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The Hawaii Supreme Court has agreed to take up an issue that is incredibly important to journalists — the timely release of public information.
All too often we request records from a government agency that would help the public understand an important issue only to wait years to finally get them. By then, decisions have been made, public money has been spent, the critical opportunity to inform public discussion has been lost.
A perfect example is the case that the state’s highest court has now agreed to consider — the head-scratching question of why Sgt. Darren Cachola was reinstated by an arbitrator even though he was fired by Honolulu police officials after a stunning display of domestic violence was caught on a restaurant surveillance camera.
The incident occurred in 2014, sparking public outrage and reenergizing the debate over domestic violence in the community as well as by cops themselves. A group of women legislators confronted then-Police Chief Louis Kealoha, who promised a review of domestic abuse within the department’s own ranks.
Cachola was fired in 2015 after an HPD internal investigation. But the police union — the State of Hawaii Organization of Police Officers — stepped in and filed a grievance. In 2018, an arbitrator ruled in Cachola’s favor, reinstating him with back pay.
HPD, by then under the command of Chief Susan Ballard, decided to release the arbitrator’s report so the public could see why the arbitrator thought Cachola deserved to continue to be a police officer.
But then SHOPO filed a lawsuit and blocked the release. Civil Beat was allowed to join as an intervenor.
In February, a state Circuit Court judge ruled in the city and Civil Beat’s favor and ordered the report and supplemental materials released. But then SHOPO filed an appeal and Judge Jeffrey Crabtree agreed to stay the release of the documents until the appeal was resolved, something that could take another few years.
Meanwhile, in April, Cachola was arrested again for domestic violence after allegations that he abused his ex-wife. He was charged and bail set at $1,500.
Crabtree worried throughout the case that the public’s right to know what was behind the arbitrator’s decision was being seriously compromised by delay.
But in the end he was more concerned about what would happen if he released the documents and then a higher court said he was wrong. The proverbial cat would have been let out of that bag and Cachola’s right to privacy — the main issue in the legal wrangling — would have been lost.
So, here we all sit, still as clueless about what the arbitrator was thinking as we were nearly two years ago. And a cop who has a clear record of domestic abuse still has a gun and a badge despite police commanders saying he shouldn’t.
Last week, at the request of the Civil Beat Law Center for the Public Interest, the Hawaii Supreme Court agreed to take the case from the Intermediate Court of Appeals and hear arguments on whether to release the records anyway. It’s unusual, but not without precedent to lift a stay pending appeal, as the law center’s executive director, Brian Black, pointed out in a motion filed Thursday.
“The public deserves timely access to the Honolulu Police Department (HPD) disciplinary files to understand why Sgt. Cachola is still a police officer,” the motion says. “Police officers are integral to an effective criminal justice system that protects victims of domestic violence. As first responders to domestic violence emergencies, police officers have significant discretion in how those situations are handled.
“For society to confront domestic violence, victims must feel confident that if they speak, law enforcement will listen and take action. That trust diminishes when police departments cover up, or are forced by courts to conceal, domestic violence investigations concerning the people charged with enforcing the law.”
Generally, Black wrote, Hawaii’s public records law intends that information be disclosed in a timely fashion. The Legislature recognized this and so did the Governor’s Committee on Public Records and Privacy that suggested the standard.
“It should, however, be readily apparent that unless the record is produced on a relatively contemporaneous basis, it is far less use to the public or the agency. It is also far less likely to be accurate,” the committee said 30 years ago when it helped put the public records law in place, according to the motion.
“There is no remedy for Civil Beat if it obtains stale information years later after an appeal is complete. Information about Sgt. Cachola’s suspension is relevant to public discourse now,” Black wrote in the motion. “In the years that it will take to exhaust an appeal, the records will become increasingly irrelevant and certainly no longer ‘timely.'”
I’ve written about Crabtree’s decision to make the arbitration report public and you can read more about that here. But he came down strongly on the side of the public’s right to know.
“There is no remedy for Civil Beat if it obtains stale information years later after an appeal is complete. Information about Sgt. Cachola’s suspension is relevant to public discourse now.” — Brian Black, Civil Beat Law Center
As Black argues to the high court, it’s very unlikely SHOPO will prevail in the end, especially since the Supreme Court has already laid out what you have to do to balance a police officer’s privacy interest against the public’s right to know and SHOPO failed to do that.
“The balancing is so decidedly lopsided that even a cursory review of the in camera redacted submissions would show that a stay delaying disclosure of the redacted records is contrary to the Legislature’s intent in the UIPA to provide ‘timely’ and ‘expedited’ public access to government records,” Black wrote.
Black also points out that SHOPO has a long history of delaying tactics in order to prevent bad news particularly about police misconduct from coming out. We know this situation well — Civil Beat has been fighting SHOPO since 2013 on a number of fronts.
Three years ago, after several years of lower court legal skirmishes, the Supreme Court agreed with us that police misconduct files should be made public. The justices sent the case back to Circuit Court Judge Gary Chang to review the files and hand them over.
As far as I know Chang has yet to even open a file folder — six years after we first requested the records.
In 2017, we asked for salaries of police officers as part of the big public salary database we put together every year. The city agreed but SHOPO filed a lawsuit to block release, contending that many of the officers could have been operating undercover and their safety jeopardized. This despite both the police department and city officials insisting they had reviewed the material and no undercover officers were included.
We finally got the info — two years later.
Obviously the media isn’t the only group requesting public information that runs into this problem. But we do have a unique responsibility to help people understand issues so they can make good decisions about the things that affect their lives.
“There has to be a point at which the public interest so strongly favors disclosure that a requester can get documents without waiting years on appeal after a trial court orders disclosure,” Black told me after he filed the motion Thursday. “It may not be every public records case, but the incident with Sgt. Cachola far surpasses that threshold.”
The Civil Beat Law Center for the Public Interest is an independent organization created with funding from Pierre Omidyar, who is also CEO and publisher of Civil Beat. Civil Beat Editor Patti Epler sits on its board of directors.
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