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The Hawaii Supreme Court heard arguments Thursday in a case that could have far-reaching implications for police accountability in the Aloha State.
At issue is whether cops who are suspended for serious misconduct, such as assault, drunken driving or lying to investigators, should have their names and disciplinary records released under Hawaii’s public records law.
County police departments currently withhold such information based on an exemption to the Uniform Information Practices Act that was passed by the Legislature in 1995 at the urging of the state’s police union.
The Supreme Court hearing is the latest action in a lawsuit filed by Civil Beat in November 2013 to get access to the disciplinary files of 12 Honolulu police officers who were suspended for more than 20 days without pay between 2003 and 2012.
A Circuit Court judge sided with Civil Beat in the case, finding that the files were a matter of public record and that officers did not have a legitimate privacy interest in keeping their misconduct secret.
But the State of Hawaii Organization of Police Officers appealed the ruling, saying that the Legislature had already decided the matter in 1995 when it changed the law.
SHOPO attorney Keani Alapa argued Thursday that lawmakers made it clear in 1995 that suspended officers should be protected from public scrutiny. Legislators balanced the public’s right to know against an officer’s right to privacy, he said, and found that the officer’s interest prevailed.
“The bottom line is that this is a public policy decision to disclose these records or not,” Alapa said. “In this case the Legislature fact-found, had debates and they determined public policy. And the public policy was that suspension records would not be disclosed because it protected privacy.”
“When we have members of the government who have guns who are authorized to use force against private citizens, how can it not serve the public interest to note the identity of the officers who have been disciplined?” — Hawaii Supreme Court Justice Paula Nakayama
Alapa, who is a former Honolulu police officer, added that summaries of a department’s misconduct cases submitted to the Legislature annually are enough to assure the public that its government is “acting appropriately.”
Those reports provide brief descriptions of all the county police officers who were suspended or fired in a given year. They were required by the Legislature when it approved the exemption for cops in the public records law. Disciplinary files on all other public employees are a matter of public record.
But a Civil Beat investigation found that the summaries do little to shed light on the extent of misconduct by police officiers and whether the department is effectively addressing bad behavior.
The summaries are often are vague and leave the reader guessing as to what really happened. For instance, according to one summary, an officer was fired in 2011 after he “conducted personal business while on duty.” In reality, he had been accused of raping a woman on the hood of his patrol car.
Brian Black, executive director of the Civil Beat Law Center for the Public Interest, argued the case on behalf of Civil Beat. He told the five justices that it was exactly these sorts of cases that make public oversight all the more important.
Black pointed out that the Hawaii Supreme Court already said as much in a 1996 ruling when it found police officers don’t have a significant privacy interest when it comes to matters of misconduct.
“We as a society give police officers the exceptional ability to use force in the name of the law,” Black said. “In return we have a compelling interest in holding police departments accountable when officers violate the public trust by committing egregious and criminal misconduct.”
The court’s ruling could have implications that go well beyond the files of the 12 suspended officers whose misconduct was specifically identified in Civil Beat’s lawsuit.
Several justices asked questions about how their ruling might affect a broader range of cases, including those involving minor misconduct, such as violating a sick leave policy or not showing up to court. They also questioned how the public interest would be served by releasing an officer’s name instead of redacting it from a disciplinary file, something Black said would continue to mask “abuse of the public trust.”
But the justices signaled through their questioning that they clearly understood the role of transparency in government accountability, particularly when it comes to police officers.
“When we have members of the government who have guns who are authorized to use force against private citizens, how can it not serve the public interest to note the identity of the officers who have been disciplined?” Justice Paula Nakayama asked. “It appears to me that the incidents (Civil Beat is) seeking the identities of the police officers for are serious, serious infractions … How can that not be in the public’s interest?”
The justices will likely take several months to issue a ruling or send the case back to the lower court for more work.
Both Black and Alapa declined to comment after Thursday’s proceedings, as did SHOPO President Tenari Maafala, who watched the arguments from the front row.