Haw. Org. of Police Officers v. City & Cnty. of Honolulu

149 Hawai‘i 492

494 P.3d 1225

State of Hawaii ORGANIZATION OF POLICE OFFICERS, exclusive representative for Bargaining Unit 12, Police, Plaintiff-Appellant/Cross-Appellee,

v. CITY AND COUNTY OF HONOLULU, Defendant/Cross-Claim Defendant-Appellee/Cross-Appellee,andHonolulu Civil Beat, Inc., Intervenor-Defendant/Cross-Claimant-Appellee/Cross-Appellant.

SCAP-19-0000450

Supreme Court of Hawai‘i.

SEPTEMBER 17, 2021

Keani Alapa (Vladimir Devens with him on the briefs) for appellant

Robert Brian Black (Lisa Emily Engebretsen with him on the briefs) for cross-appellant

Duane W. H. Pang (Paul S. Aoki and Molly A. Stebbins with him on the briefs) for appellee

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND CIRCUIT JUDGE CAHILL, IN PLACE OF POLLACK, J., RECUSED

OPINION OF THE COURT BY RECKTENWALD, C.J.

I. INTRODUCTION

The Uniform Information Practices Act (UIPA) promotes government transparency and accountability by requiring state agencies to make their records available for public scrutiny. Hawai‘i Revised Statutes (HRS) § 92F-2 (2012) ; HRS § 92F-11(a) (2012). However, "[t]he 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 ... of article I of the [Hawai‘i Constitution.]" HRS § 92F-2. Accordingly, UIPA mandates disclosure of public records but furnishes an exception for "[g]overnment records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy[.]" HRS § 92F-13(1) (2012).

This case requires us to apply this exception to records about police misconduct. We have recognized a "compelling public interest in instances of police misconduct given the importance of public oversight of law enforcement." Peer News LLC v. City & Cty. of Honolulu, 138 Hawai‘i 53, 74, 376 P.3d 1, 22 (2016). But under UIPA, the public's interest must be balanced against any countervailing privacy interests. HRS § 92F-14(a) (2012). Here, plaintiff State of Hawaii Organization of Police Officers (SHOPO) sued under UIPA to prevent the disclosure of certain police misconduct records, invoking the privacy exception. Preliminarily, we hold that there is no private cause of action to prevent, as opposed to compel, the release of public records under UIPA. The Circuit Court of the First Circuit (circuit court) correctly dismissed SHOPO's UIPA claims for that reason. It erred, however, by conflating the constitutional privacy right with the statutory privacy interests codified in UIPA; the core protections of the Hawai‘i Constitution remain unaltered when the legislature chooses to extend greater protections than article I, section 6 requires.

Nonetheless, we hold that UIPA requires the release of the requested records. This issue compels us to revisit two cases in which we have previously considered the required scope of disclosure of police misconduct records: State of Hawai‘i Organization of Police Officers v. Society of Professional Journalists – University of Hawai‘i (SHOPO v. SPJ ), 83 Hawai‘i 378, 927 P.2d 386 (1996), and Peer News. While SHOPO v. SPJ made clear that police officers did not enjoy a constitutional privacy interest in their misconduct records, Peer News acknowledged that the legislature had recognized a significant privacy interest by statute. Act 47, however, subsequently rescinded that recognition. 2020 Haw. Sess. Laws Act 47, § 1 at 364. We apply Act 47 here, and to the extent the records fall within the categories enumerated by HRS § 92F-14(b)(4)(B)(i)-(v) (2012) (excepting certain kinds of misconduct information from the general privacy interest in a personnel file), SHOPO v. SPJ’s holding applies – only a scintilla of public interest will compel disclosure, a threshold easily surpassed here. To the extent the records fall outside those categories, the balancing test prescribed by Peer News applies. We agree with the circuit court that, applying the Peer News test, the public interest in disclosure outweighs the significant privacy interest at stake. Moreover, SHOPO's challenges to the procedures employed by the circuit court and the City, and to the circuit court's application of the balancing test, are unconvincing. We accordingly affirm the circuit court's judgment mandating the records’ release.¹

II. BACKGROUND

In September 2014, video from a restaurant's surveillance camera surfaced and was widely disseminated; the video appeared to show, and was widely reported as portraying, Honolulu Police Department (HPD) Sergeant Darren Cachola in a physical altercation with a woman.² In the aftermath of the video, Sergeant Cachola was terminated from HPD. But after arbitration, he was reinstated with back pay, and the disciplinary action was reduced to a suspension.

On February 22, 2018, Civil Beat requested that the City release "the arbitration decision involving Darren Cachola" pursuant to UIPA. According to SHOPO's complaint, HPD notified SHOPO that it was considering releasing the records on April 12, 2018; on April 14, 2018, SHOPO wrote to the Chief and Deputy Chief of HPD to voice its "strenuous[ ] object[ion]" to the records’ release. HPD officials subsequently informed SHOPO that "the public's interest in the subject records outweighed the privacy interest of [the] officers" and that it intended to release the records in redacted form.

A. Circuit Court Proceedings

1. SHOPO's Complaint

SHOPO sued the City in the circuit court.³ The complaint requested declaratory and injunctive relief under the Hawai‘i Constitution, UIPA, and the collective bargaining agreement (CBA) between SHOPO and the City.⁴ SHOPO alleged that the release of information related to an officer's suspension, including the arbitration decision which ordered his reinstatement, would violate the officer's right to privacy. Specifically, SHOPO's complaint stated that both the "informational privacy" protection enshrined in article I, section 6 of the Hawai‘i Constitution⁵ and UIPA's statutory protections in HRS §§ 94F-13⁶ and 92F-14(b)⁷ precluded the City from releasing those records to the public.

SHOPO also challenged the lack of "written confirmation or explanation" about HPD's application of the Peer News balancing test and the basis for the City's conclusion that the public interest outweighed the privacy interest here. The City's "failure to provide a written explanation" regarding the balancing test "stripped SHOPO and its affected members with their right of appeal to the [Office of Information Practices (OIP)] or Circuit Court," citing HRS § 92F-42 (2012) ("The director of the [OIP] ... [s]hall, upon request, review and rule on an ... agency's granting of access[.]"). Further, SHOPO stated that the CBA between SHOPO and the City was violated by the attempt to release the records because the CBA – which is "consistent with the right to privacy under Hawaii's Constitution and the UIPA" - required the City to keep confidential all discipline and dismissal matters.

Accordingly, SHOPO requested: (1) "a declaration that Defendant City's decision to release the subject confidential and private information is a violation of the individual police officers’ privacy rights and in violation of [UIPA]"; (2) "a declaration that Defendant City's failure to provide SHOPO and its members with information on how it reached its conclusion ... stripped SHOPO and its affected members [of] their right of appeal to the OIP or Circuit Court" and likewise violated UIPA; (3) "a declaration of law that the right to privacy and the UIPA precludes and prohibits the release of any information regarding HPD officers who were the subject of discipline, unless those officers have exhausted all their administrative remedies and have been discharged due to disciplinary infractions"; and (4) "temporary, preliminary and permanent injunctive relief to prevent and enjoin Defendant City from disclosing the requested information."⁸

2. August 13, 2018 Order

Civil Beat was allowed to intervene and moved to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted or, alternatively, for summary judgment (Motion). The City joined in the Motion. Civil Beat argued that SHOPO failed to state a claim for a constitutional violation because "police officers do not have a constitutional right of privacy against disclosure of disciplinary suspension records." Civil Beat further contended that UIPA furnished no private right of action to parties like SHOPO who "seek[ ] to withhold records from the public," and therefore, the court lacked subject matter jurisdiction. "The UIPA is not a confidentiality law that confers rights on any third party to conceal government information from public view," Civil Beat contended, but it argued that UIPA compelled the documents’ release in any event.

SHOPO opposed the Motion, arguing that "police officers have a ‘significant privacy interest’ in their disciplinary suspension records," and those records "must be kept private unless the public's interest in disclosure outweighs the privacy interest of the individual police officer." SHOPO contended it was permitted to enforce UIPA because it had standing to do so. It also disagreed with the contention that UIPA is not a confidentiality law; as a result, SHOPO argued it could bring this suit because a purpose of UIPA is to assure open access in balance with individual privacy rights.

The circuit court granted the Motion "to the extent [SHOPO]’s claim is based on a violation of the [UIPA]" and denied the Motion in all other respects (August 13, 2018 Order). In the August 13, 2018 Order, the court concluded that "[SHOPO] has no private cause of action for disclosure of government records under the UIPA." However, the circuit court "f[ound] SHOPO has a cause of action and standing to assert the constitutional privacy claim." It ordered the City to produce the documents for in camera review.

3. September 28, 2018 Order

SHOPO moved to ...