High court
blocks release of
police names

A lower court cleared the way earlier
for misconduct disclosure

By Ian Lind
Star-Bulletin

To the casual observer, yesterday was just another seesaw day in a 6-year-old legal struggle over the public's right to know about police officers who misbehave.

It began with an early morning court hearing at which Circuit Judge Marie Milks rejected objections by the State of Hawaii Organization of Police Officers and cleared the way for public disclosure of information about Honolulu police officers who have been suspended for misconduct.

It ended, less than eight hours later, with a brief two-paragraph order from the state Supreme Court preventing city officials, at least temporarily, from releasing the information.

The order, signed by Associate Justice Steven H. Levinson and filed at 4:22 p.m., blocks disclosure until the court is able to review arguments raised by the police union.

The records of suspended officers were requested last month by the Honolulu Star-

Bulletin, and the city had planned on making the disclosure as early as today.

While attention was focused on the immediate arguments of attorneys representing the interests of the police, the public and the press, the case reflects a more important and fundamental tension between the courts and the Legislature, two key branches of government.

SHOPO attorney David G. Gierlach said the issue hinges on the Legislature's intent when it passed a 1995 law that seemed to make such records confidential.

"Everyone agrees that the Legislature intended to keep those records confidential," Gierlach said. "The Office of Information Practices (OIP) has an opinion that the new law might not accomplish that, but they are not a court. We're hoping the will of the Legislature, which in our view is the will of the people, is recognized and upheld by the Supreme Court."

OIP Director Moya Gray is confident that her agency's opinion favoring disclosure will eventually be upheld by the court.

"The Legislature had an opportunity to specifically and expressly declare the information confidential, but they didn't choose that method," Gray said.

Instead, the law requires a balancing between the police officers' privacy interests and the public interest in disclosure. "When the Legislature passed Act 242 in 1995, it required the decision maker to make that balance. When we weighed the interests involved, we came to the conclusion the information has to be disclosed."

The Legislature, responding to heavy public criticism, increased access to information about government in 1988 by passing major reforms, but more recently has chipped away at the law by creating a series of exceptions, including the 1995 law.

The rollback in reforms has come amid heavy lobbying by public employee unions who say their members would be unnecessarily and publicly embarrassed if information about misconduct, even serious misconduct, is disclosed.

Gray said her office put considerable emphasis on a November Supreme Court decision that Hawaii's constitutional right to privacy does not protect information about police wrongdoing that results in suspension or dismissal.

The court took a strong position favoring government openness in another decision late last year, strongly backing the state's "sunshine law," which requires government agencies to hold open meetings that are announced in advance.

In that case, involving the now-defunct Hawaii Space Development Authority, the court rejected technical objections by the state and adopted a strong position against government secrecy.