More than eight years after we filed a lawsuit seeking a dozen Honolulu Police Department disciplinary files, we finally got them. First Circuit Court Judge Gary Chang, who took five years to review and release 12 files — and some of them were only a single note card — finally turned them loose earlier this month.
I’ve been thinking about what we accomplished after all that time — and money. Not only did our attorney — Brian Black of the Civil Beat Law Center for the Public Interest — put in hundreds of hours on the case since 2013 but taxpayers footed the bill for Honolulu city attorneys. And members of the State of Hawaii Organization of Police Officers paid a pretty penny for SHOPO to fight disclosure at every turn. Black is working to recoup attorney fees and costs; I’ll let you know how that turns out. Hopefully it won’t take eight years.
Was it worth it? Most definitely. But for reasons that go well beyond what we’d originally expected.
By the time Chang signed off on the final release of the records, the information on misconduct in the files was basically worthless from a news perspective. By then, the cases were well more than a decade old.
We also found out as our lawsuit progressed that some of the disciplinary files we’d asked for had already been reduced to single note cards with very few details because HPD’s records retention policies — heavily influenced by SHOPO’s collective bargaining agreement — generally allow officials to destroy files after a couple of years.
Even then, in 2013 we asked for 12 files that appeared to be some of the most egregious examples of misconduct from the previous 10 years. So, as Black noted when we talked about the case last week, a 2003 incident probably wasn’t going to have much immediate news value anyway.
“The real issue was the state of the law at least as it was being interpreted by the police department,” Black says.
A Different Attitude
In 2013, the state of the law was much different. As Civil Beat laid out in a 2013 investigative series “In The Name Of The Law,” police officers throughout the state had long enjoyed a unique exemption from Hawaii’s public records laws when it came to public scrutiny of misconduct.
Disciplinary records for every other public employee who had been suspended or discharged were publicly available — but not the cops. In 1995, the Legislature, under heavy lobbying by SHOPO, had approved an exemption that allowed police officers to keep detailed information about suspensions secret although information on fired officers could eventually be disclosed.
Instead, the Legislature required police departments to submit annual summaries to lawmakers, documents that amounted to little more than a sentence or two about dozens of incidents of misconduct each year.
Suspensions are important because they are the bulk of the disciplinary actions. Some officers do get fired but, as we have reported, most get their jobs back through arbitration and their discipline reduced to suspensions.
Although SHOPO had argued that officers shouldn’t be subject to what the union characterized as public humiliation for minor offenses like missed paperwork or even a bad decision made in the heat of the moment, our series documented a much different situation. In reality, officers were mainly being disciplined for serious misconduct — brutality, domestic violence, lying, even criminal offenses that ended in conviction.
So the first thing that happened that made this whole exercise in championing the public’s right to know worth it was the creation of the Civil Beat Law Center. We needed an attorney to take the case so my boss, Pierre Omidyar, started the law center to do it. Full disclosure: I’m on the board.
Over the past nine years Brian Black has taken on many legal battles over public records and open meetings and has succeeded numerous times in strengthening and clarifying the public’s ability to check up on what its government is up to. He’s filed 50 motions or lawsuits on behalf of a variety of clients. He’s helped lawmakers write their bills, testified before the Legislature on numerous measures and fielded more than 1,200 inquiries from people in need of answers to public access questions.
The center has had some big wins on the public’s behalf. In 2018, the Hawaii Supreme Court overturned 30 years of government secrecy when Black successfully argued in a case involving draft city budget records that agencies couldn’t just refuse to release public records because they were still deliberating. That case has had far-reaching effects on the release of public information throughout state and local government.
The law center also forced the Honolulu Police Commission to turn over information including executive session minutes on the $250,000 payout to former Honolulu Police Chief Louis Kealoha, a case that has set limits on the circumstances under which public boards can have personnel discussions behind closed doors.
More recently, the Supreme Court last year threw out the Legislature’s often-used tactic of gutting and replacing bills with new subject matter without further public hearing. And Black was successful in winning the release of body-worn camera footage in recent police shootings.
Meanwhile, while the police misconduct case was being argued and considered at various stages of the court process over the past eight years, lawmakers and good-government advocates were bolstered and took the opportunity to press the issues raised by the lawsuit at the Legislature.
In 2014, about a year after the case was first filed, then-Circuit Court Judge Karl Sakamoto ruled that police officers have no special right to privacy when it comes to their disciplinary files. SHOPO immediately appealed the case, but the ruling encouraged lawmakers like then-state Sen. Will Espero, always a staunch advocate of police reform, to keep pressing for repeal of the exemption as well as other measures.
In 2016, the Supreme Court largely agreed with Sakamoto and ruled that police misconduct cases should be released in those instances where the public interest outweighed a police officer’s privacy interest. The high court sent the case back to the lower court to review the 12 cases and apply the balancing test. By that time Sakamoto had retired and the case was assigned to Chang.
But the writing was on the wall and lawmakers inched closer every year to eliminating the exemption. Still, under pressure from SHOPO the measure failed year after year.
Political Pressure Grows
Even Honolulu police officials seemed to recognize the inevitable. In 2018, when HPD Sgt. Darren Cachola was reinstated by an arbitrator after he was fired for punching his girlfriend in a Waipahu restaurant, an event that was caught on surveillance cameras, then-Police Chief Susan Ballard agreed to release the arbitrator’s decision, even though SHOPO took her and the city to court to prevent its release.
The Legislature also began approving some measures to hold police more accountable. In 2017, lawmakers created the Law Enforcement Officer Independent Review Board that is supposed to review police shootings and other fatal encounters. That board is actually set to sunset this year and has suffered nearly every year from a lack of funding to carry out its reviews. After an initial detailed report on its first case, the board has taken a step back on disclosing information and is producing only brief summaries.
In 2018, lawmakers put in place a law enforcement standards board; Hawaii had been the only state without a statewide board to create and enforce standards for all law enforcement officers with the power to decertify officers who violated standards. Years later, the board has yet to put standards in place because it’s never been given adequate funding. And it’s asking the Legislature to exempt all current officers.
But in 2020, with the country’s attention still captured by the highly publicized death of George Floyd at the hands of a Minnesota police officer, the Legislature finally eliminated the 25-year-old exemption from public disclosure of information for officers who had been suspended. The bill became Act 47 and has survived challenges by SHOPO on several fronts, although one provision is still being argued before the appellate court.
Local government officials soon began complying with the law. And Black successfully argued before the Supreme Court that arbitration records like Cachola’s were part of the disciplinary files that Act 47 required to be released.
That has led to all four county police departments releasing dozens of arbitration decisions requested by Civil Beat. Reporter Nick Grube has been detailing the decisions and issues that they raise in a series of stories that show serious flaws in the police arbitration process.
“Cachola never would have happened if (the 2013) case hadn’t started the ball,” Black says about the court’s relatively quick decision on the issue of arbitration records. “Cachola would have been much more uphill.”
The 2013 case also has had effects on public records laws in general that we’re seeing in other areas. The key legal issue has always been whether public employees have the right to keep their bad behavior secret when the misconduct raises a bigger public concern.
The Hawaii Supreme Court recognized that public interest must be balanced against an individual’s right to privacy, which generally gets to the issue of how you deal with privacy in public records, Black says.
“So you can’t just say there’s a significant privacy interest and not give (a public record) to you,” he says. “You have to consider the public interest in disclosure.”
That’s also been a factor in another lawsuit Civil Beat has filed, this one against the state Department of Education. We want records that cover teacher misconduct, including which teachers and staff at which schools have been disciplined, as well as information about teachers who have been allowed to resign before they were fired. It’s important that parents and the community know when their kids may have been put in a bad situation and have confidence that bad teachers aren’t just moving on to another school.
And those original 12 HPD misconduct files? It turns out getting the names of the officers involved allowed us to look at other ways HPD may be falling short when it comes to keeping problem officers in check. Several have been promoted, including one who is now a lieutenant.
At least five were repeat violators, which is a disturbing discovery since we only asked for 12 cases out of dozens of files. It seems worthwhile to go back and identify as many as we can and see who remains in the department.
Some who were suspended for not telling the truth or falsifying records are on the prosecutor’s “Brady list” that tracks cops who have been caught lying. Yet others among the 12 cases who should have been on the list are not. It’s important because their names are supposed to be disclosed to criminal defense attorneys if they are involved in a court case.
Several in our batch were convicted on criminal charges, and yet they remain in the department.
One thing that’s for sure, police misconduct has been an important issue for us here at Civil Beat for the past many years. Finally getting these records has made us more determined than ever to stay on top of it. And that’s another good thing to come of all this.