For nearly 20 years, Hawaii police officers who were suspended for misconduct have been able to hide behind an exemption in the state’s public records law that prevents officials from releasing their names and details of disciplinary actions.
The public also has been prohibited from finding out whether police officials are handling discipline properly, whether it’s effective, and whether the public safety is being compromised. Even cops who have committed serious crimes have been allowed to remain anonymous.
But on Monday, in a case brought by Civil Beat, Hawaii Circuit Court Judge Karl Sakamoto ruled that police cannot be above the law when it comes to disclosure of their misconduct.
Sakamoto said police officers have no right to privacy when it comes to getting in trouble. The judge also reaffirmed the public’s interest in scrutinizing government officials, especially those with a badge.
The case stems from Civil Beat’s investigative series, In The Name Of The Law, which examined police misconduct and the secrecy surrounding it.
As a follow-up to the series, Civil Beat requested the disciplinary files of 12 Honolulu police officers who had been suspended for serious misconduct between 2003 and 2012. Under state law, the records of cops who have been fired are public, but not in cases that fall short of termination including when a union grievance process succeeds in preventing an officer from losing his job or if someone resigns or retires.
Each of the 12 officers had been suspended for more than 20 days for acts ranging from beating up citizens and assaulting co-workers to drunken driving and falsifying police reports.
HPD, the city of Honolulu and the state police union — the State of Hawaii Organization of Police Officers — joined forces to oppose Civil Beat’s request.
Whether police disciplinary records should be made public has been a point of contention in Hawaii for nearly two decades.
In the mid-1990s a group of University of Hawaii journalism students asked for the names of HPD officers who had been suspended or discharged for misconduct.
This set up a tense legal stand-off between the students, HPD, the City and County of Honolulu, and SHOPO. The students wanted the records, the police, the city and the union said no.
The Hawaii Supreme Court eventually sided with the students, specifically finding that police officers don’t have a constitutional right to privacy when it comes to misconduct and disciplinary proceedings.
But that decision was effectively undermined when lawmakers at the urging of SHOPO inserted an exemption in the public records law that required public disclosure only in the cases of discharged officers. The exemption only applied to cops; disciplinary action against all other public employees is public information.
During Monday’s proceedings, SHOPO attorney Keani Alapa argued that Civil Beat’s case should be dismissed because the Legislature had already weighed the public’s interest when exempting suspended officers from having their names released.
Alapa, a former HPD officer, said that releasing the information would do little more than result in suspended officer being “paraded in the media” and “subjected to scorn and retaliation.”
“Civil Beat paints the false picture of a secret police department that’s out there violating civil rights and pushing for total secrecy,” Alapa said. “That’s not the case.”
City attorney Duane Pang spoke only briefly, and said the city and police department were simply following a ruling from a 2001 case. He indicated after the hearing that the city will abide by whatever the court ordered.
Civil Beat attorney Brian Black argued that the public has a right to know about police misconduct even if it doesn’t result in termination. The public records act requires the right to privacy be balanced against the public interest, he said.
“The key question really distills down to what is the primary purpose of the UIPA,” Black said. “Is the primary purpose open government or confidentiality?”
Sakamoto, who ruled from the bench after about an hour of arguments, came down strongly on the side of open government in his decision.
He too cited the state’s public records law — the Uniform Information Practices Act — and quoted from its preamble that “the people are vested with the ultimate decision-making power” and that “opening up the government processes to public scrutiny and participation is the only viable and reasonable method of protecting the public’s interest.”
Sakamoto made clear he was basing his ruling on the 1996 Hawaii Supreme Court decision that found police officers didn’t have a right to privacy when it comes to misconduct.
Sakamoto also pointed to a 1997 opinion from the Office of Information Practices that states the public’s right to know about officer misconduct outweighs any perceived privacy interest.
Monday’s ruling means HPD will have to release the names of the 12 officers along with details about their suspensions. SHOPO attorneys said a decision on whether to appeal had not been made.
But the judge’s order should also set a precedent for future requests for information about suspended police officers.
Black said after Monday’s hearing that the ruling applies to all county police departments because it’s based on a Supreme Court decision.
“It’s the first step in a very good direction,” Black said. “I hope SHOPO will agree with the court and let HPD release the records.”
Black said it will take about a month for the judge’s order to become final. Then it will be a matter of whether or not SHOPO will appeal the ruling, which could prevent the records from being released pending the appeal.
SHOPO attorney Vladimir Devens said after the hearing that he did not want to comment until first talking to his client. SHOPO President Tenari Ma’afala didn’t return a call from Civil Beat on Monday.
Civil Beat publisher Pierre Omidyar decided to fund the nonprofit law center in large part because of the police department’s refusal to allow the public to learn about misconduct and judge for themselves whether police should be allowed to carry a badge and a gun after being disciplined for serious misconduct.
The center, which is open to all journalists, other nonprofits and citizens, is set up to help people gain access to public information and hold government accountable. The center provides advice and assistance, including following through with litigation at no cost to the public.