The Hawaii Supreme Court ruled Thursday that Honolulu police officers don’t have an absolute right of confidentiality regarding their disciplinary suspension records, and that their privacy interests should be weighed against the public interest in determining whether to release their names and details of their misconduct.

The decision came three years after the online publication Honolulu Civil Beat, represented by attorney Brian Black of the Civil Beat Law Center for the Public Interest, filed a lawsuit seeking the names of 12 officers who were suspended for at least 20 days for issues ranging from falsifying police reports to assault.

The city and the local police union, the State of Hawaii Organization of Police Officers, defended the secrecy, contending that providing the information would invade officers’ privacy. Civil Beat argued the officers didn’t have a privacy interest in their disciplinary suspension records.

Circuit Court Judge Karl Sakamoto ruled in Civil Beat’s favor in 2014 and called for the release of the records. The city was willing to let that decision stand, but SHOPO appealed the case to the state Supreme Court.

Neither side won an outright victory Thursday. The justices vacated Sakamoto’s decision and sent the case back to him to review the records and determine whether the public interest in releasing them outweighs officers’ privacy concerns.

Honolulu Police Dept shoulder patch1

Hawaii has struggled for years to enact meaningful police reform.

Cory Lum/Civil Beat

Instead of siding entirely with either Civil Beat or SHOPO, the justices concluded that state law “requires a weighing of the individual’s ‘significant privacy interest’ against the public interest in disclosure.”

“The records requested by Civil Beat here involve cases of serious misconduct that reasonably could call into question the police officers’ trustworthiness or fitness to perform their public duties,” Chief Justice Mark Recktenwald wrote in the majority opinion. “However, we cannot determine whether disclosure is appropriate given the limited factual record in this case. We therefore vacate the circuit court’s judgment and remand to that court so it can review the records to determine whether the public interest outweighs the officers’ significant privacy interests.”

The majority opinion was also signed by Paula Nakayama, Michael Wilson and Jeffrey Crabtree. Justice Richard Pollack wrote a concurring opinion.

“Public oversight minimizes the possibility of abuse by ensuring that police departments and officers are held accountable for their actions.” — Chief Justice Mark Recktenwald

Vladimir Devens, a SHOPO attorney, said he doesn’t view the ruling as a victory or a loss.

“We’re looking it as a legal issue,” Devens said. “We want to abide by the law. … Whatever the court tells us as the way (the law is) supposed to be read, that’s what we’re going to follow.”

Attorney Keani Alapa, who presented oral arguments on behalf of the police union, noted that the decision recognizes that officers do have a significant privacy interest in their disciplinary suspension records.

But Black from the Civil Beat Law Center said that he believes the Supreme Court’s decision will result in greater transparency because it rejected the idea that disciplinary suspension records are uniformly confidential.

“This decision at a minimum reverses 15 years of HPD practice to withhold any information about disciplinary suspensions,” Black said. “That’s a huge step for public access.”

Guidance For Lower Court

The Supreme Court’s decision to remand the case to a lower court left open the question of how much information will be divulged to the public. But the majority opinion gave the Circuit Court some guidance as to what should and shouldn’t be revealed.

“If the interests weigh in favor of disclosure of a record, the court should also determine whether any redaction is necessary, such as to remove identifying information of the victim of a crime,” Recktenwald wrote. “Moreover, there is no compelling public interest in the disclosure of police officers’ confidential personal information such as home addresses, dates of birth, social security numbers, driver’s license numbers, and bank account information. Such information, if present in relevant records, must be redacted.”

Recktenwald devoted several paragraphs to cases that recognize the compelling public interest to reveal police misconduct to facilitate public oversight of law enforcement.

Hawaii Supreme Court Chief Justice Mark Recktenwald raises questions during Hawaii State Supreme Court case involving Civil Beat's request to the HPD for records relating to disciplinary suspensions between 2003 and 2012. HPD is seeking an order requiring HPD to disclose the disciplanary suspension records. 18 june 2015. photograph Cory Lum/Civil Beat

Hawaii Supreme Court Chief Justice Mark Recktenwald noted the seriousness of the misconduct cases involved in the lawsuit.

Cory Lum/Civil Beat

“Police officers are entrusted with the right to use force — even deadly force in some circumstances — and this right can be subject to abuse,” Recktenwald wrote. “Public oversight minimizes the possibility of abuse by ensuring that police departments and officers are held accountable for their actions. The press’s access to records such as those at issue here is one of the primary channels through which such public oversight can operate. The more egregious the misconduct, and the more closely connected to the officer’s performance of his or her duties as an officer, the more compelling this public interest.”

The justices determined it was clear that the records Civil Beat is seeking involve serious misconduct, and described two of the records — a 77-day suspension for falsifying a police report and a 626-day suspension for hindering a federal investigation — as “particularly egregious.”

That might provide a basis for Sakamoto to reveal at least some of the records. But it will likely be months before he will make a decision about what information will or not be divulged and any future ruling could also be subject to appeal.

Potential For Legislative Reform

Civil Beat’s lawsuit seeking access to the police misconduct records was prompted by a 2013 investigation that revealed nearly once a week, on average, a Honolulu police officer is disciplined for misconduct.

The investigation found the details of that bad behavior are never publicly revealed, despite the fact that more than a quarter of those incidents can be classified as criminal behavior, such as domestic violence.

The secrecy is due largely to an exemption to the state’s open records law passed by the Legislature in 1995 that protects some officer misconduct information. Instead of providing details of misconduct, the Honolulu Police Department sends annual summaries that provide little insight into what officers did wrong.

Sen. Will Espero has pushed for increasing public access to police disciplinary records in recent years, with limited success.

Senator Will Espero during a Hawaii Medical Marijuana Dispensary Task Force meeting at the Hawaii State Capitol on September 9, 2014.

State Sen. Will Espero has been a strong proponent of police reform at the Legislature.

PF Bentley/Civil Beat

Espero said Thursday he’s disappointed that Civil Beat didn’t win the release of the records outright but thinks the court’s decision is generally a “positive ruling for transparency.”

He plans to sponsor another bill next year aimed at increasing public access to police disciplinary records in light of the Supreme Court’s ruling.

Espero said it’s an issue of accountability given that police officers are being paid with tax dollars.

“We’re talking about serious allegations that are criminal in nature, and that information needs to be public,” he said.

Click here to see Civil Beat’s database of police misconduct.

Read the state Supreme Court opinions below:

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