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Oahu Publications Inc. v. Takase

Supreme Court of Hawaii

December 12, 2016

OAHU PUBLICATIONS INC., dba The Honolulu Star-Advertiser, a Hawai'i corporation, Petitioner,
v.
THE HONORABLE BARBARA T. TAKASE, Judge of the District Court of the Third Circuit, North and South Hilo Division, State of Hawai'i, Respondent Judge, and THE STATE OF HAWAI'I and ETHAN FERGUSON, Respondents.

         ORIGINAL PROCEEDING (CR. NO. 16-1-000030)

          Jeffrey S. Portnoy, John P. Duchemin for petitioner

          Douglas S. Chin, Patricia Ohara, and Robyn B. Chun for respondent the Honorable Barbara T. Takase

          M. Kanani Laubach for respondent Ethan Ferguson

          Ha'aheo M. Kaho'ohalahala for respondent State of Hawai'i

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          POLLACK, J.

         This case requires us to consider the procedures that Hawai'i courts should follow when an individual's personal information has been included in a publicly accessible document that was filed in violation of Rule 9 of the Hawai'i Court Records Rules (HCRR).

         I. BACKGROUND

         On January 7, 2016, Ethan Ferguson, a law enforcement officer for the Hawai'i Department of Land and Natural Resources (DLNR), was taken into custody pursuant to a warrantless arrest and charged with five counts of sexual assault. Ferguson's arrest was widely reported in the media.

         On January 7 and 8, 2016, the State of Hawai'i filed in the District Court of the Third Circuit, South Hilo Division (district court) an application for judicial determination of probable cause for Ferguson's warrantless arrest and for his extended restraint (collectively, Ferguson Probable Cause Application). The Ferguson Probable Cause Application contained the full name and residential address of the minor complainant, as well as the full social security numbers of individuals depicted in a photographic lineup.[1] The Ferguson Probable Cause Application was signed by Judges Lloyd Van De Car on January 7, 2016, and Harry P. Freitas on January 8, 2016. Upon judicial approval, the documents became part of the record of the case and could have been reproduced for public distribution by court personnel if a request had been made for copies.

         On January 14, 2016, the State filed an ex parte motion with the district court requesting that the court seal the Ferguson Probable Cause Application to protect the minor complainant's full name, which had been included in the filing. The motion stated in relevant part as follows:

The grounds for this Motion are the Application and Declaration for Judicial Determination of Probable Cause for Warrantless Arrest and for the Extended Restraint of Liberty of Warrantless Arrestee and Attachments Filed on January 7, 2016 and January 8, 2016, contained the victim's full name.
The State, therefore, applies to this Honorable Court for an order requiring that the herein mentioned Application and Declaration for Judicial Determination of Probable Cause for Warrantless Arrest and for the Extended Restraint of Liberty of Warrantless Arrestee and Attachments Filed on January 7, 2016 and January 8, 2016, be sealed in an envelope and that disclosure of its contents be denied to any and all persons requesting such information until such time as the court deems it necessary to be disclosed.

         The same day, Judge Takase granted the State's request without hearing and ordered the Ferguson Probable Cause Application to "be sealed in an envelope and that disclosure of its contents be denied to any and all persons requesting such information until such time as the Court deems it necessary to be disclosed."

         One week later, on January 21, 2016, the State submitted a Notice of Filing to the district court with an attached redacted version of the Ferguson Probable Cause Application (Redacted Application). The Redacted Application was identical to the sealed Ferguson Probable Cause Application, except that the State had crossed out the minor complainant's name and address as well as the social security numbers of the individuals pictured in the photographic lineup.

         II. THE PETITION

         On January 22, 2016, Oahu Publications Inc., dba the Honolulu Star-Advertiser (Oahu Publications), filed a petition requesting this court to issue two writs: (1) a writ of prohibition prohibiting Judge Takase from enforcing her order sealing the Ferguson Probable Cause Application in State v. Ferguson, Cr. No. 16-1-000030 (Ferguson case); and (2) a writ of mandamus ordering Judge Takase to (a) make public the contents of the sealed Ferguson Probable Cause Application subject to HCRR Rule 9.1 (2012), and (b) refrain from future document sealings in the Ferguson case and any other criminal proceeding without first providing notice, an opportunity to be heard, and specific factual findings indicating the reason for preventing public access to the documents. In its petition, Oahu Publications contends that such procedures are required by the First Amendment to the United States Constitution, article 1, section 4 of the Hawai'i Constitution, and this court's decision in Oahu Publications Inc. v. Ahn, 133 Hawai'i 482, 331 P.3d 460 (2014). On January 28, 2016, this court directed Judge Takase, the State, and Ferguson to answer the petition.

         Both the State and Judge Takase timely answered the petition and argue that it should be denied as moot.[2] The State indicates that Oahu Publications' petition was submitted one day after the Redacted Application had already been filed with the district court. Similarly, Judge Takase submits that the filing of the Redacted Application renders Oahu Publications' claims moot and that its request for a writ of mandamus is unnecessary.[3]

         With this court's permission, Oahu Publications filed a reply memorandum to address the mootness arguments submitted by Judge Takase and the State. Oahu Publications initially states that since it is not a party to the underlying proceeding, it is not on the service list and, therefore, did not know that a redacted document had been submitted to the court at the time that it filed its petition. Oahu Publications also maintains that the State's belated efforts to make publicly available the Ferguson Probable Cause Application do not render its petition moot because of the applicability of the public interest and "capable of repetition, yet evading review" exception to the mootness doctrine. Oahu Publications contends that the district court's unconstitutional sealing procedure is capable of repetition but likely to evade review and that an authoritative determination of the proper sealing procedure is highly desirable. This exception to the mootness doctrine, according to Oahu Publications, is particularly necessary in the context of the First Amendment right to public criminal trials because they are generally short in duration and thus difficult to timely challenge.

         Supplemental Briefing

         This court entered an order directing the parties to file supplemental briefs regarding "the procedures that a court should follow when an application for judicial determination of probable cause for warrantless arrest that has been submitted or filed with the court includes confidential information subject to Rule 9 of the Hawai'i Court Records Rules." The order requested that the briefs address the timing and necessity of a court hearing, the manner of providing notice thereof, procedures with regard to a motion to seal or redact, and the applicability of HCRR Rule 9.1(a). The parties timely responded.[4]

         Oahu Publications acknowledges that confidential personal information subject to HCRR Rule 9 should not be disclosed in a publicly filed probable cause application. Oahu Publications also acknowledges that a court that receives a probable cause application that mistakenly or inadvertently includes such information should take prompt steps to sequester the confidential information and prevent its dissemination. However, Oahu Publications contends that the procedure for determining that the information is confidential must follow the principles set forth in Ahn, 133 Hawai'i 482, 331 P.3d 460, and respect the public's right to access the non-confidential portion of the filing. Specifically, Oahu Publications maintains that the trial court must follow a procedure that, while allowing for swift or even immediate removal of confidential personal information, (1) provides notice of the sealing and an opportunity to object via hearing as soon as practicably possible, and (2) provides specific factual findings indicating the reason for preventing access to a presumptively public document.

         Oahu Publications takes no position on what constitutes sufficient notice in any given circumstance. It does, however, recognize that notice may need to occur after the court takes action in order to immediately protect disclosed information that should be protected pursuant to HCRR Rule 9.1. To this end, Oahu Publications suggests that, as soon as reasonably possible, the court should notify the public of the sealing with a detailed explanation of the reasons for the sealing and provide a retroactive opportunity to object. The court, according to Oahu Publications, should then have a hearing on the sealing for the parties to present their objections and provide a detailed and timely explanation for its decision to seal.

         The State argues that if a court is aware that a public document contains confidential personal information, the court should have the ability to immediately seal the document until it can be properly redacted in accordance with HCRR Rule 9 or redact the information from the document itself. According to the State, an order sealing the document, the act of redacting the document, or the newly filed redacted document can serve as notice to the parties and the public and, if there is an objection, a motion may be filed to address any concerns. At that point in time, the State indicates that the court should hold a hearing and determine if the document should remain sealed.

         The State also provides other procedures that may be utilized to correct filed documents containing personal information. First, the State suggests that any party or person who has a lawful interest may file a motion and proposed order to seal the document along with a corrected or redacted version of the document. The State explains that the simultaneously filed corrected document would allow the public to have access to the record, while also protecting the confidential personal information and reducing the need for a hearing. If a party or member of the public has an objection to the possible sealing or redaction, the State maintains that a motion may be filed and the district court should schedule a hearing. The State explains that in any such scenario, the personal information should be protected until after a hearing or until the district court determines that the information should be made public.

         Like the State, Ferguson contends that a court should take prompt action to seal or redact any information that is deemed confidential and subject to HCRR Rule 9. Ferguson further suggests that the following steps should be taken: (1) any party may immediately file an ex parte motion to seal the document along with a redacted version of the document; and (2) if the motion is granted, the court should then file the redacted document and an order stating the reasons for the sealing and redaction. If anyone objects to the court order granting the ex parte motion, Ferguson submits that the court should then set a hearing.

         III. DISCUSSION

         A. ...


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