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When it comes to timely release of public records in Hawaii, sometimes even winning is losing.
Last October, District Court Judge Virginia Crandall ruled in favor of Civil Beat and the city, and against the state police union, in a records dispute. It appeared to settle a case that had already dragged on for well over a year, but then Crandall granted a union motion to keep the records sealed pending an appeal.
As a result, a seemingly simple request made by Civil Beat for the names, ranks and salaries of about 2,000 sworn officers in the Honolulu Police Department still has not been fulfilled — and won’t be for many months to come.
By then, Civil Beat will have made a new round of requests to all levels of Hawaii government for information it publishes in its biennial public employee salary database on the premise that the public has a right to know who and what it pays to run things in the islands.
The requests are made at the beginning of every odd-numbered fiscal year in July. Almost every other department in the state and county governments responded quickly last time around, and as a result tens of thousands of public employees are listed in our current database.
Here’s the portal to the information as it stood as of the beginning of the 2018 fiscal year on July 1, 2017 — minus Honolulu cops:
The HPD tried to respond to Civil Beat in a timely fashion as well, but was blocked by a legal challenge from the State of Hawaii Organization of Police Officers filed in September 2017.
While everyone agrees that current undercover officers should be exempted from the database disclosure, SHOPO argued that the department should withhold the names of all officers who had ever worked undercover, even if they were now openly serving as uniformed or plainclothes cops. HPD said it planned to withhold only the names of current undercover officers.
In her October ruling, Crandall noted the HPD said it “conducted a case-by-case assessment to assure that each police officer that is identified on the roster is performing normal or regular police duties.”
“The plaintiff did not meet its burden of proof to show irreparable harm or that the disclosure of the roster would constitute clearly unwarranted invasion of the personal privacy of the police officer,” Crandall said.
The judge added that SHOPO “has not made a showing that disclosure of the roster would place any officer on the roster in jeopardy,” and she rejected the idea that former undercover cops now working openly for HPD should not be identified publicly as cops.
“The privacy right of not being identified as a police officer sort of diminishes when a police officer gets back on duty, appears in court, testifies — testifies in open court, appears in public forums,” Corporation Counsel attorney Duane Pang argued for the city in court.
In its motion seeking a stay of the judgment pending its appeal, SHOPO said the city had done an inadequate job of considering which officers should not be identified. It even contended that it would be reasonable for the city not to publicly identify any of its officers by name, since it could still supply their ranks and salaries to Civil Beat.
Pang argued that citizens have the right to know who their police officers are, as well as what they’re paid.
“The public’s right to know what type of individual is wearing a uniform, has this awesome power, clearly outweighs the privacy interest,” Pang said.
Mostly the dispute centers on the definition of “undercover.” For instance, in support of the union’s motion to stay Crandall’s decision pending appeal, SHOPO attorney Keani Alapa claimed during a Nov. 28 hearing that the roster the city intended to release to Civil Beat included nine officers “who are currently working in the undercover capacity.”
“This undercover work includes using fictitious names on driver’s licenses and vehicle registrations,” Alapa said.
“Those nine may perform duties not in uniform, but they do regular police duties,” responded Pang for the city. “They are issued badges. They are issued police identities. They testify in court. They are not restricted in their use of Facebook and internet pages whereby they may identify themselves as police officers.”
In fact, Pang said, the identities of true undercover officers should be unknown even to SHOPO.
“We, HPD, can’t provide undercover officers’ identities to SHOPO or anybody,” Pang said.
Attorney Brian Black, representing Civil Beat, reiterated the point: “If SHOPO knows who these individuals are then they’re not undercover.”
Alapa responded: “SHOPO consists of all police officers from the lowest ranks up to lieutenant, and that includes undercover officers.”
At the November hearing’s conclusion, Crandall said that “the public interest in protecting the safety and well-being of the police officers, Honolulu’s finest, outweighs the public interest in the disclosure of the specific names while the case is on appeal.”
Crandall, who has since retired, added that until the appeal is resolved the entire roster of HPD police officers must remain sealed.
Now all sides are preparing written briefs for the Intermediate Court of Appeals. It’s also possible one of the parties could move to transfer the case directly to the Hawaii Supreme Court.
Either way, Black estimated it’ll be another six months or more before the appeal is resolved.
Whatever court gets the case next will also consider Civil Beat’s appeal of Crandall’s ruling that SHOPO had legal standing to challenge the release of the officers’ names in the first place.
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