Peer News LLC v. City & Cnty. of Honolulu

• Decision Date: 09 June 2016
• Docket Number: No. SCAP–14–0000889.,SCAP–14–0000889.
• Citation: 376 P.3d 1,138 Hawai'i 53
• Court: Hawaii Supreme Court
• Parties: PEER NEWS LLC dba Civil Beat, Plaintiff–Appellee, v. CITY & COUNTY OF HONOLULU and Honolulu Police Department, Defendants–Appellees, and State of Hawai‘i Organization of Police Officers, Intervenor–Defendant–Appellant.

138 Hawai'i 53

376 P.3d 1

PEER NEWS LLC dba Civil Beat, Plaintiff–Appellee,

v. CITY & COUNTY OF HONOLULU and Honolulu Police Department, Defendants–Appellees,andState of Hawai‘i Organization of Police Officers, Intervenor–Defendant–Appellant.

No. SCAP–14–0000889.

Supreme Court of Hawai‘i.

June 9, 2016.

Keani Alapa and Vladimir Devens, Honolulu, for intervenor-defendant-appellant.

Donna Y.L. Leong, Paul S. Aoki, Duane W.H. Pang, Honolulu, and Nicolette Winter, for defendants-appellees, City and County of Honolulu and Honolulu Police Department.

Robert Brian Black, for plaintiff-appellee, Peer News LLC.

Jeffrey S. Portnoy and John P. Duchemin, Honolulu, for amicus curiae, The Reporters Committee, for Freedom of the Press.

RECKTENWALD, C.J., NAKAYAMA, and WILSON, JJ., Circuit Judge CRABTREE, in place of McKENNA, J., recused, with POLLACK, J., concurring separately.

Opinion of the Court by RECKTENWALD, C.J.

This case arises out of Civil Beat's request for the disciplinary records of twelve Honolulu Police Department (HPD) officers who were suspended for at least twenty days for various types of misconduct. HPD denied the request, and Civil Beat filed suit. The State of Hawai‘i Organization of Police Officers (SHOPO) intervened as a defendant. The circuit court¹ found in favor of Civil Beat, ordering HPD to disclose the records, and SHOPO appealed.

The circuit court based its conclusion on this court's 1996 decision, State of Hawai‘i Organization of Police Officers v. Soc'y of Professional Journalists–University of Hawai‘i Chapter, 83 Hawai‘i 378, 927 P.2d 386 (1996) (hereinafter SHOPO v. SPJ ), and on Office of Information Practices (OIP) Opinion Letter No. 97–01 (Feb. 21, 1997). In SHOPO v. SPJ, this court held that under a prior version of Hawaii's Uniform Information Practices Act (UIPA), police officers had no privacy interest in their disciplinary suspension records, and thus HPD must disclose the records upon request. The OIP, in Opinion Letter No. 97–01, ruled that even though the legislature amended the UIPA in Act 242 to recognize a "significant privacy interest" in police officers' disciplinary suspension records, SHOPO v. SPJ still mandated disclosure of such records. Thus, the circuit court concluded that police officers have a "non-existent" privacy interest in their disciplinary suspension records.

We hold that SHOPO v. SPJ is not controlling. The legislature's amendments to the UIPA in Act 242, the plain language of the UIPA, and its legislative history demonstrate that police officers have a significant privacy interest in their disciplinary suspension records. Disclosure of the records is appropriate only when the public interest in access to the records outweighs this privacy interest.

The records requested by Civil Beat here involve cases of serious misconduct that reasonably could call into question the police officers' trustworthiness or fitness to perform their public duties. However, we cannot determine whether disclosure is appropriate given the limited factual record in this case. We therefore vacate the circuit court's judgment and remand to that court so it can review the records to determine whether the public interest outweighs the officers' significant privacy interests.

I. Background

A. Civil Beat's request for information

On October 4, 2013, Civil Beat sent a letter to the HPD Custodian of Records requesting records of disciplinary actions of twelve different police officers who were suspended for misconduct between 2003 and 2012. All of these disciplinary actions resulted in employee suspensions of at least twenty days. The suspensions involved the following types of misconduct:

1. Violation of HPD's electric gun policy and utilized malicious force (twenty day suspension);

2. Was untruthful during an investigation. Failed to maintain the confidentiality of the investigation (twenty day suspension); 3. Falsified a police report and was untruthful during the investigation (seventy-seven day suspension);

4. Hindered a federal investigation (six hundred twenty-six day suspension);

5. Pled guilty to criminal charges (twenty day suspension);

6. Fled the scene of a motor vehicle collision, failed to report the collision, and provided false information on the police report (twenty day suspension);

7. Falsified information in a motor vehicle collision. Failed to remain impartial during a motor vehicle collision investigation. Was untruthful during an administrative investigation (twenty day suspension);

8. Submitted a falsified report and fabricated the facts regarding the probable cause to conduct a traffic stop (twenty day suspension);

9. Willfully used physical force against another employee causing injury (twenty day suspension);

10. Involved in a motor vehicle collision while under the influence of alcohol. Fled the scene and falsely reported the vehicle stolen. Failed to update personal information (twenty day suspension);

11. Falsified police reports and expense vouchers. Misappropriated expense funds. Failed to submit evidence. Participated in illegal gambling. Was untruthful (thirty day suspension);

12. Assaulted another person and harassed the officer who was investigating the incident (twenty day suspension).²

Civil Beat requested the following information for each instance of misconduct resulting in a suspension:

For each incident, if the highest non-judicial grievance adjustment procedure timely invoked by the employee or the employee's representative has concluded and thirty days has elapsed following a written decision sustaining the suspension after that procedure, [Civil Beat] specifically requests a document or documents sufficient to provide the following information:

• The employee's name;

• The nature of the employment-related misconduct; •

HPD's summary of the allegations of misconduct;

• Findings of fact and conclusions of law; and

• The disciplinary action taken by the agency.

For all other incidents, [Civil Beat] specifically requests a document or documents sufficient to show the date(s) that the employee or the employee's representative invoked each step in the non-judicial grievance adjustment procedure. In addition, if the non-judicial adjustment procedure terminated for a reason other than a decision sustaining the suspension, [Civil Beat] specifically requests a document or documents sufficient to summarize the reason that the procedure concluded and to show the date that the procedure concluded. For documents responsive to this paragraph, [Civil Beat] agrees that HPD may redact the employee's name and other information that would disclose the employee's identity.

Thus, for cases where the highest grievance procedure timely invoked by the employee has concluded, and thirty days has passed following a written decision sustaining the employees' suspensions, Civil Beat requested information that included the employees' names. For all other cases, Civil Beat did not request the employees' names.

HPD denied Civil Beat's request in its entirety. To justify its denial, HPD cited to HRS § 92F–13(1)³ and HRS § 92F–14,⁴ and stated that Civil Beat's request was an "[u]nwarranted invasion of privacy," and that the "[i]ncidents did not result in discharge."

B. Prior proceedings

On November 7, 2013, Civil Beat filed a complaint in the circuit court seeking an order directing HPD to disclose all of the information Civil Beat sought in its October 4, 2013 letter. Civil Beat filed a motion for summary judgment (MSJ), arguing that after this court's decision in SHOPO v. SPJ, police officers have no constitutional privacy interest in their disciplinary records where the officers were suspended but not discharged. Civil Beat further argued that UIPA permits withholding government records on the grounds of personal privacy only if the individual has a constitutionally protected right of privacy. Thus, according to Civil Beat, HPD police officers have no privacy interest in their records of disciplinary suspensions.

Civil Beat also relied on a formal opinion of the OIP, Opinion Letter No. 97–01. In OIP Opinion Letter No. 97–01, the OIP first concluded that when the legislature amended the UIPA by enacting Act 242 in 1995, it intended "to balance the competing privacy and public interests in favor of keeping confidential information about suspended officers." Id. at 6. The OIP went on, however, to conclude that this court's decision in SHOPO v. SPJ "erodes the significant weight assigned by the Legislature to the suspended officer's privacy interest, as set out in Act 242" such that "only a ‘scintilla’ of public interest is enough to overcome this privacy interest in the balancing test." Id. at 8. The OIP also noted that arguably, the legislature was free to create a significant privacy interest in police officers' records of disciplinary suspensions, even if no constitutional privacy right existed, but that even if this were true, the interests still need to be weighed, and this court's ruling in SHOPO v. SPJ "tips the balance heavily toward finding that the public has a strong countervailing interest about suspended police officers." Id. at 8–9. The OIP therefore concluded:

Whether one finds that SHOPO eliminates the Legislature's finding of a significant privacy interest or whether the Legislature has the power to create the right, the result is the same—disclosure of information about suspended police officers cannot be found to constitute a clearly unwarranted invasion of personal privacy under the UIPA.

Id. at 9.

In its MSJ, Civil Beat argued that OIP's analysis was correct based on a plain reading of the UIPA, and that even if the UIPA is ambiguous, OIP's conclusion is entitled to deference.

In the alternative, Civil Beat argued that even if the UIPA does recognize a broader right of privacy than the constitution, the public interest in disclosure nevertheless outweighs the individual privacy interest. Civil Beat argued that the public has an overwhelming interest in the disclosure of disciplinary records...