UPDATED 7/30/10 2 p.m.

When a record is expunged, you’d expect it to be erased. But that’s not the case in Hawaii.

Public records of charges that have been expunged can still be accessed at the courts in hard copy. But that could soon change if a new rule is adopted by the Hawaii Supreme Court sealing all expunged records.

Expungement is usually applied to defendants who are first-time offenders and who follow certain conditions. Expungement often follows a “deferred acceptance of guilty” or a “deferred acceptance of no contest” — pleas that allow charges to be dismissed after a period of good behavior and payment of certain fines and fees.

If a person’s record is expunged in Hawaii, it can’t be found online through the state’s database of adult criminal records managed by the Hawaii Criminal Justice Data Center.

But it can be found at the court, if you go to the court and review a paper copy of a person’s record.

If the new rule is adopted, all forms of the expunged record would be sealed.

Changing the Rules

According to Hawaii State Judiciary spokesman Mark Santoki, the rule is being considered in part “to establish consistency” with the criminal justice data center.

“Currently many cases expunged at the Hawaii Criminal Justice Data Center can still be accessed in person at the courts,” Santoki said.

The timing of the proposed rule change coincides with the Judiciary’s expansion of its online database, which is separate from HCJDC’s. Without the rule change, expunged misdemeanor records would be available online when the database starts including criminal misdemeanors in August.

But Hawaii isn’t the only state where expunged records are still public in paper form.

“Expungement if you think about it technically means erasing,” Arturo Castro, an attorney at the Office of the General Counsel for the Judicial Council of California, told Civil Beat. “But in California that’s not actually what happens.”

According to Castro, charges that are expunged in California are still included on an offender’s criminal history and viewable through court public records.

“If I knew the case number and I asked for the public [court] file I could look at the file and see that the case was there,” Castro said. “It’s not fully obliterated in any sense.”

Far from sealing the case — as Hawaii’s rule change would do — the California statute still requires individuals to disclose their convictions “in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.”

Given that there is no similar language in Hawaii law, the proposal would make it possible for individuals with records sealed by the new rule to run for office without the public or the media being able to see their past criminal history.1

Rex Quidilla, spokesperson for the Hawaii State Election Office, said that the office relies on the HCJDC database when conducting background checks of potential candidates.

That leaves it to the media and the public to go to the court and determine if potential public servants have expunged criminal histories.

From a public interest perspective, past criminal records — even expunged ones — can offer important context about any person being considered for public office.

The law does state that if the individual is being considered “for a position immediately and directly affecting the national or state security” the expunged record may be accessed by a federal or state agency.

But if the rule is passed, it would be impossible for the public or Hawaii media to see whether potential political leaders have previously broken the law.

Reinstating a Search Fee

In addition to changing the rule regarding expunged records, the Supreme Court is also considering reinstating a court fee. The $5 fee would apply to non-litigants who request a search of court records without taking the time to look up the case number themselves.

“The fee will only be assessed in situations in which the non-litigant can look up the number but chooses not to,” Santoki said.

People can look up case numbers for certain types of crimes on the Judiciary website, and the courthouse provides computers where people can do so. But if a person goes straight to the clerk’s window without doing that first, then he or she will have to pay $5.

In the case of records that are not available through the Judiciary’s online database, the fee would not apply.

In the past, Civil Beat reported that Hawaii was the only state in the nation that charged a fee to access public court records. When Civil Beat reporter Robert Brown went to review public records, he was told that he would be charged a $5 “search fee” per record. But the Judiciary temporarily suspended this policy in response to Civil Beat’s investigation in 2010.

There is still no fee to view court records.

Submit Your Comment

The Judiciary is encouraging the public to submit their comments on the proposed rules. After receiving public comments, the Supreme Court will make a decision as to whether or not to adopt the rules. See below for the full text of each of the proposed amendments and the procedure for submitting your input.

Judiciary instructions on how to submit comments for Rule 42, “Filing procedure by the Clerk”:

“Comments about the proposed rules should be submitted, in writing, no later than Tuesday September 17, 2012, to the Judiciary Communications & Community Relations Office by mail to 417 South King Street, Honolulu, Hawai`i, 96813, by facsimile to 539-4801, or via the on-line form on the Judiciary’s website at www.courts.state.hi.us.”

Judiciary instructions on how to submit comments for Rule 2.2, “Costs and fees to be collected by the Clerk”:

“Comments about the proposed rules should be submitted, in writing, no later than Tuesday September 18, 2012, to the Judiciary Communications & Community Relations Office by mail to 417 South King Street, Honolulu, Hawai`i, 96813, by facsimile to 539-4801, or via the on-line form on the Judiciary’s website at www.courts.state.hi.us.”

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