Part 2 of a 5-part series
On March 29, 1994, nearly 500 police officers staged a show of force at the state courthouse in downtown Honolulu the likes of which hadn’t been seen in the islands before or since.
The huge demonstration was meant to intimidate a handful of University of Hawaii journalism students who wanted to know the names of Honolulu police officers who had been suspended or discharged for misconduct.
Patrol cars took up every parking space around the building, and officers packed into shuttles running between the Blaisdell Center parking lot and Punchbowl Street.
Not only were the students already entitled to the information under the state’s public records law, but a Circuit Court judge and the Hawaii Supreme Court would later rule that the public has a “fundamental” right to know that police power is being kept in check.
Still, Hawaii’s police union worked alongside the Honolulu Police Department and the city to keep information on police misconduct out of the public’s hands.
The UH students’ inquiry triggered a three-year legal battle over government transparency that today continues to leave the public in the dark about officer wrongdoing.
The case also galvanized the State of Hawaii Organization of Police Officers (SHOPO), which used the threat against its rank and file to build its political muscle. Even now, SHOPO remains one of the most influential political organizations in the state.
Civil Beat tried numerous times over the past six months to interview SHOPO officials. None would agree to an interview and didn’t return more recent calls asking again for an interview.
Honolulu media attorney Jeff Portnoy, one of Hawaii’s top First Amendment lawyers, took the students’ case pro bono.
He can still vividly describe the scene, especially the fleet of police cars double-parked around the courthouse. He had trouble even getting into the building, there were so many cops — many of them armed and in uniform — crowding the sidewalks and steps.
Hundreds of officers waved placards, denouncing the state’s public records law and seeking sympathy for police officers against the students. “Cops Are Human Just Like You.” “Discipline Police Officers Not Their Families.”
Inside the courthouse, officers flooded the hallways and packed the courtroom with their families.
“That whole day is just surreal,” Portnoy said. “At the time I was shocked, scared, nervous. Anybody who wouldn’t would have been lobotomized.”
What eventually became a milestone in Portnoy’s career began on the whim of a college kid.
Jahan Byrne was a student at the University of Hawaii in 1993, and the treasurer of the Society of Professional Journalists-UH Chapter. Byrne had also been an editor at the student newspaper.
Even as a student, Byrne had a reputation for making records requests that rankled public officials. Part of this was family influence. His dad, Desmond Byrne, was the head of Common Cause Hawaii and a well-known advocate for more openness in government.
This time, Jahan Byrne wanted to test Hawaii’s fledgling public records law. The Uniform Information Practices Act had only been in place since 1989 and was still being fine-tuned. Byrne had his eye on recent amendments that distinguished misconduct by on-duty police officers from misconduct while off duty.
Byrne sent his records request to HPD Police Chief Michael Nakamura on Aug. 30, 1993 — a single page written on SPJ letterhead.
He asked for the names and titles of all HPD employees who had been suspended or discharged since Jan. 1, 1988. He also wanted to know the nature of the misconduct for each employee, the department’s summary of the allegations and findings of fact as well as the type of disciplinary action taken.
“We also understand that this request will not result in the disclosure of HPD officers who were suspended or discharged as a result of misconduct that occurred while they were not acting in the capacity of a police officer,” Byrne wrote. “However, we would like your clarification as to whether your department considers police officers who are working on special duty assignment to be simultaneously working in the capacity of a police officer.”
Byrne wanted to see what sort of check the public records law provided over the power of the police, even those working private jobs or other special assignments. He told The Honolulu Advertiser in February 1994 that he targeted HPD because he felt it was “the most secretive” organization and that the unions were “recalcitrant” about releasing any information about officer misconduct.
“And that automatically raises a suspicion,” he said, “most likely an unfounded one, but certainly a suspicion.”
HPD initially responded that it didn’t maintain the specific records SPJ wanted. And it warned that the public records request would carry a tremendous cost.
In a letter to Byrne, Nakamura said someone would have to manually search through each employee file to “compile and collate” the information. With more than 2,000 files to dig through, he said, HPD would need to charge “a reasonable research fee” to cover the cost.
The fee estimated by HPD’s legal department? $20,000.
UH journalism professor Gerald Kato was the advisor to the SPJ students at the time. He says now he believed the exorbitant amount was just a tactic to get the students to drop the issue.
“They were doing everything possible to fight the release of the information,” Kato told Civil Beat in a recent interview. “This happened to be a request that we thought would be fairly routine, but it turned into a three-year fight. I think part of the problem was that as everything went on, everyone started to dig in their heels.”
The students took the matter to the Office of Information Practices, the agency charged with enforcing the UIPA. Officials from OIP told Nakamura to release the records and rejected the $20,000 fee.
Nakamura finally gave in and agreed to give up the records. But not before he tipped off SHOPO president Bennie Atkinson, then an HPD lieutenant, that the disciplinary files of the four officers would be made public on Feb. 11, 1994.
On Feb. 10, SHOPO went to court seeking a restraining order to prevent their release. Among other things, SHOPO claimed the release violated its collective bargaining agreement with the state and that the union contract should trump the public records law.
The ensuing legal showdown drew a lot of media attention, both locally and on the mainland. A small group of college kids was taking on a powerful, statewide union. While SHOPO raised money for the fight through membership dues, the students hosted chili feeds and hoped for donations.
In late February, less than two weeks after the union went to court, SHOPO kicked the challenge up another notch. The union’s business manager, Michael Joy, sent in his own public records request, this one to the university.
Joy wanted personal information about the students working at the school’s newspaper, Ka Leo — their names, addresses and phone numbers, even their grade point averages and details about their financial aid.
Although Joy contended the union was simply testing the limits of the law — similar to what the students were doing with HPD — others believed it was a more menacing act. SHOPO was lambasted for trying to intimidate the young college journalists.
Portnoy publicly berated the union for trying to scare the students. He felt it was simply a way to get them — and him — to back off.
“I mean what’s next?” Portnoy said in a 1994 Honolulu Star-Bulletin article. “Are the people who are involved in the student chapter going to have to worry about mysterious traffic stops or tail lights that aren’t working? This is incredible.”
The SPJ student chapter demanded SHOPO retract its records request as did the Star-Bulletin editorial board.
The newspaper noted that the disciplinary records the students were seeking were related to public trust and accountability. The police union, on the other hand, should “abandon its juvenile behavior and strive to rise to the level of maturity exhibited by the students.”
Eventually, the university gave SHOPO a list of students working at Ka Leo, already published in the paper, but little more.
But the UH students still had an uphill battle when it came to convincing the public that releasing information on police misdeeds was important.
Kato says now the young journalists didn’t quite realize they were up against a politically popular group with a lot of public respect. Police officers are easy to sympathize with because they have a tough job, he said.
“And this is a small community, too, in that sense,” Kato said. “A lot of people know police officers, are related to police officers or went to school with police officers. Lord knows, I went to school with police officers.
“Our effort to disclose (disciplinary) information was not a reflection of our belief that police officers should be disrespected. But it is our respect for the good officers that we believed that there should be a greater transparency about what’s going on with disciplining the bad ones.”
For SHOPO, the release of officers’ personnel information — even if it involved substantiated police misconduct — was a matter of privacy.
In a March 1994 newsletter to the union membership, SHOPO President Bennie Atkinson vowed that SHOPO would “do whatever it takes to keep your name from being disclosed in the media.”
“We accept the complaints, the investigations of our conduct, the lawsuits, the injuries and abuse and all the other problems that come with being a cop,” Atkinson wrote. “We endure because we love this job, we love catching crooks, helping people, investigating crime, taking responsibility, and making split second decisions.
“When the shooting starts, the fight breaks out, the burglar is breaking in, when everyone is running away from the trouble, we are the only ones running toward it,” he added. “But now when you have been suspended or fired from your job, that’s not enough, now they want to punish your children, your wife or husband, your mother and father, all your family and friends and that’s the real issue that the Union is fighting.”
SHOPO has long maintained that police have a significant privacy interest. The union zealously guards that privacy right, spelling it out in its collective bargaining agreement and arguing in court that that’s why its union contract should prevail over the public records law. That argument was specifically rejected by the Hawaii Supreme Court.
SHOPO also continued to downplay the seriousness of officer misconduct in its legal challenge. It signed up four anonymous HPD officers who had been disciplined to join the lawsuit, contending they had a real stake in the matter. An affidavit filed by a union attorney touted the officers’ exemplary service records, commendations and community service while acknowledging they had each received three- to five-day suspensions.
But what they did to warrant those suspensions was never revealed.
The Hawaii Office of Information Practices also waded into the legal proceedings on the side of the students.
Honolulu attorney Hugh Jones represented OIP at the time. He’s now a deputy attorney general, with the tax and charities division of the state.
Jones says OIP was still trying to find its footing in the early 1990s. It was a new agency and there were many questions about how the UIPA should be applied to government agencies.
“We didn’t really have an agenda,” Jones said. “We just tried to defend what was clear in the law and where it wasn’t clear we consulted the governor’s committee reports, the legislative committee reports for the law itself and the case law from other jurisdictions.”
In the case of police discipline, Jones said the law was straightforward. OIP found that information the students sought about suspensions and discharges should have been released.
OIP argued that public oversight of how the police handle misconduct was important in order to ensure the integrity of the disciplinary process.
Jones pointed out the same officer could be getting suspended over and over again for similar types of offenses, something people should know.
“I think the example we used at the time was an officer pulling a woman over at night and then engaging in abusive behavior with her,” he said “How is that woman to know the next time she’s pulled over by the same officer she’s not a target?”
March 29, 1994. Like Portnoy, the day is seared into Jones’ memory. He too needed an escort to get into the courthouse because there were so many officers crowded around the building.
But it was the next day, March 30, when the judge’s decision in the case came down that Jones calls “very moving.”
Circuit Court Judge John Lim stared down from the bench at a room full of police officers and their families. He spoke of the founding fathers and the revolutionaries who fought to forge the United States, their rebellion based on a mistrust of government that is now instilled in present day society and reflected in the U.S. Constitution. It is “rife with protections against government and its attendant police power,” he said.
“Underlying all of those protections against that government and that police power is the people’s right to know,” Lim said. “How do you exercise your rights against the government unless you know what the government is doing?”
“I have heard the public’s right to know referred to rather dismissingly at certain junctures of this hearing; I think that’s wrong,” Lim added. “I think the public’s right to know is a fundamental interest in our society. It is institutionalized, it is constitutionalized, it is an interest of the first priority.”
Lim’s ruling was a resounding victory for the students, and his remarks from the bench were even published in full on the opinion page of the Star-Bulletin.
Just days after the ruling the union appealed to the Hawaii Supreme Court, locking up release of the records. Eventually, HPD would be forced to turn over more records on more than 60 cops.
The appeal to the state’s highest court dragged on for nearly three more years. In the meantime, Portnoy won the SPJ’s national First Amendment award in 1994 for his work on the case and for his mentoring of the students who were involved.
Eventually, SHOPO and the city were rebuffed again. The five justices unanimously rejected SHOPO’s argument that a union contract would prevail over state law.
In a 61-page ruling, the court said this would lead to an “absurd result.”
“A public employer is not free to bargain with respect to a proposal which would authorize violation of a statute,” the justices said.
“With respect to public records statutes, the virtually unanimous weight of authority holds that an agreement of confidentiality cannot take precedence over a statute mandating disclosure.”
It was yet another victory for the students. But this one was bittersweet.
By the time the court ruled on Nov. 15, 1996, the UH journalism students may have won the battle but they’d already lost the war.
Click here to read all the stories in Civil Beat’s special report, In The Name Of The Law.
Wednesday: The Legislature undermines court rulings