Chapter 16 – Disclosure under the Hawaii Uniform Information Practices Act (UIPA)

I. State of Hawaii Policy and the Hawaii Uniform Information Practices Act (UIPA)

The State of Hawaii Policy on government records disclosure is set out in Chapter 92F of the Hawaii Revised Statutes and is based on the premise that transparency in government proceedings is essential to a strong democracy. All government records are open to public inspection unless there is a compelling reason against disclosure. These exceptions are set out in law, §92F-13, HRS. An individual’s reasons for requesting access to government records is not relevant, except where a waiver of fees is requested. Disclosure exemptions that may apply to HIOSH include:

• Government records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy;
• Government records pertaining to the prosecution of any judicial or quasi-judicial action to which the State or any county is or may be a party, to the extent that such records would not be discoverable;
• Government records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function; and
• Government records, which, pursuant to state or federal law including an order of any state or federal court, are protected from disclosure.

Commensurate with the duty to provide access to records is the responsibility to maintain records. This means that records required to be maintained (see State Records Retention rules and/or guidelines) must also be protected from damage or disorganization, and reasonably maintained in a manner where information can be readily retrieved.

A. Key Definitions.

1. Government record – information maintained by an agency in written, auditory, visual, electronic, or other physical form.
2. Personal record – any item, collection, or grouping of information about an individual (a natural person) that is maintained by agency. It includes, but is not limited to the individual’s education, financial, medical, or employment history, or items that contain or make reference to the individual’s name, identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph.
3. Clearly unwarranted invasion of personal privacy – where the privacy interests of the individual outweighs the public interest in disclosure. Examples include:
   1. Medical and health records, including autopsy reports and photographs, where the individual to which the record relates is identified, or where a reasonable person can conclude that the record belongs to a specific individual. Such records are also protected by the Health Insurance Portability and Accountability Act (HIPAA);
   2. Residential address, residential telephone numbers, personal wireless telephone numbers, personal electrical mail addresses, social security numbers, dates of birth of an individual, except that if the individual does business out of their home that address and contact information would be disclosable.
4. Access – inspection of disclosable government records, acquisition of copies of disclosable government records, or both, when requested by any person.
5. Disclosure – to make available for public inspection and copying during regular business hours.
6. Acting in good faith – carefully examining a request for public records, reviewing the requested records in order to determine which portions if any, of the record are exempt from disclosure by law, and providing access to all requested records except for those which are clearly exempt from disclosure.

B. Government Records.

1. Electronic records.
   See above definition of “government record”. Increasing amounts of public information are now contained in electronic format, rather than on paper. Electronic records also include e-mails when they are created or received in the transaction of public business and retained as evidence of official policies, actions, decisions, or transactions. Such messages must be identified, filed, and retained just like records in other formats.
   
   As yet, the State of Hawaii has not received a comprehensive guide as to what e-mails must be retained, and are thus disclosable. The Office of Information Practices has issued several opinions (see http://oip.hawaii.gov/laws-rules-opinions/) over the years and should be consulted if an issue arises.
2. Personal records.
   HIOSH does maintain personal records. Most case files contain references to an individual’s name or other personal information. However, such information is not filed and cannot be easily retrieved using individual personal identifiers, with the exception of Whistleblower cases. HIOSH records are maintained by establishment name (employer name) and inspection number.
   
   Agencies are not required to create documents or compile information from various records in order to comply with a request for specific information, therefore, requests for personal records are normally not applicable to HIOSH except for Whistleblower cases, which are maintained by both employer name and complainant name.

II. Procedures.

UIPA sets out two paths based on whether the request was informal or formal. The differences in agency (HIOSH) response would be the requirement to provide notice (Agency’s Notice) in accordance with §2-71-14, HAR within ten business days to the requester if the request was formal, and to disclose the record, if the record is disclosable, within ten business days (with some exceptions). OIP rules state that for informal requests access must be provided in a “reasonably timely manner”. Due to perennial severe clerical staff shortages and the various constraints such as protection of personal privacy, trade secret, and witness confidentiality among others, HIOSH policy is to respond to informal requests within 30 business days.

The following are some of the types of records requests commonly received by HIOSH:

A. Enforcement Inspection Case Files.

Requests to view or obtain copies of inspection case files will normally be for a specific employer. Sometimes the requester will also provide the specific inspection number. If the request is for a particular accident victim, the requester should be informed that HIOSH does not maintain files by accident victim’s names and to provide further information such as the name of the employer.

1. Specific employer (Requester has named a specific employer by name)
   1. Search osha.gov data base for inspection numbers for specific employer where inspections were conducted by HIOSH.
      1. Under “Data and Statistics” at top rail, click on “Establishment Search” under Inspection Data.
      2. Enter Establishment name as stated by the requestor. If request was informal and oral, clarify spelling with requester.
      3. Under State, select “Hawaii”
      4. Under Fed & State, select “State”.
      5. Under OSHA Offices, select “Hawaii”.
      6. Under Case Status, select “All”
      7. Under Violation Status, select “Both”
      8. Under Inspection Date, select the date range of the request, or select the earliest Start Date available if requester did not specify.
   2. If search results indicates “Your Establishment search returned 0 results”, inform requester using the Agency’s Notice that the search returned zero results.
   3. If search results yields several inspections with various name spellings for the employer, different SIC codes, and different addresses, the requester should be asked to provide further information to better narrow the search to the specific employer.
   4. Similarly if the inspection number provided does not match the employer name provided, clarification must be obtained from the requester.
   5. Case is still open
      1. Government record, except for those portions which were previously made public, e.g., posted within the workplace or made public as in osha.gov public database, is not disclosable under §92F-13(3), “government records that, by their nature, must be confidential in order for the government to avoid the frustration of a legitimate government function”
      2. The only releasable records (previously required to be posted in the workplace) are the following:
         1. Citation and Notification of Penalty;
         2. Informal Settlement Agreement (ISA);
         3. Abatement Verification/Certification;
         4. Petition for Modification of Abatement Dates (PMA), and HIOSH response either denying or granting PMA;
         5. Hawaii Labor Relations Board (HLRB) settlements and decisions and orders.
            Note: Even if the only reason for the case being still open is penalty payment, the exemption under §92F-13(3) still applies since obtaining a court order to collect may require defending the original issued penalties.
      3. If the requester responds that they wish to be notified when the case is closed, they shall be provided the inspection number and the osha.gov website so they can make another request for additional documents when the case is closed.
   6. Case is closed.
      1. Determine whether there is an ongoing civil case.
         1. Go to: http://www.courts.state.hi.us/legal_references/records/hoohiki_disclaimer.html
         2. Enter name or names of parties, e.g. business name, or victim’s family name (if accident case)
         3. If search yields current civil case, then §396-14 applies and the case file cannot be disclosed except for records that were previously required to be posted in the workplace (see above).
      2. If NO ongoing civil case, provide access to the redacted or segregated case file.
      3. Redact or segregate the following:
         1. Names and other identifiers of complainants, and witnesses, including employees interviewed regarding potential hazards in the workplace. (§396-8(f), HRS)
            
            Note: Any information that could be used to identify the witness/complainant is to be withheld. Such information might include job title, length of employment, or sex of the individual if only one of that gender is employed in the establishment or specific area of the workplace.
         2. Personal privacy information (see I.A.3, above)
         3. Trade Secrets (see Section 396-13, HRS, and Chapter 3, VII.E. on Trade Secrets)
         4. Confidential attorney-client communications; e.g. memos, e-mails, summaries of telephone calls.
         5. Supervisory notes addressing discipline or performance issues. While such notes or comments should never be filed within a specific enforcement case file, there may be instances where the notations were inadvertently left in. They should be removed and placed in the appropriate personnel file.
         6. Working drafts of forms, correspondence and reports. While original field notes, communication summaries, etc. cannot be altered and must remain in the case file, drafts of reports, letters, and forms should be immediately removed when replaced with the final copy. If they have been left in the case file when the request was made, they must be redacted and the requester notified that such material was removed. Cite §92F-13(3), HRS for reason or non-disclosure.
            
            Note: The requester must be informed of the specific record or parts of the record that will not be disclosed as well as the specific legal authorities under which the request for access is denied either under §92F-13, HRS or other laws. So, for example, if information was removed as confidentiality of trade secret information, then the requester must be informed that trade secret information protected under §396-13, HRS was removed.
      4. Case File has been destroyed. HIOSH is obligated to maintain case files in accordance with State and federal retention guidelines. If a requester asks for access to a case file that has been destroyed, the Agency’s Notice should so indicate
      5. Criminal penalties. §92F-17, HRS provides criminal penalties (misdemeanor) for an officer or employee of an agency who intentionally discloses or provides a copy of a government record, or any confidential information explicitly described by specific confidentiality statutes, to any person or agency. Therefore, redaction and/or segregation must be performed with care.
         
         Persons performing redaction and/or segregation must be appropriately trained.
      6. Section 92F-19, HRS governs limitations on disclosure of government records to other agencies. Further §92F-19(b) subjects the receiving agency to the same restrictions on disclosure of the records as the originating agency.
2. Records request for other than specific employer. Sometimes a requester will ask for inspection information based on other criteria such as industry, location, or date range. These types of requests are not common.
   1. Industry. The osha.gov “Establishment Search” can be searched for a specific SIC code or industry grouping.
   2. Location. Case files are not retrievable by location other than by county. Specific addresses, census tracts, or neighborhood data is not currently available. The requester should be informed via the Agency’s Notice.
   3. Date Range. The osha.gov “Establishment Search” can be searched for specific date ranges.
   4. For all such requests, only Hawaii state HIOSH inspections are relevant. If the requester asks for information for federal OSHA or other jurisdictions, they should be notified to request the information from OSHA or the specific state.
   5. The same criteria for disclosing records based on whether the case is open or closed apply.
3. Fees.
   1. Search, review and segregation. §2-71-19, HAR, governs the fees that can be assessed to the requester for search, review and segregation. Briefly, the fees that can be assessed can be followed under Appendix A:
      1. Search includes time spent accessing osha.gov database and locating case file (including returning case file).
      2. Review and segregation time includes:
         1. Time spent by CSHO to identify records or portions of records requiring redaction or segregation and to itemize their categories such that the Agency’s Notice can be properly prepared as to the kinds of information that was redacted/segregated and the appropriate section of §92F or other law;
         2. Time spent by clerical staff to make copies and redact information with broad permanent marker;
         3. Time spent to by clerk to review redacted copies to ensure that the information is not still readable, and if non-disclosable items are still readable, to take further action to ensure proper redaction.
   2. Other fees.
      1. Photocopying: $.05 per page
      2. Postage and Handling: Actual postage costs.
      3. HIOSH policy is not to charge for time for preparing the Agency’s notice nor for preparing the requested material for mailing.
   3. Waiver of fees when public interest is served (§2-71-32, HAR).
      1. This is the only time when the intent of the requester is germane. The requester must have the primary intention and the actual ability to widely disseminate information from the government record to the public at large.
      2. The requester must include a statement of facts supporting his/her request for waiver of fees due to interest in public service, in accordance with §2-71-12, including the requester’s identify.
      3. A waiver of fees is in the public interest when:
         1. The requested record pertains to the operation or activities of an agency (government);
         2. The record is not readily available in the public domain; and
         3. The primary intention is to widely disseminate the information to the public at large. Note that requester must also have the ability to do so.
      4. The waiver of fees is for the first $60 of review and segregation fees. Photocopying and postage may still be assessed.
   4. Pre-payment of fees. HIOSH policy is to request pre-payment (50% of fees and 100% of costs) prior to releasing the requested records. The Agency’s Notice is used to notify the requester that fees must be paid in advance.
4. Agency’s Notice, §2-71-14, HAR. Whether the request was formal or informal, the Agency’s Notice is to be sent to the requester within ten business days, unless there are extenuating circumstances.
   1. If the requester wishes to remain anonymous, they are to be notified that responding to the request would take several days. Since HIOSH has no dedicated staff to this task, it is uncertain as to when the search, review and segregation can be performed. Moreover, HIOSH does not have the ability to “hold” the requested documents aside until the requester returns, therefore, a formal request must be made.
   2. Use HIOSH-OIP-4 (7/1/2014) for the Agency’s Notice. See Appendix 16A
5. Request to examine records. Sometimes the requester does not want to have copies made of the entire releasable portions of the case file choosing instead to review the file and pick and choose only specific documents for photocopying.
   1. Notify the requester, via the Agency’s notice, of when and where they may come in person to review the records. They should be notified that they would be reviewing a redacted/segregated copy of the original case file.
   2. If pre-payment of review and segregation costs is required, the requester is to be notified that upon pre-payment of the fees, a date and time for the examination will be scheduled.
   3. If the requester requests another location other than Honolulu HIOSH office, that location must have an accessible photocopy machine, in case additional photocopies must be made. Due to high costs that would affect HIOSH’s ability to carry out its mission, an off island location is not possible.
   4. The date and time should normally provide at least a week for the requester to make arrangements to arrive and view the records.
   5. A private room should be secured for the review, and a HIOSH employee must be present to ensure that the copy of the case file remains as presented to the requester, i.e., intact and unaltered.
   6. The requester is to identify which pages they wish and the clerk shall invoice the requester for each page requested. There is no need to make additional copies as the unwanted pages shall be discarded.
   7. If the requester wants specific clarification about the type of information that was specifically redacted on a particular page, and is unwilling to accept the generic categories as explained on the Agency’s Notice, the clerk shall contact the specific branch manager to meet with the requester, or if the branch manager is not available, take the name and contact information of the requester for a call from the manager. In this event, a photocopy of the specific page shall be made to help the manager identify the information that would have been redacted.
      
      The manager shall describe the redacted information in broad categories of terms, such as trade secret information, private personal information, or witness and/or complaint identifiers.
6. Authentication of copies. The Hawaii Uniform Information Practices Act does not require certification or attestation regarding the copies of records provided to the requester. However, such services may be rendered by HIOSH. Certification should be signed by at least a Branch Manager or the Administrator in his/her absence and should simply state: “I certify that the attached copies of Inspection No. #########, of [Name of Employer] are true copies with the exception of redacted and segregated material required by State law.”
   
   If the requester requests additional language to authenticate the copies, they should be informed that they may subpoena the records and have a court reporter take a statement from the HIOSH Custodian of Records.

B. Whistleblower (Discrimination) Case Files.

Whistleblower or discrimination investigation case files under §396-8(e), HRS, are similar to enforcement inspection case files except that the complainant’s name is not confidential (§396-8(f), HRS). However, the complainant is still entitled to privacy, so information such as home address, personal telephone or mobile numbers, and birth date is still to be redacted. Other witness identifiers, trade secret, medical information, etc. are also still to be redacted.

C. Consultation Files.

Consultation files are considered confidential per 29 CFR 1908.6(g) and (h), Consultation Agreements. The consultant’s written report may be disclosed only to the employer for whom it was prepared (29 CFR 1908.6(g)(2)). Moreover, HIOSH shall not disclose information that may be used to identify employers who have requested consultation services (1908.6(h)(2), therefore, HIOSH staff shall not even acknowledge whether an employer has requested consultation services or not.

Therefore, all information related to HIOSH consultation services is not disclosable.

D. Other Files.

1. Certified Safety and Health Professionals (CSHP).
   As these are professional certifications, all information is releasable.
2. Certificate of Fitness (COF) holders.
   As these are professional certifications, all information is releasable with the exception of the examination questions and answers.

III. Reports

Report to the Hawaii Office of Information Practices (OIP), annually by state fiscal year (§2-71-3, HAR):

1. The number of requests for access to records for which fees were assessed; and
2. The number of requests for access to records which qualified for a waiver of fees pursuant to section 2-71-32, and the amount of fees waived.

For UIPA Request Forms, view https://labor.hawaii.gov/hiosh/uipa/