ORIGINAL PROCEEDING (CR. NO. 15-1-1338)
RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ., AND
CIRCUIT JUDGE VIOLA, IN PLACE OF NAKAYAMA, J., RECUSED
Nick Grube filed a petition for writs of prohibition and
mandamus (petition) to obtain access to judicial records and
documents related to a circuit court criminal proceeding held
on September 9, 2016. These court documents and records were
sealed, and have remained sealed, by a series of circuit
court orders. The petition also seeks an order prohibiting
the circuit court judge from requiring Grube to retain an
attorney in order to assert a constitutional right of access
to judicial records.
our review of the procedures employed by the circuit court,
we conclude that the court did not provide adequate notice
and opportunity for interested persons objecting to the
sealing to be heard prior to issuing its order and failed to
sufficiently articulate the reasoning supporting the order in
its findings. In addition, upon reviewing the sealed records
and documents, we hold that the substantive requirements for
sealing were not met in this case because the record fails to
demonstrate a compelling need sufficient to overcome the
public's constitutional right of access.
further hold that, because the constitutional right of access
inheres in every member of the public and Grube asserted this
interest as an individual, Grube had a right to represent
himself in the unsealing proceedings. The circuit court
therefore also erred by refusing to allow Grube to appear pro
se and requiring him to obtain counsel.
we grant the petition and order that the circuit court unseal
the documents--provided, however, that the effective date of
our directive shall be ten days after the filing of this
opinion, unless within the ten days the State requests a
hearing to provide additional evidence to demonstrate that
the documents or some portion thereof must remain sealed to
serve a governmental interest of sufficient gravity to
overcome the public's constitutional right of access.
Following any such hearing, the circuit court shall promptly
prepare specific findings in conformance with the substantive
requirements set forth in this opinion if these requirements
have been met; otherwise our order shall take immediate
effect. We further order that Grube be permitted to represent
himself in any further proceedings on this matter.
The Criminal Case
Ahn, a Honolulu police officer, and Tiffany Masunaga, his
girlfriend, were charged by indictment in the Circuit Court
of the First Circuit (circuit court) with multiple
drug-related offenses on August 26, 2015. Ahn has since
pleaded no contest and been sentenced to a sixty-day jail
term as a condition of a four-year probationary term. By
contrast, the public record indicates that Masunaga's
case is still pending as of this filing, and no disposition
of the charges is reflected.
Sealing of Records, Files, and Proceedings Relating to the
September 9, 2016 Hearing
Friday, September 9, 2016, the circuit court held a hearing
scheduled to begin at 4:00 p.m., the nature and scope of
which is not discernible from the public
record. Following the proceeding, the circuit
court entered an order sealing the entire legal file in the
case. On September 16, the court filed a second order
superseding its September 9 sealing order.
on October 11, 2016, the circuit court issued a third order
setting aside its September 9 and September 16 sealing
orders. The court concluded that "[u]pon further review
. . . the prior orders were overly broad in that they
resulted in the sealing of the entire legal file pertaining
to both Defendants." The court redefined the scope of
the previous order to seal "those documents, court
minutes, transcripts and other information relating to the
September 9, 2016 proceeding, " including the two
previous orders that it had set aside.
October 11 order, the circuit court stated that it had been
advised that the proceedings in this case related to
potentially one or more ongoing investigations. Without
providing further details, the court concluded that public
disclosure of the September 9, 2016 proceeding was
substantially likely to interfere with these ongoing
investigations and that less drastic alternatives to
partially sealing the record were not viable to maintain the
integrity of the law enforcement operations. The court thus
held that the "the public's right of access must
yield to the compelling investigatory needs of law
enforcement." The court further directed the State and
Masunaga to timely inform it when circumstances change such
that rescinding the order would be appropriate.
result of the court's order, all documents and
information relating to the September 9, 2016 hearing
remained fully sealed and inaccessible to the public,
including the two previous sealing orders.
Motion to Unseal Records
September 29, 2017, Grube, a reporter for Honolulu Civil
Beat, Inc. (Civil Beat), filed a motion to unseal
"whatever documents were sealed" by the October 11,
2016 order. The motion was based on the "constitutional
right of access provided by the First Amendment of the U.S.
Constitution and article I, section 4 of the Hawai'i
October 31, 2017 Hearing
hearing on the motion to unseal was held on October 31, 2017.
At the opening of the hearing, Grube identified himself as
"Nick Grube, Honolulu Civil Beat." When the court
then asked if he was representing Civil Beat's interest
in the matter, Grube responded "Uh-huh." The court
explained to Grube that under Hawai'i law, business
entities must be represented by an attorney. Grube objected,
stating that he made the motion on his own and would like to
proceed pro se. Citing the manner in which the
motion had been captioned,  the court declined to allow Grube
to represent himself: "[A]lthough you, yourself, may be
partially making this request, it was filed under the caption
you, as representing Civil Beat." The court continued
the hearing to November 7, 2016, instructed Grube to make
inquiries as to whether Civil Beat would retain an attorney,
and ordered the State and the defendants to file responses to
Grube's motion to unseal.
Responses to Motion to Unseal
and Ahn filed statements of no opposition to Grube's
motion. Masunaga indicated that she had not been fully
advised by her prior counsel regarding the motion to seal and
had not given prior counsel permission to make
representations regarding the motion on her behalf. She also
stated that she believes the sealing request was made to
protect certain individuals related to the prosecutor then
assigned to the case, whom her prior counsel was also
representing in a separate criminal matter in federal court.
State filed an opposition to Grube's motion, arguing that
the circuit court properly identified the State's
compelling interest in preserving the integrity of
investigations and sufficiently tailored its order to serve
that interest. The opposition included a declaration by a
deputy prosecuting attorney averring that the investigations
identified in the sealing order remained
November 7, 2017 Hearing on the Motion to Unseal
November 7, 2017, the court held the continued hearing on the
motion to unseal. At the outset of the hearing, Grube,
through his counsel, again objected to the circuit court
requiring him to retain counsel. Counsel clarified that he
was representing Grube in his personal capacity and not Civil
Beat, and he further stated that Grube was asserting his
personal constitutional right of access. The court responded
that the contents of the motion and the manner in which it
was captioned led the court to believe Grube was representing
Civil Beat's interests, which only a licensed attorney
was permitted to do under relevant Hawai'i law.
the unsealing motion, the court engaged the deputy
prosecuting attorney appearing for the State in the following
THE COURT: . . . [F]irst of all, is the - is - are there one
or more investigations that are currently active and ongoing
that relate to the instant case?
[PROSECUTOR]: Yes, your Honor.
THE COURT: And the information and documents that were
previously sealed by virtue of the Court's October 11,
2016 order, do these materials and information, do they
relate to these one or more investigations?
[PROSECUTOR]: Yes, your Honor.
THE COURT: All right. And in your view, would disclosure of
those sealed materials substantially interfere with or have
an adverse impact on any of these investigations?
[PROSECUTOR]: Potentially very serious and adverse, your
THE COURT: All right. And I'm going to ask you: In what
way or how? I'm not asking you right now for the
specifics as far as that goes, but I need to understand a
little bit more in terms of how you believe -- if you can
explain how disclosure would detrimentally impact those
investigations. And, basically, without getting into the
specifics, for example, I think Mr. Grube's filing and
the case authority is fairly clear.
. . . [D]o you have any concerns about potential targets of
these -- this or these investigations becoming informed about
[PROSECUTOR]: Yes, your Honor. Generally, yes.
THE COURT: And how would that pose a problem? I don't
want to presume anything.
[PROSECUTOR]: Your Honor, they could either flee or destroy
evidence. We would also be concerned about safety of
THE COURT: And do you have any -- any sense for how much
longer these investigations or an investigation is
anticipated to take, if you know?
[PROSECUTOR]: I do not know, your Honor. All I can say is
that it is ongoing.
then argued through his attorney that the mere assertion of
an ongoing investigation is not sufficient to override the
public's constitutional right of access to judicial
records and proceedings. Rather, Grube explained, the State must
provide evidence demonstrating an active investigation to
which disclosure would pose clear potential harm, which the
court may then verify through in-camera review.
urged the court to examine more carefully the State's
justification for sealing in this case, pointing to
Masunaga's statement of no opposition in which she
disclaimed any interest in sealing the documents and stated
her belief that the motion was intended to protect
individuals associated with the previously assigned
prosecutor. Given Masunaga's personal indifference to the
disclosure, Grube argued, the safety of witnesses in the case
was not a valid concern. Grube also requested that the court
take judicial notice of the federal criminal case against the
prior prosecutor, in which the U.S. Attorney had argued that
the prosecutor and Masunaga's prior counsel had a history
of improperly exchanging confidential investigatory
information. Grube ...