If a police officer abuses his authority, violates police conduct standards or engages in criminal activity, should police disciplinary records related to the officer’s actions be a matter of public record? Should the officer’s identity be disclosed, as well?
And it is also our legal position in a case heard last Thursday by the state Supreme Court. It’s a position that Hawaii Circuit Court Judge Karl Sakamoto supported in 2014, but one that the State of Hawaii Organization of Police Officers (SHOPO) — the police union — adamantly opposes, hence its appeal of Sakamoto’s ruling to the high court.
Honolulu police make an arrest in Kaimuki.
PF Bentley/Honolulu Civil Beat
As Civil Beat reporter Nick Grube has reported, Civil Beat first sued in 2013 to get disciplinary records related to 12 officers who each received suspensions of at least 20 days between 2003 and 2012. These were not punishments for small matters. To the contrary, as Civil Beat’s suit details, they involved “assaults, falsification of records or obstruction of an investigation, hit-and-runs, or other unspecified criminal conduct.” We sought the records under the state Uniform Information Practices Act (UIPA), Hawaii’s public records law.
Sakamoto’s ruling found no privacy interest sufficient to outweigh the public’s right to know the facts of these cases. Notably, neither the City of Honolulu nor Honolulu Police Department, the parties named in the lawsuit, appealed the decision. SHOPO, which was not a party in the original suit but successfully petitioned to intervene, appealed the ruling itself.
The police union argued Thursday that an exemption to UIPA — an exemption that SHOPO successfully advocated for in 1995 — prevents the disclosure of such records. In fact, it is that exemption that county police departments currently point to in routinely withholding disciplinary records from public disclosure.
Departments annually summarize misconduct incidents in reports to the Legislature, and those reports are adequate to show that the departments are “acting appropriately,” SHOPO argued.
But the extent of those departments’ disclosures are brief, often cloudy summaries that provide scant detail, sometimes shrouding in gauzy language what Brian Black, executive director of the Civil Beat Law Center for the Public Interest, rightfully describes as “outrageous conduct.”
“The public … is entitled to know more about, for example, the incident and subsequent investigation of a police officer suspended for 20 days for having ‘[p]led guilty to criminal charges’ or another officer suspended 626 days because the officer ‘[h]indered a federal investigation,’” writes Black in the suit.
More to the point, Black argues that a 1996 decision of the Hawaii Supreme Court as well as opinions from the state Office of Information Practices and two Circuit Court judges “have held that the public interest in access to police disciplinary suspensions outweighs any officer’s privacy interest.”
Though justices seemed sympathetic to the need to balance the public’s right to know against police officers’ right to privacy, they seemed appropriately skeptical of the idea that in serious disciplinary matters, neither the officers’ identity or the nature of their offenses should be kept confidential.
“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.
The Hawaii Supreme Court has an opportunity here to set a significant precedent in matters regarding police misconduct and the public’s right to know.
We couldn’t agree more wholeheartedly. Police conduct and oversight need more transparency in Hawaii, not less.
Misconduct cases over the past year, including cases in which officers have been caught on video slamming a man to the ground who was not arrested or charged with a crime and repeatedly punching a woman in a restaurant, have illustrated how difficult it is to hold officers accountable for such infractions, even armed with overwhelming proof. Neither of those officers was charged with a crime.
If government employees in any of the instances cited above were not police, there is no question that their disciplinary records would be made public — that’s the law in Hawaii.
Police conduct should be handled no differently. In fact, as Justice Nakayama intimated, when government employees are afforded extraordinary powers and placed in positions that give them singular authority over their fellow citizens, our expectations regarding their conduct should be even higher and the transparency regarding infractions crystal clear.
The Hawaii Supreme Court is expected to issue its ruling later this year. It has an opportunity here to set a significant precedent in this matter, building on its 1996 decision regarding police conduct and privacy concerns regarding disclosure of disciplinary records.
It also has the chance to make certain that records from these cases are handled with the same philosophy that legislators had in mind when they passed the UIPA 27 years ago — the idea that the business of the state “shall be conducted as openly as possible.”
That’s a philosophy that is essential to our democracy, and we urge the court to give it the regard that it so appropriately deserves.
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