House Bill 285 would remove the exemption in the public records law that allows county police officers to keep records of their misconduct secret unless they’ve been fired.
But if you read recent local media coverage of the bill and its journey through the legislative process, you’d think it was only about including cops’ names on annual, sparsely detailed summaries of misconduct that county police departments provide to the Legislature every year at the beginning of session.
That’s just the first line of the bill. The rest of it gets down to the real business at hand, which is to require police agencies to act like any other public agency and disclose information about employees who have been disciplined — specifically suspended or discharged.
Under existing state law — and restated in HB 285 — information in a public employee’s personnel file that is subject to disclosure includes:
the nature of the misconduct
the agency’s summary of the allegations
findings of fact and conclusions of law
the disciplinary action taken by the agency.
And, course, the name of the employee.
Police disciplinary records are needed so the public can check up on the department, not just the officers.
Anthony Quintano/Civil Beat
For more than 20 years, county police agencies have been specifically exempted from this provision by the Legislature.
There’s a much longer back story but basically University of Hawai journalism students won a court ruling that prohibited the Honolulu Police Department from keeping the records confidential. The State of Hawaii Organization of Police Officers appealed and while that was awaiting its day in the Hawaii Supreme Court the police union got the Legislature to grant the cops a special exemption in the public records law.
That was in 1996. At the same time, the Legislature also required the county police departments to submit a summary at the start of every legislative session that listed misconduct incidents, including a brief description and any disciplinary action taken — suspended or discharged.
The summaries were often so thin and innocuous as to be laughable. HPD Officer James Easley, for instance, was fired after a woman accused him of raping her on the hood of his patrol car. The legislative summary chalked it up as “conducting personal business while on duty.”
You get the point.
More recently, the Legislature tweaked the law to require that the summaries disclose more information — but not much more — and make it clear when an officer had multiple disciplinary actions.
But proposals to eliminate the exemption altogether have stalled, year after year.
HB 285 is not a perfect bill. It covers misconduct starting in March 2020, so prior bad acts of an officer would not be known to the public. And we’d never know the circumstances of the numerous appalling misconduct cases that have appeared on legislative summaries for the past two decades.
But it sets to rest one of the chief arguments that SHOPO has been making when it comes to revealing police misconduct. The legislation specifies that a police officer has no “significant privacy interest” when it comes to misconduct and the records on file that detail that misconduct.
That means that the public would have long ago been able to see the HPD’s disciplinary finding in the Cachola case. That would tell us why he was fired.
And we’d have been able to see the arbitrator’s decision that reinstated him with four years of back pay, something that HPD was on the verge of releasing until SHOPO blocked it in court. Two years later, the case is still pending an appeal.
SHOPO, not surprisingly, is again trying to thwart passage of HB 285, by complaining that the name of an officer is not something the public needs to know.
“Publicly disclosing an officer’s name adds absolutely nothing to the multi-layered disciplinary procedures and protocols that are already in place,” SHOPO President Malcolm Lutu wrote in testimony.
But that misses another important point. Beyond the obvious public interest in how our police officers are behaving, it’s just as important to look closely at how police officials deal with misconduct.
As Circuit Court Judge Jeffrey Crabtree wrote in his ruling ordering the release of the Cachola arbitrator report: “There is a significant public interest in knowing how HPD supervises alleged misconduct, responds to misconduct allegations, and investigates alleged misconduct.”
HB 285 appears to be stuck in the final stage of the legislative process. It passed each chamber but the Senate amended the House version so it was slated for conference committee. Members were appointed to that conference committee but the bill has yet to be pulled up for discussion. The deadline is looming on Thursday and if it doesn’t get heard, it’s dead.
Unless … the House could sign off on the Senate’s amended version, thus sidestepping the need to resolve differences in conference committee.
Either way, HB 285 is a measure whose time is long, long overdue. Legislative leaders must recognize the significance of this legislation and help it the rest of the way along.
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The members of Civil Beat’s editorial board are Pierre Omidyar, Patti Epler, Jim Simon, Richard Wiens, Chad Blair and Jessica Terrell. Opinions expressed by the editorial board reflect the group’s consensus view. Chad Blair, the Politics and Opinion Editor, can be reached at firstname.lastname@example.org.