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Civil Beat on Thursday filed suit against the Honolulu Police Department over the agency’s refusal to release the names of police officers who have been disciplined for serious misconduct.
As a follow-up to Civil Beat’s investigative series published earlier this year, “In The Name Of The Law,” Civil Beat asked to see records relating to 12 officers who the police department says were found to have engaged in serious misconduct, including assaults on citizens, drunken driving, lying to investigators and beating up a co-worker. At least one had been convicted of a crime.
None of the officers were fired, and HPD has refused to release any information contained in their disciplinary files except for a short summary of the incidents along with the number of days the officers were suspended.
Civil Beat believes the information should be public under the state’s public records law, the Uniform Information Practices Act.
“The police have extraordinary power over the lives of ordinary citizens,” said Civil Beat Editor Patti Epler. “The public should be able to independently check on how police officers are behaving and how police officials are dealing with bad behavior. Courts in Hawaii have regularly come down on the public’s side on these things.”
The lawsuit seeks to force the city and HPD to release the records. Civil Beat is also asking for attorney’s fees and other expenses related to the lawsuit.
HPD Spokeswoman Teresa Bell said her department does not comment on pending litigation.
The city is also named in the lawsuit but a city spokesman had no comment on Thursday.
Civil Beat is represented by The Civil Beat Law Center for the Public Interest. The nonprofit law center was launched in August and is funded by Pierre Omidyar, Civil Beat’s publisher.
Brian Black, executive director of the law center, said the Hawaii Office of Information Practices has made clear that the public has a right to know about police officer misconduct, but that police agencies including HPD have been relying on a flawed court ruling to withhold this information.
“The lawsuit is intended to clarify the law here,” Black said. “There’s conflicting orders from different time periods and it will be much better if everyone is on the same page with what the law means. I think the lawsuit is clarifying the way that the law should be read in that these records are discloseable.”
On Oct. 4, Civil Beat asked HPD for information regarding 12 officers who had been suspended for 20 days or more as indicated in annual misconduct reports that departments are required to submit to the Legislature.
Specifically, Civil Beat wanted the names of the 12 police officers, a summary of the allegations against them, any findings of fact and the final disciplinary action taken by HPD after union grievance proceedings were completed.
The department denied the public records request Oct. 15, saying that releasing that information would be a “clearly unwarranted invasion of personal privacy.”
Under the state’s public records law the names of police officers discharged for misconduct must be released along with details about their wrongdoing. But the agencies have argued that the Legislature exempted from disclosure names of officers who have been suspended along with details of the incidents.
Disciplinary records for all other public employees, including suspensions, must be disclosed under the UIPA.
The Office of Information Practices — which oversees and interprets the state’s public records law — has said the police exemption is not absolute.
In a February 1997 opinion, OIP found that citizens have a fundamental right to know about police misconduct, and that any privacy interest must be weighed against the public’s right to know.
But in 2001, five anonymous police officers asked the court for a ruling preventing the city and HPD from releasing information about their disciplinary suspensions.
Hawaii Circuit Court Judge Dan Kochi sided with the officers, saying misconduct information can be released only when the punishment results in discharge.
Black called that decision “procedurally deficient,” however, because OIP was never informed about the litigation and therefore not allowed to intervene or defend its 1997 opinion.
“In the end, I think that order is just wrong,” Black said. “I don’t believe that OIP was aware of that action in 2001. They should have been given notice of it, according to statute, and they should have had the opportunity to intervene.”
Since then, the city and HPD have ignored OIP’s 1997 opinion even though the state agency believes its decision is correct.
Black also argues in the lawsuit that the public interest far outweighs any privacy interest for police officers who commit egregious acts, such as lying to federal investigators, falsifying reports and improper use of force.
“Such conduct raises manifest concerns about, among other things, public safety, civil rights, Defendants’ proper administration of government services, and the administration of justice in Hawaii,” Black said in the lawsuit. “All individuals identified in the October 4, 2013 request were serious offenders suspended for twenty days or more; the minimum discipline for the most egregious violations of HPD Standards of Conduct is only a five-day suspension.”
Civil Beat’s lawsuit resurrects a decades-old fight over releasing the names of police officers who are found guilty of criminal acts and other forms of misconduct resulting in disciplinary action.
In mid-1990s, University of Hawaii students squared off with the HPD, the State of Hawaii Organization of Police Officers (SHOPO) and the city over the release of information including names of officers who were suspended or discharged for misconduct.
The Hawaii Supreme Court eventually sided with the college journalists, who were backed by a local First Amendment attorney, the Society of Professional Journalists and the Office of Information Practices.
But the union used its power and influence at the Legislature to convince lawmakers to nullify the ruling and insert an exemption for suspended cops.
A bill that would have required more disclosure of police misconduct passed the Senate earlier this year but died in the House.