesses’ privacy interests in those conversations are significant.
The Majority asserts that OIP Opinion Letter No. 98-05 does not support my position because that opinion letter "presumed that only the subject of an administrative investigation could have a significant privacy interest in it as personnel-related information." Majority at 151 Hawai'i at 83 n.12, 508 P.3d at 1169 n.12. To the contrary, that opinion letter recognized "the substantial privacy interest of a source in a government investigation," specifically citing to federal cases involving workplace-misconduct investigations. See OIP Op. Ltr. No. 98-05, at 17-18 (citing Housley v. U.S. Dep't of Treasury, 697 F. Supp. 3, 5 (D.D.C. 1988), for the proposition that "co-workers and supervisors who voiced opinions concerning an employee's conduct had a substantial interest in seeing that their participation in the investigation was not disclosed"). Rather than presuming that non-subjects in government investigations had no significant privacy interests, it specifically found that "information which identifies witnesses and complainants is .... exempt from disclosure under [HRS §] 92F-13(1) ... as information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy." Id. at 17.
The Majority's view comes down to an atomistic reading of UIPA's privacy protections that denies employees significant privacy interests in a document to the extent they are "not its focus," it was "not drafted because of them," it would not help in "employment-related decisions about them," and/or it would be "out of place in any one of ... [their] files." Majority at 151 Hawai'i at 83, 508 P.3d at 1169. As discussed, these limitations are inconsistent with the plain language of the statute: UIPA protects "[i]nformation in an agency's personnel file," not information about particular employees located in their particular files. HRS § 92F-14(b)(4) (emphasis added).
Moreover, the legislature intended UIPA as a "useful framework for handling records questions," not an exhaustive enumeration of recognized privacy interests. Conf. Comm. Rep. No. 112-88, in 1988 House Journal, at 817-19, 1988 Senate Journal, at 689-91. Rather than setting out a laundry list of individual privacy interests, the legislature "prefer[red] to categorize and rely on the developing common law." S. Stand. Comm. Rep. No. 2580, in 1988 Senate Journal, at 1094. HRS § 92F-14 evinces this intent: it announces - including in its title - that it contains only "examples" of significant privacy interests. In other words, while I fully agree with the Majority that UIPA establishes a strong presumption of disclosure, Majority at 151 Hawai'i at 78–79, 508 P.3d at 1164–65, the exemptive provisions – HRS §§ 92F-13 and 92F-14 – are not narrowly worded statutes. Parsing them as the Majority does fails to give effect to the legislature's purpose of establishing a common law framework that balances both public and individual interests. To the extent the Majority applies this unduly narrow reading to limit the privacy interests of government employees in their day-to-day lives at the office, I respectfully disagree.
C. The Employees’ Privacy Interests Must Be Weighed Against the Public Interest in the Interview Notes
The Majority concludes that because the employees’ privacy interests in the Report are not significant, these interests are eclipsed so long as there is more than a scintilla of public interest in the Report's disclosure. Majority at 151 Hawai'i at 85–86, 508 P.3d at 1171–72. Thus, the Majority chooses to redact only the names of the employee-witnesses. Majority at 151 Hawai'i at 87–88, 508 P.3d at 1173–74. Because I conclude that the employees’ privacy interests are significant, I find that it is necessary to balance these interests against that of the public. In my view, this balance dictates that not only their names, but also identifying details such as their professional backgrounds, educations, and job titles must be obscured.
In balancing the interests in the Report, the question is not whether the public interest outweighs the privacy interests in the document as a whole, but rather how this balance applies to each part of the Report. See Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977) (finding that "[t]he focus of the FOIA is information, not documents"). Thus, each portion must be considered within the context of the entire document.
First, the Report's introductory materials, which outline the steps that the investigator took, serve the public interest that the Majority identifies in "assessing the manner in which the government investigates complaints and allegations of wrongdoing." Majority at 20-21. And the Findings succinctly capture the most well-founded and serious allegations in the Report; thus, their release serves the public interest in assessing how the Auditor's office carried out its official duties. But once these materials are released, the importance of the remaining sections – the extensive interview notes compiled by the investigator – is diminished.
To be sure, these notes retain an appreciable public interest. Their disclosure would allow the public to evaluate the DAG's investigation for itself. Further, learning the perspectives of individual employees provides the public an opportunity to independently assess the weight of the evidence against the Subjects. These interests are not trivial.
However, in light of the information disclosed through the introductory materials and the Findings – and the bulk of the interview notes, which I would release – the public has only a minor interest in the identities and backgrounds of the employees interviewed. The Majority describes information about the employee-witnesses’ professional backgrounds and job titles as "helpful contextualizing information." Majority at 151 Hawai'i at 87 n.17, 508 P.3d at 1173 n.17. But given what is already disclosed, the public interest in these details is diminished. It will help the public contextualize the investigation and its conclusions only slightly to know what position a particular employee occupied within the Auditor's office. And on the other hand, as discussed, these employees have significant privacy interests in keeping their identities from being disclosed.
The Majority proposes to anonymize these employees by only redacting their names. But this result does not adequately protect their identities. Rather, I would redact not only the names of the employee-witnesses but also identifying information such as the positions they occupied, their current roles or occupations as of the time of the investigation, their professional backgrounds, and where they went to school. This modest step would further protect these employees’ identities while only slightly hindering the utility of the Report, as redacted, to the public.
The Majority's decision to redact the names of the employee-witnesses is inconsistent with its conclusion that they have no significant privacy interests in most of the Report. The Majority asserts that the public has a "cognizable interest in helpful contextualizing information about interviewees’ positions." Majority at 151 Hawai'i at 87 n.17, 508 P.3d at 1173 n.17. The witnesses’ names are perhaps the most helpful contextualizing information about them, since learning the names of the employee-witnesses would allow readers to cross-reference their contributions in different parts of the Report and assist in deciding what weight to give their statements. In other words, the public has more than a scintilla of interest in the names of the non-subject employees. The Majority's conclusion that the employees have no significant privacy interests in the Report would compel it to also release their names. This result illustrates the improvidence of the Majority's position.
To the extent the public's understanding of the Report is aided by understanding which witnesses were relatively higher-level employees who, for example, had others reporting to them, this information emerges in the content of their interviews, from their description of their work lives and their roles at the office. I do not object to disclosing the employees’ descriptions of their duties, only their backgrounds.
Anonymity is not an on/off switch that can be achieved by simply blacking out the names of those sought to be protected. Cf. Dep't of Air Force v. Rose, 425 U.S. 352, 381–82, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ("[R]edaction cannot eliminate all risks of identifiability .... But redaction is a familiar technique in other contexts and exemptions to disclosure under the [FOIA] were intended to be practical workable concepts." (footnote omitted)). The Supreme Court has therefore condoned the "deletion of personal references and other identifying information," in addition to names, to protect individuals’ privacy. Id. at 381, 96 S.Ct. 1592 (emphasis added).
Thus, balancing the privacy interests in a document with the public interest in its disclosure entails a choice about how extensively to anonymize the persons described. The more details about a person that a document contains, the wider the circle of people becomes who can identify them. Cf. id. at 380, 96 S.Ct. 1592 (holding that "what constitutes identifying information ... must be weighed not only from the viewpoint of the public, but also from the vantage of those who would have been familiar" with a matter). In sum, the level of redaction required will depend on the public interest involved; the privacy interests implicated; and the extent to which the details sought to be disclosed would identify those described to their personal relations, colleagues, and the public at large.
In this case, the public interest in the employees’ identities, as discussed, is not so weighty as to require that their professional backgrounds be disclosed, even though they may provide helpful context. This information would immediately identify the employees to those who know them or were familiar with the Auditor during the time period covered by the Report. And even members of the public who might take the time to cross-reference this information, for example by examining the employees’ LinkedIn pages, could likely identify at least some of those described.
In some circumstances, identifying information may be of sufficient importance that it must be disclosed, notwithstanding the privacy interests involved. For example, in News-Press v. U.S. Department of Homeland Security, the court held that the addresses of Federal Emergency Management Agency (FEMA) aid recipients had to be disclosed, even though they might be identifying, because disclosure served "the public interest in determining whether FEMA has been a proper steward of billions of taxpayer dollars." 489 F.3d 1173, 1196 (11th Cir. 2007).
On the other hand, there may be situations where the sensitivity of the information implicated and the ability of others to identify those involved justifies the withholding of entire documents or portions of documents. So, for example, in Alirez v. National Labor Relations Board, the Tenth Circuit held that interview notes generated as part of an employment investigation were "highly intimate and personal" and had to be withheld in their entirety because, "[e]ven sanitized, these documents would enable Mr. Alirez, and others who had specific knowledge of these incidents, to identify readily the informant and persons discussed in each document." 676 F.2d 423, 427-28 (10th Cir. 1982) ; see also Sorin v. U.S. Dep't of Just., 280 F. Supp. 3d 550, 566 (S.D.N.Y. 2017) (citing Alirez and observing that "courts have permitted witness interviews to be withheld in full ... after noting the danger that even redacted witness statements might facilitate the speaker's identification"), aff'd, 758 F. App'x 28 (2d Cir. Dec. 6, 2018).
Succinctly, although this information may help somewhat to contextualize the employee-witnesses’ contributions to the Report, this public interest is not so significant as to outweigh the privacy interests of the non-subject employees in their identifying information. For that reason, it must be redacted.
In sum, the Majority goes astray to the extent that it holds employees have no significant privacy interests in the bulk of the Report. And although I find that this privacy interest is, for the most part, outweighed, it dictates that at least the employees’ patently identifying personal information must be redacted. Moreover, the Majority's failure to recognize the privacy interests of employee-witnesses in misconduct investigations will have a deleterious impact on future cases where these interests are implicated. UIPA provided for open government; it did not provide that State employees must go to work in a fishbowl.
IV. CONCLUSION
I respectfully disagree with the Majority's view that government employees who have been harassed by their supervisors have no significant privacy interests in the details of that harassment. And although the Report is imbued with a compelling public interest, this interest does not justify disclosing obviously identifying information about the Auditor's employees. Accordingly, and for the reasons mentioned above, I respectfully dissent in part.