In 1995, the Hawaii Legislature passed a bill that made secret the names of county police officers who had been suspended for misconduct.

Less than two years later, the Hawaii Office of Information Practices wrote a formal opinion that undercut that law, saying the public has a fundamental right know about cops who were getting in trouble. OIP said the public’s right to know must be balanced against the right to privacy, citing a 1996 Hawaii Supreme Court decision.

In that decision, justices sided with a group of students who were challenging the Honolulu Police Department and the state police union for access to this very information.

Since OIP’s 1997 opinion, however, little has been done to challenge the police over their policy of keeping information about suspended cops confidential, even if some of those officers had been convicted of crimes.

Civil Beat twice asked the Honolulu Police Department for the names of officers who have been suspended as part of a six-month investigation into police misconduct. Both times HPD rejected our request, citing the 1995 public records exemption.

But officials with OIP say HPD and other police departments are wrong to withhold the information. They say the agency’s 1997 opinion still holds up.

“It’s still good,” OIP Executive Director Cheryl Kakazu Park said of her agency’s 14-year-old opinion. “That hasn’t been overturned by the courts or by us.”

The OIP opinion was issued at the end of a lengthy battle over public records in Hawaii.

In 1993, a group of journalism students wanted information about Honolulu police officers who had been suspended or discharged for misconduct. At the time, Hawaii’s public records law deemed the information to be public. HPD and the city sided with the state’s powerful police union — the State of Hawaii Organization of Police Officers (SHOPO) — to argue otherwise.

The stalemate went to the Hawaii Supreme Court, where the students ultimately prevailed. But by the time the ruling came out the decision had been effectively undermined by the Legislature.

In 1995, the Legislature changed the law to protect suspended officers from having to reveal information about their misconduct. Police officers, lawmakers said, had a certain right to privacy when it came to the release of misconduct records. The Legislature still required the names of discharged officers to be released along with the details about their misconduct, but not the names of cops who had been suspended. The change in the law afforded county police officers an exemption to disclosure laws that no other public employee has.

Lawmakers also required an annual report of police misconduct to be submitted to the Legislature by each county department that briefly describes the incidents in which officers were suspended or discharged. Those reports don’t include names, dates or locations of incidents. The descriptions are also so vague as to leave the public in the dark about what actually took place.

But in December 1996, Honolulu Deputy Corporation Counsel Diane Kawauchi asked OIP to help her resolve the competing interests of the 1995 law and the 1996 Supreme Court decision.

Was she supposed to release information about suspended police officers or not?

Kawauchi’s answer came on Feb. 21, 1997. The names of suspended police officers should be released along with other information related to the circumstances surrounding the misconduct, including the allegations and any findings of fact.

OIP attorney Lorna Aratani wrote the opinion, outlining her agency’s argument. She said the 1995 exemption for police officers didn’t stand up to the “balancing test,” one of the central tenets of Hawaii’s public records law, the Uniform Information Practices Act.

Arataini said any legislative finding that police officers had a “significant privacy interest” in keeping their misdeeds under wraps needed to be weighed against the public interest in disclosure.

The Supreme Court’s 1996 decision bolstered the equation in favor of public disclosure, she said, because it found that information about officer misconduct “is neither highly intimate nor personal” and as a result wasn’t protected under privacy rights in the Hawaii Constitution.

Even though the Legislature tried to tilt the scales toward keeping officer misdeeds private, Aratani said the Supreme Court’s ruling “tips the balancing heavily toward finding that the public has a strong counterveiling interest in information about suspended police officers.”

Now, lawmakers are considering a bill that could make more information about police misconduct publicly available. But the 1997 OIP opinion hasn’t been part of the discussion.

OIP cannot force a government entity to release public records even it says the documents should be made available.

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