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From: [email protected]
Sent: Thursday, February 18, 2016 1:05 PM
To: [email protected];
Charter Commission
Subject: TESTIMONY submission
Attachments: 201602181704th19_9925462478165_proposal 23 testimony.pdf
Agenda Item* Item VII, Proposal 23
Name* R. Brian Black
Phone 808 - 531 - 4000
Email (required to sendconfirmation email)*
Your position on thesubject*
Support
Representing* Organization (Please fill in field below)
Organization Civil Beat Law Center for the Public Interest
Written Testimony N/A
Testimony Attachment Proposal 23 Testimony.pdf
Disclaimer* By checking this box, I understand that testimony submitted through thiswebsite is now a part of public record, including any information you mayhave furnished.
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700 Bishop Street, Suite 1701 Office: (808) 531-4000 Honolulu, HI 96813 Fax: (808) 380-3580 [email protected] Honolulu Charter Commission David Rae, Chair Kevin Mulligan, Vice Chair
RE: Testimony Supporting Proposal 23 Meeting: February 19, 2016
Dear Chair and Members of the Commission: My name is Brian Black. I am the Executive Director of the Civil Beat Law Center for the Public Interest, a nonprofit organization whose primary mission concerns solutions that promote government transparency. Thank you for the opportunity to submit testimony in support of Proposal 23, a Law Center proposal. This proposal is a housekeeping item. The existing Charter language predates the State public records law. As stated in the proposal, the State law on public records preempts the Charter; thus, a conforming amendment is appropriate. Proposal 23 fixes three issues:
• Public records must be available to all persons, not only citizens. Inconsistent with State law, the Charter only references access by citizens.
• No agency has absolute discretion to withhold records. Contrary to State law, the
Charter permits the Chief of Police and the Prosecuting Attorney to deny access to records without justification.
• Access to traffic records is outlined in detail by State law. HRS § 291C-20 dictates who
is entitled to access traffic records; there is no reason for the Charter to address that subject, especially after removal of the police/prosecutor exemption.
Thank you again for the opportunity to testify.
1
From: [email protected]
Sent: Thursday, February 11, 2016 2:31 PM
To: [email protected];
Charter Commission
Subject: TESTIMONY submission
Attachments: 201602111830th19_6510368413299_testimony proposal 23 open records final.pdf
Agenda Item* February 12, 2016 Meeting Agenda, Proposal 23
Name* Barbara Wong
Phone 8088474676
Email (required to sendconfirmation email)*
Your position on thesubject*
Oppose
Representing* Organization (Please fill in field below)
Organization State of Hawaii Organization of Police Officers
Written Testimony See attached.
Testimony Attachment Testimony Proposal 23 Open Records FINAL.pdf
Disclaimer* By checking this box, I understand that testimony submitted through thiswebsite is now a part of public record, including any information you mayhave furnished.
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SHOPO
PRESIDENT
Tenari R. Ma‘afala
VICE PRESIDENT
Malcolm Lutu
TREASURER
James "Kimo" Smith
SECRETARY
Michael Cusumano
DIRECTORS AT LARGE
Don Faumuina John Haina Erik Iinuma
HONOLULU CHAPTER CHAIR
Stanley Aquino
HAWAI‘I CHAPTER CHAIR
Darren Horio
KAUA‘I CHAPTER CHAIR
Jesse Guirao
MAUI CHAPTER CHAIR
Barry Aoki Main Office & Honolulu Chapter
1717 Hoe Street
Honolulu, Hawai‘i 96819-3125
Ph: (808) 847-4676 “84 SHOPO”
(800) 590-4676 Toll Free
Fax: (808) 841-4818
Hawai‘i Chapter Office
688 Kino‘ole Street, Room 220 B
Hilo, Hawai‘i 96720
Ph: (808) 934-8405
Fax: (808) 934-8210
Maui Chapter Office
1887 Wili Pa Loop, Suite #2
Wailuku, Hawai‘i 96793
Ph: (808) 242-6129
Fax: (808) 242-9519
Kaua‘i Chapter Office
4264 Rice Street, Lihue
Mailing Address:
P.O. Box 1708
Lihue, Hawai‘i 96766
Ph: (808) 246-8911
TO: David W. Rae, Chair
Honolulu Charter Commission
Kevin Mulligan, Vice Chair
Honolulu Charter Commission
Members of the Honolulu Charter Commission
FROM: Tenari Ma’afala, President
State of Hawaii Organization of Police Officers
DATE: February 11, 2016
SUBJECT: Testimony on Charter Proposal 23
This Proposal repeals the police chief’s and the prosecuting attorney’s
authority to grant or not grant release of police records. The State of Hawaii
Organization of Police Officers (“SHOPO”) opposes this Proposal as it pertains to
the police chief.
As a matter of information, the Honolulu Police Department (“HPD”)
releases thousands of pages of its records annually. However, some authority has
to be the gatekeeper of records that are many and varied, otherwise the cost of
being a gatekeeper goes to the potential victims and others listed in police records,
who will have to hire attorneys, to fight release of their information.
These records include victims of crimes, including sexual assault and
stalking; also of neighbor disputes and family disputes. Some records are part of
investigations that have not been completed or are deferred. The records also
include disciplinary records of police officers, which will be discussed further
below. Being the gatekeeper does not mean the police chief has absolute
discretion to withhold records. The Hawaii Supreme Court tells us so in Tighe
v. City and County of Honolulu, 55 Haw. 422, 520 P.2d 1345 (1974)1, which is
noted in the Revised Charter of Honolulu (“RCH”)section 13-105, footnote 40 as
follows:
Public interest in preservation of confidentiality and secrecy may be
sufficient reason for insulation of police or other governmental records
from discovery in special, individual cases, but such claims of privilege
for such records on this basis require documentation and argument by the
governmental agency asserting the privilege, and subsequent judicial
evaluation of the claim of privilege. Id. at 1346.
Though Tighe regarded discovery of police records, it nonetheless stands for the
proposition that the police chief’s authority to release or not to release records is
not absolute, and the RCH does not pretend that it is.
1 “We hold that there is no absolute privilege for police records that would insulate such records
from discovery process under H.R.C.P.” Id. at 1351.
Honolulu Charter Commission
Proposal 23
Page 2
No one knows this better than Civil Beat, who filed a complaint against the City and County of
Honolulu and the HPD, in which SHOPO intervened, seeking to obtain police officers’ names
that were involved in misconduct. The following is a brief synopsis of the pending case that will
be decided by the Hawaii Supreme Court:
On 10/14/13, Civil Beat requested that the City and County of Honolulu disclose the
disciplinary information of 12 HPD officers who were not discharged from HPD,
including 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. Other than the officers’ names, the other
requested information is already required to be disclosed under current law.
On 10/15/13, the City denied Civil Beat’s request pursuant to HRS §§ 92F-13(1)
(“Unwarranted invasion of privacy”), 92F-14(b)(4) (“Incidents did not result in
discharge”) and an earlier court order issued by the Honorable Dan Kochi dated 3/21/01,
wherein Judge Kochi ruled that the City was precluded and prohibited from releasing the
disciplinary records of officers who were disciplined but not discharged.
More than a decade after Judge Kochi’s valid order was issued, Civil Beat on 11/7/13
filed a lawsuit in the Circuit Court seeking the release of the disciplinary information for
the same 12 officers. It was obvious that Civil Beat was primarily interested in seeking
the names of the officers for publication.
On 1/17/14, SHOPO was permitted to intervene in Civil Beat’s lawsuit.
On 2/10/14, the Honorable Karl K. Sakamoto ruled in complete contradiction to Judge
Kochi’s order and found that police officers had “non-existent” privacy interests in their
disciplinary records. Judge Sakamoto further ruled that the City was required “to open to
public inspection and copying by Plaintiff the requested records of the twelve police
officers identified in the October 4, 2013 letter.” Judge Sakamoto’s finding that police
officers had no privacy interests in their disciplinary records contradicted the plain
reading of HRS 92F-14(4)(B)(v), wherein the legislature stated that county police officers
had a “significant privacy interest” in their disciplinary records that did not result in
discharge.
On 6/13/14, SHOPO appealed Judge Sakamoto’s order.
On 7/2/14, the Intermediate Court of Appeals granted SHOPO’s request to stay Judge
Sakamoto’s order so that the names of the 12 police officers were not released.
On 1/27/15, the Reporters Committee for Freedom of the Press filed its Amicus Brief.
Honolulu Charter Commission
Proposal 23
Page 3
On 2/10/15, the Hawaii Supreme Court accepted Civil Beat’s Application for Transfer of
the case, No. SCAP-14-0000889,.
PEER NEWS LLC, dba Civil Beat, Petitioner/Plaintiff-Appellee, vs. CITY AND
COUNTY OF HONOLULU and HONOLULU POLICE DEPARTMENT,
Respondents/Defendants-Appellees, and STATE OF HAWAII ORGANIZATION OF
POLICE OFFICERS, Respondent/Intervenor-Defendant-Appellant.
On June 18, 2015, oral arguments where held at the Hawaii Supreme Court.
We await the Hawaii Supreme Court’s opinion.
Also, the RCH section 13-105, footnote 40, further references Hawaii Revised Statutes
Chapter 92F, Uniform Information Practices Act. When any person believes the police chief’s
action as the gatekeeper is in error, they generally get an opinion from the Office of
Information Practices (“OIP”). This has been the case for at least 25 years, since at least
1991, which can be observed on OIP’s website at http://oip.hawaii.gov/wp-
content/uploads/2013/09/091515-formalopinionsubjectindex.pdf, at which you will find
numerous OIP opinions on police records.
Additionally, when records are requested from the HPD, HPD’s decisions are subject to
Hawaii Revised Statutes section 92F-13.2 Even the United States District Court , District of
Hawaii, acknowledges this in Ignacio v. County of Hawaii, 937 F.Supp.2d 1220, 1231 (2013),
when it stated:
2 HRS § 92F-13 provides in relevant part as follows: This part shall not require disclosure of:
(1) Government records which, if disclosed, would constitute a clearly unwarranted invasion of personal
privacy;
(2) Government records pertaining to the prosecution or defense of any judicial or quasi-judicial action to which
the State or any county is or may be a party, to the extent that such records would not be discoverable;
(3) Government records that, by their nature, must be confidential in order for the government to avoid the
frustration of a legitimate government function;
(4) Government records which, pursuant to state or federal law including an order of any state or federal court,
are protected from disclosure; and
(5) Inchoate and draft working papers of legislative committees including budget worksheets and unfiled
committee reports; work product; records or transcripts of an investigating committee of the legislature which are
closed by rules adopted pursuant to section 21-4 and the personal files of members of the legislature.
Honolulu Charter Commission
Proposal 23
Page 4
Because Ignacio does not claim that the Police Department’s reliance on the
statutes was improper or unwarranted, the court rules that the Police Department
was entitled to withhold documents under sections 92F-13 and 92F-22.
Finally, Civil Beat has supported numerous bills in the legislature over the last three
years to remove the police exemption for disciplinary records (other than terminations) in Hawaii
Revised Statutes section 92F-14. This is just another attempt to obtain the names of police
officers who are disciplined. Notably, if officers are sued in civil court or are prosecuted
criminally, the court records are generally open to the public.
Thus, there are mechanisms in place to challenge a police response to a records request.
There must be a gatekeeper for police records and the police chief is the most qualified. SHOPO
opposes Proposal 23. Thank you for consideration of our testimony.
1
From: [email protected]
Sent: Wednesday, February 17, 2016 9:32 PM
To: [email protected];
Charter Commission
Subject: TESTIMONY submission
Attachments: 201602180132th19_4010635191535_lwvhi testimony for 2-19-16 honolulu charter
commission meeting.pdf
Agenda Item* mostly 2/19/16 agenda items V and VII
Name* Douglas Meller
Phone 808 - 595 - 8208
Email (required to sendconfirmation email)*
Your position on thesubject*
Support
Representing* Organization (Please fill in field below)
Organization League of Women Voters of Hawaii
Written Testimony 2015-2016Charter CommissionCity and County of HonoluluEmail: [email protected]
Friday, February 19, 2016, 3:30 PM Meeting
TESTIMONYDouglas Meller, Legislative Committee, League of Women Voters ofHawaii
Chair Rae, Vice-Chair Mulligan, and Members of the 2015-2015 CharterCommission:
The League of Women Voters of Hawaii strongly supports the Civil BeatLaw Center’s charter amendment proposals # 23, 24, 25, and 26.Proposal 23: updates Charter provisions concerning public records to beconsistent with state law.Proposal 24: requires City boards and commissions to distribute agenda
2
and minutes on the Internet and provide electronic meeting notices onrequest.Proposal 25: requires agencies to cooperate with persons requesting publicrecords in situations when requesters are not sure how an agencymaintains records.Proposal 26: eliminates fees for processing of record requests when itserves the public interestWe also concur with the Civil Beat Law Center’s comments in support ofcharter amendment proposals #48, 111, and 147.Thank you for the opportunity to submit testimony.
Testimony Attachment LWVHI Testimony for 2-19-16 Honolulu Charter CommissionMeeting.pdf
Disclaimer* By checking this box, I understand that testimony submitted through thiswebsite is now a part of public record, including any information you mayhave furnished.
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49 South Hotel Street, Room 314 | Honolulu, HI 96813 www.lwv-hawaii.com | 808.531.7448 | [email protected]
2015-2016
Charter Commission City and County of Honolulu
Email: [email protected]
Friday, February 19, 2016, 3:30 PM Meeting
TESTIMONY Douglas Meller, Legislative Committee, League of Women Voters of Hawaii
Chair Rae, Vice-Chair Mulligan, and Members of the 2015-2015 Charter Commission:
The League of Women Voters of Hawaii strongly supports the Civil Beat Law Center’s charter amendment proposals # 23, 24, 25, and 26.
Proposal 23: updates Charter provisions concerning public records to be consistent with state law. Proposal 24: requires City boards and commissions to distribute agenda and minutes on the Internet and provide electronic meeting notices on request. Proposal 25: requires agencies to cooperate with persons requesting public records in situations when requesters are not sure how an agency maintains records. Proposal 26: eliminates fees for processing of record requests when it serves the public interest
We also concur with the Civil Beat Law Center’s comments in support of charter amendment proposals #48, 111, and 147.
Thank you for the opportunity to submit testimony.
PO Box 3141Honolulu, HI 96802
Feb. 19, 2016
Honolulu Charter CommissionHonolulu HaleHonolulu, HI 96813
Dear Commission Members:
The Hawaii Professional Chapter of the Society of Professional Journalists supports the followingproposals:
Proposal 23. This would conform Charter to the state public records law. Proposal 24. This would bring boards and commissions into the 21st century. We wholeheartedly
support the idea of boards and commissions making their business available on the Internet orby email.
Proposal 25. This would help the public in trying to find how to and where to go to get publicrecords, oftentimes a daunting task for an average person.
Proposal 26. This would help the public in getting more information about how its governmentoperates. Sometimes records fees can be a big obstacle to a media organization getting theinformation it needs for an important issue. When the public interest is involved, fees shouldn’tstand in the way of disseminating information to the public.
Thank you for your time and attention.
Stirling MoritaPresidentHawaii Chapter SPJ
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