83 Hawai'i 378, State of Hawai'i Organization of Police Officers (SHOPO) v. Society of Professional Journalists-University of Hawai'i Chapter

• Decision Date: 15 November 1996
• Docket Number: No. 94-0547,JOURNALISTS-UNIVERSITY,KHON-TV2,No. 19583,KGMB-TV9,No. 94-0657,94-0547,94-0657,19583
• Parties: 83 Hawai'i 378, 154 L.R.R.M. (BNA) 2373 STATE OF HAWAI'I ORGANIZATION OF POLICE OFFICERS (SHOPO), Plaintiff-Appellee, and Doe Police Officers 1 through 4, Plaintiffs-Intervenors-Appellants, v. SOCIETY OF PROFESSIONALOF HAWAI'I CHAPTER, a non-profit organization, Defendants-Appellees, and City and County of Honolulu, Honolulu Police Department, and Michael Nakamura, in his capacity as Chief of the Honolulu Police Department, Defendants-Appellants, and Liberty Partnership dba The Honolulu Star-Bulletin, an Arkansas limited partnership; Gannett Pacific Corporation dba The Honolulu Advertiser, a Delaware corporation; Burnham Broadcasting Co. dba, a Delaware corporation; TAK Communications, Inc. dba KITV, a Maryland corporation; and Lee Enterprises, Inc. dba, an Iowa corporation, Defendants-Intervenors, and State of Hawai'i, Office of Information Practices, Defendant-Intervenor (Civ.); and SOCIETY OF PROFESSIONALOF HAWAI'I CHAPTER, a non-profit organization, Plaintiff-Appellee, v. CITY AND COUNTY OF HONOLULU, Honolulu Police Department, and Michael Nakamura, in his capacity as Chief of the Honolulu Police Department, Defendants-Appellants (Civ.).
• Court: Hawaii Supreme Court

Page 386

927 P.2d 386

83 Hawai'i 378, 154 L.R.R.M. (BNA) 2373

STATE OF HAWAI'I ORGANIZATION OF POLICE OFFICERS (SHOPO), Plaintiff-Appellee, and Doe Police Officers 1 through 4, Plaintiffs-Intervenors-Appellants, v. SOCIETY OF PROFESSIONAL JOURNALISTS-UNIVERSITY OF HAWAI'I

CHAPTER, a non-profit organization, Defendants-Appellees,

and

City and County of Honolulu, Honolulu Police Department, and

Michael Nakamura, in his capacity as Chief of the

Honolulu Police Department, Defendants-Appellants,

and

Liberty [Newspapers Limited] Partnership dba The Honolulu

Star-Bulletin, an Arkansas limited partnership; Gannett

Pacific Corporation dba The Honolulu Advertiser, a Delaware

corporation; Burnham Broadcasting Co. dba KHON-TV2, a

Delaware corporation; TAK Communications, Inc. dba KITV, a

Maryland corporation; and Lee Enterprises, Inc. dba

KGMB-TV9, an Iowa corporation, Defendants-Intervenors,

and

State of Hawai'i, Office of Information Practices,

Defendant-Intervenor (Civ. No. 94-0547);

and

SOCIETY OF PROFESSIONAL JOURNALISTS-UNIVERSITY OF HAWAI'I

CHAPTER, a non-profit organization, Plaintiff-Appellee, v. CITY AND COUNTY OF HONOLULU, Honolulu Police Department, and Michael Nakamura, in his capacity as Chief of the

Honolulu Police Department,

Defendants-Appellants (Civ.

No. 94-0657).

No. 19583.

Supreme Court of Hawai'i.

Nov. 15, 1996.

Michael J. Green (David J. Gierlach with him on the briefs), Honolulu, for SHOPO

Michael A. Lilly of Ning, Lilly & Jones, Honolulu, for Doe Officers 1 through 4.

Jeffrey S. Portnoy (Christopher I. L. Parsons with him on the briefs of Cades, Schutte, Fleming & Wright), Honolulu, for SPJ.

Debra A. Kagawa (former Deputy Corporation Counsel Daniel J. Kunkel on the briefs), Honolulu, for the City.

Moya T. Davenport Gray (Hugh R. Jones with her on the briefs), Honolulu, for OIP.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

MOON, Chief Justice.

These consolidated appeals ¹ all arise from the Society for Professional Journalists-University of Hawai'i Chapter (SPJ's) attempt, pursuant to Hawai'i Revised Statutes (HRS) Chapter 92F, to obtain records of disciplinary actions taken against employees of the Honolulu Police Department (HPD). The State of Hawai'i Organization of Police Officers (SHOPO) and plaintiffs-intervenors Doe Police Officers 1 through 4 (Doe Officers) brought an action for declaratory and injunctive relief against the City and County of Honolulu, the HPD, and HPD Chief Michael Nakamura [hereinafter, collectively, the City], seeking to enjoin the release of the information sought by SPJ [hereinafter, the SHOPO case]. SPJ and the State of Hawai'i Office of Information Practices (OIP) intervened as defendants in the SHOPO case. SPJ then filed a separate action against the same City defendants, requesting that the circuit court order the City to produce government records responsive to SPJ's requests [hereinafter, the SPJ case].

In Supreme Court No. 18867, the City appeals from the circuit court's order, in the SPJ case, granting summary judgment to SPJ and ordering the release of the records sought in SPJ's August 30, 1993 request for information. On appeal, the City contends that summary judgment was erroneously granted and that the City was not required by law to disclose the disciplinary records because: (1) the circuit court erroneously applied the 1993 amendment to HRS § 92F-14(b)(4) retroactively, and/or the suit was rendered moot by the 1995 amendment of that section; (2) it was impossible and/or unduly burdensome to comply with SPJ's request; and (3) HRS § 92F-14(b)(4) effects an unconstitutional invasion of police officers' rights to privacy.

SHOPO and the Doe Officers, in Supreme Court Nos. 19558 and 19571, respectively, appeal the circuit court's ruling, in the SHOPO case, that they are collaterally estopped from relitigating issues decided in the SPJ case. On appeal, SHOPO and the Doe Officers contend that, because they were not parties or in privity with parties in the SPJ case, collateral estoppel does not preclude them from relitigating the constitutionality of HRS § 92F-14(b)(4).

In Supreme Court No. 19583, OIP and SPJ appeal the circuit court's order denying OIP's motion for summary judgment, in which SPJ and the City joined, in the SHOPO case. On appeal, OIP and SPJ maintain that the court erred when it ruled that, under HRS Chapter 89, the provisions of the collective bargaining agreement (CBA) between SHOPO and the City supersede the disclosure provisions of HRS Chapter 92F. OIP and SPJ contend that, therefore, the confidentiality provision of the CBA, although disputed, does not raise a genuine issue of material fact and that they are entitled to judgment as a matter of law.

For the reasons stated below, we affirm in part and vacate in part the order granting SPJ's motion for summary judgment in the

[83 Hawai'i 383] SPJ case. We remand with instructions to the circuit court to enter an order modifying its earlier order by requiring the City to provide access to all records responsive to SPJ's October 28, 1993 request. We vacate the circuit court's order in the SHOPO case, granting in part and denying in part OIP's motion for summary judgment, and remand for entry of an order granting OIP's motion for summary judgment. On remand, SHOPO and the Doe Officers may relitigate the constitutionality of HRS § 92F-14(b)(4), recognizing, however, that the circuit court is bound by our decision on the merits rendered herein.

I. BACKGROUND

A. The Uniform Information Practices Act (Modified)

By enacting Hawai'i's Uniform Information Practices Act (Modified) (UIPA), codified at HRS Chapter 92F, the legislature sought to "provide[ ] a new framework for the resolution of the often competing public and privacy interests involved in terms of access to government records[,]" starting from the "shared view [of both the House and the Senate] that an open government is the cornerstone of our democracy." Conf. Comm. Rep. No. 112-88, in 1988 House Journal, at 817. The purpose of the UIPA is to "provide clear recognition of both its primary goal of ensuring access to government records and the constitutional right of privacy which must clearly be considered in every appropriate case." Id. HRS § 92F-2 (Supp.1992) describes these purposes and policies:

Purposes; rules of construction. In a democracy, the people are vested with the ultimate decision making power. Government agencies exist to aid the people in the formation and conduct of public policy. Opening up the government processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore the legislature declares that it is the policy of this State that the formation and conduct of public policy--the discussions, deliberations, decisions, and action of government agencies--shall be conducted as openly as possible.

The policy of conducting government business as openly as possible must be tempered by a recognition of the right of the people to privacy, as embodied in section 6 and section 7 of Article I of the Constitution of the State of Hawaii.

This chapter shall be applied and construed to promote its underlying purposes and policies, which are to:

(1) Promote the public interest in disclosure;

(2) Provide for accurate, relevant, timely, and complete government records;

(3) Enhance governmental accountability through a general policy of access to government records;

(4) Make government accountable to individuals in the collection, use, and dissemination of information relating to them; and

(5) Balance the individual privacy interest and the public access interest, allowing access unless it would constitute a clearly unwarranted invasion of personal privacy.

The UIPA imposes "[a]ffirmative agency disclosure responsibilities" and establishes the general rule that "[a]ll government records are open to public inspection unless access is restricted or closed by law." HRS § 92F-11 (Supp.1992). There are five exceptions to this general rule enumerated in HRS § 92F-13. The instant case requires application of HRS § 92F-13(1), excepting from the general disclosure requirement "[g]overnment records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy[.]" The conference committee's explanation of this provision, which it "intended to serve as a clear legislative expression of intent should any dispute arise as to the meaning of these provisions[,]" is that, "[o]nce a significant privacy interest is found, the privacy interest will be balanced against the public interest in disclosure. If the privacy interest is not 'significant,' a scintilla of public interest in disclosure will preclude a finding of a clearly unwarranted invasion of Examples of information in which an individual has a "significant privacy interest" are enumerated in HRS § 92F-14(b). The crux of the instant appeals is HRS § 92F-14(b)(4) (Supp.1992) and its subsequent amendments. On July 1, 1989, the effective date of the UIPA, HRS § 92F-14(b)(4) provided in relevant part that an individual has a significant privacy interest in "[i]nformation in an agency's personnel file, ... except information relating to the status of any formal charges against the employee and disciplinary action taken [.]" Id. (emphasis added).

                [83 Hawai'i 384] personal privacy."   Conf. Comm.  Rep. No. 112-88, in 1988 House Journal, at 817-18
                

In order "to clarify what individually identifying information about employees may be disclosed upon request, and at what stage of the disciplinary process such disclosure may occur," Sen. Stand. Comm. Rep. No. 273, in 1993 Senate Journal, at 916, the legislature adopted Act 191, which amended HRS § 92F-14(b)(4) to specify that an individual does not have a significant privacy interest in:

The following information related to employment misconduct that results in an employee's suspension or discharge:

(i) The name...