The case might’ve made headlines if anyone had known about it. 

When she was 15, the plaintiff said was sexually assaulted and emotionally abused by her guardian, a “high-ranking official” in the Church of Jesus Christ of Latter-Day Saints, according to court records. 

In 2005, she sued her alleged abuser and the church, a multibillion-dollar institution and major Hawaii landowner, and the case was settled out of court shortly thereafter, court records show. It all stayed a secret for years.

It was one of more than 600 civil cases the state court system marked as “confidential” between 2005 and 2022, according to the Hawaii State Judiciary. 

Cases with this designation are entirely hidden from public view. Unlike the vast majority of lawsuits, the identities of the parties, their attorneys and the judge; the list of events in the case known as the docket; and all case records are entirely secret. Even the records explaining why the cases are sealed are – you guessed it – sealed. 

Members of the public have no way of knowing the cases even exist.

Such cases represent fewer than 1% of all civil cases filed in Hawaii courts, according to the Judiciary. But the secrecy means that a select few get to resolve their legal disputes in private, keeping potentially embarrassing allegations out of the public eye. This is sometimes done without any documented justification.

It also robs the community of the opportunity to learn about issues that may be of public importance. The cases may involve powerful institutions or people in a position of public trust. The public has a constitutional right of access to court records, and Hawaii may be violating that, according to First Amendment experts interviewed by Civil Beat.

“It’s absurd to me,” Jennifer Nelson, a senior staff attorney for the Reporters Committee for Freedom of the Press, said in an interview.

“The idea that entire cases are sealed – including dockets, the names of parties, along with everything filed in the case – it’s not supposed to happen that way. Not without significant justification, which I have a hard time believing could really ever be met.”

The Judiciary declined to make anyone available for an interview or respond to questions about the constitutionality of its sealing practices.

Meanwhile, the exposure of secret dockets has caused outrage and sparked reforms in other states, from Connecticut to Washington.

“It undermines public confidence in the judicial system if there are proceedings happening out of public view,” Nelson said. 

In a statement, the Church of Jesus Christ of Latter-day Saints said that when the abuse allegations were made by the Jane Doe plaintiff in 2004, it removed the alleged perpetrator from a position in which he oversaw hundreds of congregants and disciplined him. 

“At the request of the victim, the Church supported a confidentiality agreement in a civil case resolved in 2005,” church spokesman Sam Penrod said in an email. “The Church did not oppose recent efforts to unseal the case file.” 

Hawaii’s Invisible Court Records

The sealed files include civil lawsuits, conservatorships and guardianships as well as probate, land, tax, trust, and mechanic’s and materialman’s lien cases, according to the Judiciary. There are also a handful of sealed cases in Hawaii District Court, which deals with small claims disputes, landlord-tenant issues and temporary restraining orders. 

The Civil Beat Law Center For The Public Interest, a nonprofit focused on open government issues, has been trying to shine a light on these cases for years. After obtaining a list of Circuit Court civil case numbers with a so-called “confidential flag” in 2020, the nonprofit’s executive director Brian Black has been working to unseal them one by one. 

The cases he’s unsealed so far, including the aforementioned Mormon Church case, raise questions about why they were sealed in the first place. 

The divorce proceedings of Peter Kubota, a Hilo Circuit Court Judge, were sealed at his ex-wife’s request before he joined the bench, even though divorce records in Hawaii are generally public records. 

When Black tried to unseal the file, Kubota opposed it, arguing that the file contains private personal and financial information and that its disclosure would constitute an invasion of privacy. 

Family Court Judge Brian Costa ordered the partial unsealing of the file, redacting or withholding information regarding child custody but otherwise opening the case to public inspection. Kubota did not respond to a request for comment. 

In another case hidden from public view, the Hawaii Department of Human Services sued a woman accused of fraudulently obtaining over $50,000 in public assistance payments. The case was sealed at the defendent's request, with no objection from the state, the unsealed docket shows. A judge ordered the case’s disclosure after the Law Center entered a motion to unseal it. 

Also sealed was a case of alleged sexual assault filed against Our Lady Of Good Counsel, a Roman Catholic Church in Pearl City, and one of its former volunteers. The plaintiff asked for the case to be sealed at the same time she asked for a "Jane Doe" designation. A judge granted both requests. The church denied liability and the case was set to go to trial but was ultimately resolved via confidential binding arbitration, the unsealed court records show.

The Hawaii Supreme Court has ruled that the First Amendment provides the public with a right of access to court records that can be only overcome in special circumstances. 

Some types of cases are filed under seal because the law requires it, Black said.

For instance, Family Court cases involving minors and adoption cases, are, by law, shielded from public view, Judiciary spokeswoman Jan Kagehiro said in an email. Similarly, juvenile justice system records and some other kinds of criminal records are routinely sealed.

So are False Claims Act cases, filed by whistleblowers trying to recover money on behalf of the government. Those cases are sealed for a limited time to give government officials a chance to vet the claims and see if they want to get involved in the case, Black said. But they’re supposed to become public thereafter. 

Otherwise, cases can only be sealed by court order. And the onus is on judges to demonstrate – in writing – that closure serves a “compelling interest,” that transparency would harm that interest and that there are “no alternatives to closure that would adequately protect the compelling interest,” the Hawaii Supreme Court has stated. 

And, the court notes: “Simply preserving the comfort or official reputations of the parties is not a sufficient justification.” 

According to Black, Hawaii’s court system has fallen below that standard. 

“I haven’t come across one yet that had a justification for being filed entirely under the seal the way that it was,” he said. 

A Battle For Transparency 

Black’s exploration of Hawaii’s sealed civil case records began with Edward Wagner. 

According to Black, Wagner found a 2013 news article about a case against Geico and wanted to read the court records. The case was filed by a former Geico attorney who said the insurance company retaliated against him for informing clients of their rights.

But when Wagner tried to look up the case in the court’s online search engine, he got a pop-up telling him the case was confidential. 

After Wagner filed a motion to unseal the case, Judge Keith Hiraoka said the case was sealed because attorneys on both sides had agreed to it and a prior judge had approved it. 

“That is absolutely not sufficient on its own to justify sealing,” Alex Abdo, the litigation director of Columbia University’s Knight First Amendment Institute, said of the circumstances in the Geico case.

Hiraoka agreed and gave Geico a chance to request a more narrowly tailored sealing order. 

The insurance company fought back, sparking a yearslong legal battle that would later reach Hawaii’s Intermediate Court of Appeals. 

Geico argued that the case documents should remain sealed because they contained legally protected information, but also because of Wagner’s motives. The insurer accused Wagner of carrying out a spiteful vendetta following his own insurance dispute with the company years prior. 

Apparently, Wagner had sent multiple “salty” emails to the company, one of which included a cartoon of a gecko, presumably the GEICO mascot, that was run over by a car, GEICO told the court. 

“What is more, Wagner has never explained why he is so motivated to unseal the records, other than vague gestures towards the public’s interest,” the company said. 

The courts were not persuaded by this. 

Furthermore, Geico argued, the filings shouldn’t be revealed to the public because they include “gratuitous information and baseless allegations.”

But that’s not a reason to keep information from the public, Nelson said. 

“Embarrassment to a company or personal embarrassment is typically not enough to justify the sealing of records,” she said. “If that were the case, we wouldn’t have access to most civil cases.”

In January of this year, the Intermediate Court of Appeals sided with Wagner, who, by then, was represented by the law center. Wagner was not available to comment on this story, according to Black. 

In the meantime, Black has filed several more motions to unseal cases, randomly choosing from his list of sealed case numbers. 

One of the cases Black got unsealed was a False Claims complaint from 2017, the type of case that is supposed to be unsealed at a certain point but apparently never was. It accused a local casket company and other entities of fraudulently billing a state Medicaid program. Court records show the case was settled. 

The state doesn’t have a practice of reviewing its sealed records to see if they should be opened up, according to Kagehiro.  

“Upon motion or proper appeal, a court may review a decision to seal a case, or particular information in the case,” she said. “A court does not typically on its own review a case after it has been closed.”

Some Hawaii files were sealed for no discernible reason. 

That was the case with a lawsuit from the 1970s involving the late Art Rutledge, one of Hawaii’s most powerful labor leaders. There was nothing secret about it. It was covered in the Honolulu Advertiser at the time. 

“When the judge held a status conference on that motion, none of the attorneys knew why the case was flagged as confidential, so the judge just unsealed it,” Black said. 

A climate change lawsuit filed against the Hawaii Department of Transportation by 14 minors also ended up with a confidential marking. 

The lawsuit was publicized at the time it was filed but was subsequently sealed, perhaps by accident. In a court filing, Judge Jeffrey Crabtree said the case was marked as involving juveniles, which apparently locked the case out of public view. At the law center’s request, the judge ordered that to be undone. 

This not the first time Hawaii’s system of secrecy has drawn attention. In 2002, then-Honolulu Star-Bulletin reporter Rob Perez revealed that numerous divorce cases were granted the privilege of absolute secrecy, including the wife of University of Hawaii football coach June Jones. 

The cases fueled concern that Hawaii has dual systems of justice, one for regular folks and another for the rich and powerful. There was some talk of reform at the time, according to Perez’s reporting. But when attention faded, it appears the court returned to business as usual. 

In 2018, an attorney for the Judiciary suggested that the courts may have changed their sealing practices following back-to-back Hawaii Supreme Court opinions, according to a letter to Black. Based on lawsuits filed by the Honolulu Star-Advertiser’s parent company, opinions in 2014 and 2016 reaffirmed the public’s right to access court records and outlined procedures to limit careless and unnecessary sealing. 

But since 2016, more than 100 civil cases have been sealed in their entirety in Hawaii state courts. 

If there are records on file justifying why that blanket-sealing is necessary, the public can’t see them. 

Court Secrecy Tamped Down Elsewhere 

Oversealing of records has drawn major scrutiny in other states and in the federal courts. 

More than 20 years ago, the Hartford Courant in Connecticut brought attention to that court system’s secret cases, sparking public outrage that forced changes to the state’s practices, according to the Reporters Committee for Freedom of the Press. The paper later sued to force disclosure of the records that had been sealed prior to those changes. 

In 2004, the federal appeals court that oversees Connecticut ruled that the public had a qualified right to view docket sheets, and several case files were subsequently unsealed. But no system is perfect. Just three years ago, a Connecticut judge was caught sealing records related to her own beach home. 

“A lot of times what you see is a particularly powerful individual involved who has the means to secure aggressive legal counsel that can seek to keep matters quiet,” Nelson said. “Sealing entire matters is certainly a way to do so.”  

In 2006, The Seattle Times exposed a series of lawsuits that had been filed under seal, including cases about child molesters, wrongdoing by doctors and financial improprieties by public traded companies. Following the paper’s series, the court system stopped filing civil, guardianship and divorce cases under seal. 

Secret dockets have also been found in New Hampshire and California, as well as in the federal court system. Staff at the U.S. District Court in Honolulu said they were unable to specify how many civil cases in their system, if any, may have been sealed entirely in recent years. 

Even when entire cases aren’t entirely “disappeared,” courts across the country have been criticized for overzealously sealing documents within the proceedings. For instance, judges sealed evidence of opioids’ harms years before the addiction crisis became more widely known, according to a 2019 Reuters investigation. 

So what can be done? 

First of all, documents can be redacted to cover sensitive information, like Social Security numbers or medical history. But Abdo with the Knight First Amendment Institute said they should otherwise be left open for inspection.

If a document or case must be sealed entirely, he said the justification for doing so should meet constitutional standards and should be documented and made available to the public. 

“If a party wants to seal the motion to seal, they need to justify that too,” Abdo said. 

Courts could also invite public access advocates to make the case for openness when judges are hearing arguments about whether to seal a case. 

“It’s not the most common thing, but it’s done,” he said. 

Even in the absence of a voice pressing for transparency, judges need to remember their duty to promote openness, Nelson said. 

“The judge does have an obligation – is supposed to have an obligation – to keep that in mind and not just rubberstamp the party's request to keep a matter sealed,” she said. 

Oftentimes, Abdo said, the reason for sealing a case is time-sensitive, and the information may not need to stay private forever. The court should have a process for reviewing those cases for potential unsealing.

“At the very least there should be a periodic check-in,” he said. 

The court’s obligation to be transparent has been reaffirmed in appellate cases over the decades. 

As U.S. Supreme Court Chief Justice Warren Burger said in the court’s 1980 decision in Richmond Newspapers v. Virginia: “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”

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.