In a victory for press freedom, a federal judge on Friday ruled that a Honolulu journalist will not have to turn over information relating to her investigations of a Maui police officer accused of sexual misconduct.

The sweeping order by U.S. District Court Judge Leslie Kobayashi means Hawaii News Now’s chief investigative reporter, Lynn Kawano, won’t have to provide documents to Maui County attorneys who are seeking to defend former Maui police officer Brandon Saffeels against allegations of misconduct.

Kobayashi had previously indicated she was inclined to find that some of the information sought by the county was not covered by a privilege protecting journalists from revealing information gathered while reporting. But Kobayashi’s ruling on Friday granted Kawano’s request for a broad protective order, essentially covering everything the county had sought from Kawano.

Federal Building and US Courthouse.
A federal court in Hawaii has upheld a journalist’s privilege protecting a reporter’s investigation of a Maui police officer accused of sexual misconduct. Cory Lum/Civil Beat/2022

A key question was whether Kawano had waived her privilege by working too closely with Michael Green, a Honolulu trial lawyer who has sued the county alleging Saffeels improperly used his authority to coerce citizens into having sex with the officer.

According to the complaint filed by Green against Maui County, in July 2019, Saffeels pulled over Alishia Constantino, charged her with driving under the influence and later tried to get Constantino to have sex with him in exchange for getting the DUI case dropped.

Constantino sued Saffeels and the county. Kawano later reported on the Saffeels-Constantino incident, documenting her story with portions of recorded phone calls and text messages.

Saffeels was later convicted as a sexual predator in a separate case. He pleaded guilty to a federal charge of attempting to have sexual contact with a someone he thought was a 13-year-old girl. He was sentenced to 10 years n prison.

The problem with the Constantino case, Maui County lawyers allege, is that Saffeels was set up, in what Constantino and her friend Jennifer Boswell purportedly called “the golden ticket scheme.”

The idea, according to Maui attorneys, was to get Constantino off the hook for the DUI charge and get money by suing the county.

In her 26-page protective order, Kobayashi described the golden ticket scheme.

“According to Boswell, at one point, she told Constantino to ask Saffeels to call instead of sending text messages,” Kobayashi wrote. “Constantino did so, and Saffeels called Constantino. Boswell was on another phone that was also connected to the call between Constantino and Saffeels, and Boswell recorded the conversation.

“During that conversation, Boswell sent Constantino text messages with suggestions and some specific instructions about what Constantino was to say to Saffeels,” Kobayashi explained.

While all this might play into the county’s defense, the question for the court was whether the county could overcome Kawano’s privilege and force her to turn over information she had and sit for a deposition. To overcome the privilege under the law established by the 9th U.S. Circuit Court of Appeals, the county would have had to show that information Kawano had could not be gotten elsewhere and was clearly relevant to the county’s case.

Kobayashi said the county failed to show those elements.

In addition, the judge said Kawano hadn’t waived her journalist privilege by talking to Green.

Finally, the court addressed the county’s attempts to question Kawano about other matters, including her professional relationship with Green and the scope of conversations she purportedly had with the FBI.

Even if such information existed and was not covered by journalist privilege, the information was so closely connected to Kawano’s work as a journalist that Kobayashi said it should be protected.

Bruce Voss, the attorney for Kawano and her employers KGMB and KHNL, declined to comment beyond a written statement.

“This is an important ruling, firmly upholding the news reporter’s privilege for newsgathering within the Ninth Circuit, and setting a high bar for alleged waiver of that privilege,” he wrote. “I appreciate Judge Kobayashi’s thorough and thoughtful review of the facts in the record and the law.”

Maui Deputy Corporation Counsel Keola Whittaker could not be reached for comment.

Civil Beat’s coverage of Maui County is supported in part by grants from the Nuestro Futuro Foundation and the Fred Baldwin Memorial Foundation.

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