Opinion Letter No. 05-13
May 23, 2005
Information from Survey Responses
The Department of Business, Economic Development and
Tourism (“DBEDT”) asked OIP whether DBEDT can offer
artists or art companies assurances that their responses to a DBEDT
survey will be confidential and not subject to disclosure under
the Uniform Information Practices Act (Modified), chapter 92F, Hawaii
Revised Statutes (“HRS”) (“UIPA”).
The survey seeks information from artists about topics
that may be commercially sensitive, including (1) the factors most
important to their businesses, (2) the marketing and promotion methods
they use, (3) the transportation methods they use to get products
and services to market and the destinations, (4) annual sales, (5)
percentage of annual sales to county, mainland, and foreign destinations,
(6) number of employees, (7) direct sales broken down by buyer category,
(8) company name and contact information, and (9) other marketing
information the respondent wishes to provide. The artists participating
in the survey will be included in a database DBEDT intends to create
with the responses. DBEDT believes that without assurances of confidentiality,
some respondents may be unwilling to participate in the survey.
OIP concluded that under the UIPA an agency may withhold
commercial or financial information that is voluntarily submitted
to it, to the extent that the submitters themselves do not customarily
release the information to the public, because release of such information
would impair the agency’s ability to get such information
in the future and thus frustrate a legitimate function of the agency.
See Haw. Rev. Stat. 92F-13(3) (1993).
DBEDT may withhold responses to the proposed voluntary
survey under the UIPA’s frustration exception, but only to
the extent that the information submitted is of a kind that would
customarily not be released to the public by the person from whom
it was obtained. DBEDT may not use the frustration exception as
a basis for withholding information that the respondents customarily
release to the public.