Informal Opinion Letter Summary

UIPA Memo 11-11

Permittee Passenger Count Information

Requester asked whether the Department of Land & Natural Resources (DLNR) may withhold passenger count information received from permittees holding Marine Life Conservation District Use Permits for: Commercial Activities in the Molokini Shoal Marine Life Conservation District (Molokini Use Permit) under the UIPA’s frustration exception as confidential business information (CBI).

An agency may withhold CBI under the frustration exception. HRS § 92F-13-3. As a threshold matter, however, that information must in fact be confidential. See generally OIP Op. Ltr. No. 05-13 at 3-4 (to qualify for the frustration exception as CBI, information must not be public already or be of a kind that would customarily not be released to the public by the person from whom it was obtained).

Because the daily passenger count information may be readily witnessed in a public space, OIP found that this information reported to DLNR would not qualify as CBI and thus must be disclosed under the UIPA.

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