When it comes to disclosing information about the men and women who die in Hawaii’s prisons and jails, the state Department of Public Safety has been in lockdown.

Correctional systems in ArizonaNevada and California all routinely announce inmate deaths as they occur, and each of those states provides the names, ages and other information for each prisoner who dies in custody.

But Hawaii rarely announces inmate deaths, and the correctional system also refuses to publicly identify the prisoners who die inside.

On Friday, Civil Beat filed a lawsuit in First Circuit Court in Honolulu asking the court to overrule that policy and require corrections officials to release information about prisoners who die in custody, including their names.

26 may 2015. photograph Cory Lum/Civil Beat
The prison system no longer identifies inmates who die in state prisons or jails, which generally makes it impossible to obtain the deceased prisoners’ autopsies to learn how they died. Cory Lum/Civil Beat

The lawsuit cites the state’s Uniform Information Practices Act, which requires that all government records are open to the public unless access to them is restricted or closed by law.

Corrections officials have argued they are prohibited under the federal Health Insurance Portability and Affordability Act, or HIPAA, from releasing the names of the deceased inmates.

However, that claim “does not justify withholding identifying information from statutorily required notices regarding the deaths of individuals entrusted to the Department’s custody,” according to the lawsuit.

Civil Beat is being represented in the case by the Civil Beat Law Center for the Public Interest and attorney Brian Black, the center’s executive director.

Wookie Kim, legal director of the ACLU of Hawaii, said information about the deaths of prison and jail inmates is important because prisoners “are some of the most vulnerable people around, and it’s absolutely critical that we know the identities of people who die in prison, and we know what the cause of death is.”

Knowing the identities of prisoners who die in custody is generally necessary to obtain their autopsies, which in turn provide important information on how they died. That includes basic facts  such as whether they were murdered, committed suicide, overdosed or died of an illness.

ACLU Legal Director Wookie Kim said transparency in cases of inmate deaths is critical. Screenshot

“That is the only way that we as outsiders can determine whether what happened was the result of really unjust conditions of incarceration, or some lapse in the way that the system is being run,” Kim said. “It is absolutely critical that there be transparency in this context.”

The issue of what information about inmate deaths is made public has been simmering for years, and in 2019 the Legislature passed Act 234 to require the correctional system to file reports with the governor each time a prisoner dies in custody.

That law requires prison officials to disclose the name of each inmate who dies, along with other information such as the cause of death, to the governor and lawmakers within 48 hours of each fatality.

The state released limited information about inmate deaths in 2019 and 2020 to comply with the new law, but the names of the deceased prisoners have been blacked out in all of the Act 234 reports that have been released to the public to date. In fact, the reports are redacted so throughly that they contain almost no information.

Even so, the first batch of Act 234  reports triggered new scrutiny when they did reveal a murder at the Oahu Community Correctional Center in 2019 that the prison system had never publicly announced.

That case involved Jacob Russell, 56, who was attacked at the jail by Payton Nathaniel Hough on Nov. 19, 2019. Hough stomped on Russell’s head and neck during the attack, and Russell fell into a coma before dying on Christmas morning that year. Russell’s family identified him as the victim in that attack.

Both Russell and Hough had histories of mental illness, and a state judge ruled last August that Hough was not legally responsible for his actions that day at OCCC. He was acquitted of a murder charge and committed to the state Department of Health for treatment at the Hawaii State Hospital.

Since those first redacted Act 234 reports were released by the House speaker’s office last year, state policy on what information is made available in inmate deaths has been evolving.

After staff in the House speaker’s office released those first redacted reports on Russell and other fatalities last year, the death reporting forms used by public safety officials were amended to warn state employees that public release of even redacted versions of the documents is legally prohibited.

Until late last year corrections officials generally identified inmates who died in custody if reporters inquired about those specific prisoners or about an incident that resulted in deaths. However, the department more recently changed that policy to make it more restrictive.

Corrections officials now say they must withhold the names of all inmates who die in custody to comply with patient privacy mandates in the federal HIPAA law. That law was passed by Congress in 1996.

Laurie Nadamoto, litigation coordination officer for the department, said in a written statement this year that the names of inmates who die in custody must be deleted from Act 234 reports because “HIPAA restrictions prevent the Department of Public Safety from disclosing individually identifiable health information.”

Department of Public Safety Director Max Otani told the Hawaii Correctional Systems Oversight Commission on Sept. 16 that he personally would not object to releasing more information about inmate deaths, but “the laws just need to be changed to allow us to present that information.”

“I don’t have a problem with presenting that information if the law allows us to, but according to legal advice that we’re getting, they’re telling us not to release certain information,” Otani told the commission.

Toni Schwartz, spokeswoman for the Department of Public Safety, said the department has not yet been served with the lawsuit, and “we have been advised not to comment on possible pending litigation.”

She referred further comment to the state Attorney General’s office.

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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