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Peer News LLC v. City & County of Honolulu

Supreme Court of Hawaii

June 9, 2016

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.

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-14-0000889; CIV. NO. 13-1-2981-11)

          RECKTENWALD, C.J., NAKAYAMA, AND WILSON, JJ., CIRCUIT JUDGE CRABTREE, IN PLACE OF McKENNA, J., RECUSED, WITH POLLACK, J., CONCURRING SEPARATELY

          OPINION

          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 court[1] 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 regarding egregious misconduct by police officers because:

Instances of misconduct of a police officer while on the job are not private, intimate, personal details of the officer's life . . . . They are matters with which the public has a right to concern itself. . . . If the off duty acts of a police officer bear upon his or her fitness to perform public duty or if the activities reported in the records involve the performance of a public duty, then the interest of the individual in "personal privacy" is to be given slight weight in the balancing test and the appropriate concern of the public as to the proper performance of public duty is to be given great weight. In such situations privacy considerations are overwhelmed by public accountability.

(Quoting Cowles Publ'g v. State Patrol, 748 P.2d 597, 605 (Wash. 1988)).[5]

         Thus, according to Civil Beat, even if police officers have a "significant privacy interest" in their disciplinary suspension records, this interest must nonetheless be weighed against the public interest in disclosure, and in this case, this public interest outweighs the officers' privacy interest.

         On January 9, 2014, the circuit court granted SHOPO's motion to intervene as a defendant. HPD and SHOPO each filed a memorandum in opposition to Civil Beat's MSJ.

         HPD argued that the plain language of HRS § 92F-14(b), as amended by Act 242, indicated that an HPD officer has a significant privacy interest in records related to employment misconduct where the officer was suspended, but not discharged. HPD asserted that the "legislative history of Act 242 shows that the legislature intended to conduct the balancing itself and conclude "as a matter of public policy that the privacy of the individual outweighs the public interest in disclosure with respect to the information sought by [Civil Beat] in this case."

         In SHOPO's memorandum in opposition to Civil Beat's MSJ, SHOPO made similar arguments to HPD's. SHOPO argued that because HRS § 92F-14 recognizes a "significant privacy interest" in information related to police officer misconduct not resulting in discharge, it "plainly and unambiguously exempts from disclosure the disciplinary records of county police officers who have not been discharged."

         The circuit court granted Civil Beat's MSJ, finding as follows:

Article I, Section 6 of the Hawai'i Constitution does not recognize a protected privacy interest in police misconduct resulting in suspension or discharge. The court interpreted Article I, Section 6 in light of the Supreme Court of Hawaii's decision [in SHOPO]. The Supreme Court of Hawai'i determined that police officers do not have a protected privacy interest in records of police misconduct that lead to suspension or discharge.
The supreme court also stated that "information regarding charges of misconduct by police officers, in their capacities as such, that have been sustained after investigation and that have resulted in suspension or discharge is not 'highly personal and intimate information' and, therefore, is not within the protection of Hawai'i's constitutional right of privacy." The court also went on to state: "The information that must be disclosed pursuant [to] HRS § 92F-14(b)(4)(B) regarding a public employee's employment-related misconduct and resulting discipline, is not 'highly personal and intimate information' and is, therefore, not within the scope of Hawai'i's constitutional right of privacy."
The UIPA cannot recognize a protected privacy interest in police officer misconduct because to do so would be to directly contravene the provision it implements, which is Article I, Section 6. Under Article I, Section 6, police officers have no protected privacy interest regarding on-duty misconduct that results in suspension or discharge, and the UIPA implements Article I, Section 6, as given in the SHOPO decision, which states "[t]he UIPA, and the challenged amendment by Act 191, implements article I, section 6 of the Hawai'i
Constitution . . . ." Thus, reading that language, the court concludes under SHOPO as [sic] there is no protected privacy interests regarding on-duty misconduct by police officers, therefore, public access interest would outweigh non-existent privacy interests in on-duty police misconduct.

         The court believes that this is supported in part on three grounds:

1. Looking at the purpose of the UIPA, which is geared towards disclosure;
2. That the Hawai'i Supreme Court certainly recognized that Act 242 would require only limited disclosure to those police officers that were discharged;
3. That the court finds that the State of Hawai'i [OIP] decision, Opinion Letter No. 97-1, was not erroneous.
[L]ooking at the SHOPO decision, it again appears to recognize that, there, Act 242 was about to limit disclosure of records just to discharged officers. The SHOPO court did begin its analysis centered specifically at Act 191, but then the supreme court went further in the analysis to consider, moreover, the history of Article I, Section 6 of the Hawai'i Constitution and went in-depth in a constitutional analysis of police misconduct. Accordingly, the Supreme Court of Hawai'i recognized the impact of Act 242 and chose to additionally and separately address its shortcomings under Article I, Section 6.
Based on the record and the analysis set forth above, Plaintiff's [MSJ] is GRANTED. Defendants are hereby ORDERED to open public inspection and copying by Plaintiff the requested records of twelve police officers identified in the October 4, 2013 letter.

(Internal citation omitted).

         SHOPO filed a notice of appeal, and on February 10, 2015, this court granted Civil Beat's application for transfer.[6] In its opening brief, SHOPO presents three points of error:

1. Whether the Circuit Court erred when it granted Plaintiff-Appellee Civil Beat's [MSJ] by ruling that Defendant-Appellee City was required to disclose the disciplinary information of the 12 police officers who were not discharged.
2. Whether the Circuit Court erred when it found that police officers that had not been discharged from their employment had no privacy interests in their disciplinary records in reliance of SHOPO v. SPJ, 83 Haw. 378, 927 P.2d 386 (1996).
3. Whether the Circuit Court erred when it found that OIP Op. 97-1 was not palpably erroneous.

         II. Standards of Review

         A. Summary judgment

         "On appeal, the grant or denial of summary judgment is reviewed de novo." Lales v. Wholesale Motors Co., 133 Hawai'i 332, 343, 328 P.3d 341, 352 (2014) (citing First Ins. Co. of Haw. v. A & B Props., Inc., 126 Hawai'i 406, 413, 271 P.3d 1165, 1172 (2012)). Furthermore,

summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and inferences drawn therefrom in the light most favorable to the party opposing the motion.

Id. (citing First Ins. Co. of Haw., 126 Hawai'i at 413-14, 271 P.3d at 1172-73).

         B. Statutory interpretation

The interpretation of a statute is a question of law reviewable de novo. When construing a statute, this court's foremost obligation is to be obtained primarily from the language contained in the statute itself. Where the statutory language is plain and unambiguous, this court's sole duty is to give effect to its plain and obvious meaning.
Implicit in the task of statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself; however, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.

McLaren v. Paradise Inn Hawai'i LLC, 132 Hawai'i 320, 327-28, 321 P.3d 671, 678-79 (2014) (citations omitted).

         Further, this court has stated that an appellate court

generally reviews questions of statutory interpretation de novo, but, in the case of . . . ambiguous statutory language, the applicable standard of review regarding an agency's interpretation of its own governing statute requires this court to defer to the agency's expertise and to follow the agency's construction of the statute unless that construction is palpably erroneous[.]

Gillan v. Gov't Emps. Ins. Co., 119 Hawai'i 109, 114, 194 P.3d 1071, 1076 (2008) (citing Vail v. Employees' Ret. Sys., 75 Haw. 42, 66, 856 P.2d 1227, 1240 (1993)) (citation, quotation marks, and brackets omitted).

         III. Discussion

         As explained below, the circuit court incorrectly concluded that police officers have a "non-existent" privacy interest in their disciplinary suspension records. SHOPO is correct that SHOPO v. SPJ is not dispositive because in Act 242, the legislature recognized a privacy interest in police officers' disciplinary records that was not applicable in SHOPO v. SPJ. Thus, Civil Beat cannot rely on the balancing conducted by this court in SHOPO v. SPJ. However, the language and legislative history of Act 242 indicate that even after a significant privacy interest is found, that interest must be weighed against the public interest in disclosure. Therefore, this case must be remanded to the circuit court to balance the public and privacy interests at stake to determine whether disclosure is appropriate.

         A. Act 242 created a "significant" personal privacy interest in records of disciplinary suspension, which is broader than the right of privacy recognized in SHOPO v. SPJ

         SHOPO first argues that the circuit court erred in finding that police officers had a "'non-existent privacy interest' in their disciplinary records, " because this finding is contrary to the language of Act 242. Specifically, SHOPO asserts that HRS § 92F-14(b)(4)(B)(v) explicitly provides that police officers have a "'significant privacy interest' in their disciplinary records that do not involve a discharge from their employment."

         SHOPO further argues that SHOPO v. SPJ is not controlling in this case because this court's analysis in SHOPO v. SPJ was limited to an analysis of a prior version of the UIPA, before Act 242 became effective. SHOPO also maintains that the SHOPO v. SPJ court recognized that, under article I, section 6 of the Hawai'i Constitution, the legislature has the authority to define the scope of the protected right of privacy, and that when the legislature enacted Act 242, it broadened the protections of the right of privacy to encompass police officers' disciplinary suspension records.

         Civil Beat does not dispute that UIPA recognizes a significant privacy interest in disciplinary information in police officers' personnel files unless the officer is discharged, but argues that this "does not mean police officers have a right to insist that HPD withhold all such files." According to Civil Beat, even these "significant privacy interests" must be balanced against the public interest in disclosure.

         Civil Beat further argues that this court and the OIP have already weighed those interests and determined that the public interest in disclosure outweighs the police officers' privacy concerns. Essentially, Civil Beat argues that because the UIPA implements the constitutional right of privacy, the privacy interest in disciplinary suspension records recognized by UIPA is equivalent to the constitutional right of privacy under article I, section 6. Thus, according to Civil Beat, even though this court in SHOPO v. SPJ was applying a prior version of the UIPA, when the court balanced the ...


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