It doesn’t take long for someone perusing the State of Hawaii’s Uniform Information Practices Act to realize that the so-called “Information Age” hasn’t yet reached our shores. In fact, as far as law enforcement is concerned, our state is still mired in an Age of Exemption.
I was reminded of this while reading the May 22 Maui News story “Six Officers Disciplined With Suspensions.” The story, which ran just 11 paragraphs and carried no byline, outlined disciplinary actions levied against six Maui police officers during March and April of this year. Misconduct ranged from one officer backing into a car while trying to park to an officer acting “uncooperative and disrespectful” towards other officers while off duty. Sanctions included reprimands, both oral and written, as well as suspensions of one to five days.
Missing from the story was any identifying details of the disciplined officers. Instead, the story’s penultimate paragraph said passively, “The names of the officers were not made public.”
And there the matter ends. Asking MPD why the policy exists turned out to be a waste of time. First I asked Lt. Wayne Ybarra, the Maui Police Department’s Community Relations Officer. He said that he would forward MauiTime’s written request for an explanation to Chief Gary Yabuta. After a week of not receiving a response, I asked Ybarra again. On June 8, Ybarra forwarded the request again to Yabuta, as well as Deputy Chief Clayton Tom, Assistant Chief Danny Matsuura, Assistant Chief Wayne Ribao, Captain Mollie Klingman and Captain Lawrence Hudson. None of them responded either. Then on June 13, Lisa Ann Tomita of the department’s Community Relations Section finally responded.
“Thank you for your patience,” she wrote. “The Maui Police Department does not provide names of the Officers who were disciplined.”
And that was it. Of course, the department’s complete unwillingness to discuss the issue isn’t surprising, because they simply don’t have to. That’s because the state’s information practices law makes a special exemption for law enforcement officers who are disciplined for misconduct. Alone among government employees, cops put on suspension don’t have to worry about their names becoming public. For Lois K. Perrin, the legal director of the American Civil Liberties Union’s Hawaii office, this is a big problem.
“While the ACLU believes that, as a whole, Hawaii open records law provides a good balance between government transparency and personal privacy, we believe that the Legislature may have given too much deference to county police departments,” Perrin said. “The public trust in the police is increased when the police departments can show that they conduct thorough investigations into allegations of misconduct and that they hold officers accountable when appropriate. Denying public access to such records hampers the public’s constitutional right to hold the government accountable.”
University of Hawaii journalism professor Gerald Kato thinks the law is simply absurd. “You can get details about university professors and even janitors who’ve been disciplined,” he told me, “but not police officers.”
To be fair, not all of the misconduct incidents outlined in The Maui News article seem to warrant full public disclosure. I think we as a society can survive not knowing the identity of the officer handed a three-day suspension for “posting derogatory and demeaning comments on a social network in August.” But the public should certainly know the names of the officers sanctioned for being “disrespectful” to fellow officers, “being untruthful and falsifying a report,” “failing to follow orders” and for failing “to act professionally while issuing a traffic citation.”
What’s more, many officers who’ve been disciplined remain unknown even to members of the Maui Police Commission, said one commissioner who requested anonymity. “I support the policy [of not releasing the names of disciplined officers],” the commissioner said, “but I can see why making some of the names public would be good for government accountability.”
During six years of reporting on Maui County, I can’t recall a single instance when the department willingly gave me the name of an officer—even in circumstances that were favorable. In 2003, for instance, I asked then Maui police spokesman Sergeant Jamie Becraft for a list of any awards or citations received by one patrol officer whose name I had somehow obtained. Becraft refused.
For Kato, the contrast in policies between Hawaii and many large Mainland cities and states couldn’t be clearer—or more maddening.
“You hear about a police shooting in New York, and then there’s an article in The New York Times detailing who the officer was, how long he’s been on the force and if there are any disciplinary actions against him,” he said.
In fact, lots of news sources aren’t nearly as willing as The Maui News to give cops such protection. On May 23 WSAV in Savannah, Georgia reported on the dashcam video of an alleged act of excessive force by Effingham County Sheriff’s Investigator Jeremy Scott. On May 24, King 5 News in Seattle ran a story on three Seattle police officers – Brett Schoenberg, Casey Steiger and Corey Williams – who were suspended for cursing at a suspect they were arresting. And on May 25, the San Antonio Express News ran a detailed story on Northside Independent School District police officer Daniel Alvarado’s considerable history of official reprimands and counseling sessions after he shot and killed a 14-year-old boy who was running from him.
Hawaii’s special exemption appears in Section 92F-14 of the Hawaii Revised Statutes, which outlines examples of “significant privacy interests.” If you go to subparagraph (b), then sub-subparagraph (4), and then find section (B) of that, and scroll down to sub-sub-sub-subparagraph (v), you’ll find that public employee misconduct information is indeed public unless the employee is a “county police department officer” and then the whole public information thing “shall not apply.”
Of course, the exemption is not absolute. According to an attorney at the state Office of Information Practices who spoke on background, police agencies in Hawaii must release the names of law enforcement officers who’ve been terminated, as long as they’ve exhausted all of their appeals.
According to Kato, that could take years.
The OIP also states that the exemption is still subject to the so-called “balancing test.” According to the OIP attorney, even though police agencies do not automatically have to disclose the names of officers who’ve been suspended for misconduct, the information can still be weighed against the public interest—the need for government to be accountable and functioning properly.
Of course, this hardly ever happens.
It didn’t used to be this way. In 1993, a group of Kato’s students—who constituted the student chapter of the Society of Professional Journalists—asked the Honolulu Police Department for the names of officers who’d been recently disciplined in some way. The department balked, demanding an absurd $20,000 in research fees from the students. Eventually, the matter got kicked over to OIP.
At the time, law enforcement personnel in Hawaii were—as far as the Information Practices Law was concerned—just like any other public servant. So the OIP ordered the department to comply and hand over the names. HPD eventually said they would comply, and announced they would release the names on Feb. 11, 1994.
But on Feb. 10, the powerful State of Hawaii Organization of Police Officers (SHOPO) sued the City of Honolulu on behalf of four unnamed (naturally) cops in an attempt to block the disclosure. According to Kato, SHOPO also began levying special dues on its members to pay for an intensive lobbying campaign in the state Legislature (officials with SHOPO did not respond to a request for comment for this story).
In 1996 the SHOPO lawsuit reached the Hawaii Supreme Court, which ruled in favor of Kato’s students. By then though, it was a moot victory. A year earlier, SHOPO’s lobbyists convinced the Legislature to pass the now familiar police department exemption to the state’s Information Practices Law. The bill had already become law—without then-Governor Ben Cayetano’s signature—back in May 1995.
There was one “compromise.” After the exemption went into effect, all county police departments in Hawaii had to file regular reports listing statistical information on disciplinary actions—the basis of the May 22 Maui News story.
“I never recognized it as a compromise,” Kato said. “The statistical information doesn’t tell you who the officers are, or if the officers were involved in other incidents.”
Perhaps most discouraging, Kato says he can’t think of any challenges made to the exemption—either inside or outside the Legislature—since it went into effect.
“The Legislature created the Information Practices law, and they can make modifications as they see fit,” Kato said. “My students won on the principle and lost on everything else.”