State of Hawaii Organization of Police Officers v. City and County of Honolulu. ( 2021 )

Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
17-SEP-2021
07:57 AM
Dkt. 105 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---
STATE OF HAWAII ORGANIZATION OF POLICE OFFICERS,
exclusive representative for Bargaining Unit 12, Police,
Plaintiff-Appellant/Cross-Appellee,
vs.
CITY AND COUNTY OF HONOLULU,
Defendant/Cross-Claim Defendant-Appellee/Cross-Appellee,
and
HONOLULU CIVIL BEAT, INC.,
Intervenor-Defendant/Cross-Claimant-Appellee/Cross-Appellant.
SCAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-XX-XXXXXXX; CIV. NO. 18-1-0823-05)
SEPTEMBER 17, 2021
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
2
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 Hawaiʻi
Organization of Police Officers v. Society of Professional
Journalists – University of Hawaiʻi (SHOPO v. SPJ), 83 Hawaiʻi
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
3
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.
1 On December 16, 2020, we lifted the stay of the judgment, and the
circuit court thereafter released the records. We retained concurrent
jurisdiction to issue this opinion. See, e.g., In re AB, 145 Hawai‘i 498,
513, 454 P.3d 439, 454 (2019).
2 The events giving rise to this litigation were widely publicized,
and many of the news articles covering the video and its aftermath are in the
record. The complaint did not name Sergeant Cachola, and SHOPO has at times
objected during this litigation to publicly naming the officer. However,
even before this court ordered the lifting of the stay of the circuit court’s
judgment, the record was replete with instances of his name.
4
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
Hawaiʻi 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.
3 The Honorable Jeffrey P. Crabtree presided.
4 SHOPO also filed a class grievance under the CBA and a prohibited
practice complaint with the Hawaiʻi Labor Relations Board (HLRB). The record
indicates that SHOPO obtained a temporary restraining order from the HLRB,
blocking the release of the records pending a final decision in the instant
case.
5
Specifically, SHOPO’s complaint stated that both the
“informational privacy” protection enshrined in article I,
section 6 of the Hawai‘i Constitution 5 and UIPA’s statutory
protections in HRS §§ 94F-13 6 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
5 Article I, section 6 provides: “The right of the people to
privacy is recognized and shall not be infringed without the showing of a
compelling state interest. The legislature shall take affirmative steps to
implement this right.”
6 HRS § 92F-13 provides: “[UIPA] shall not require disclosure of
. . . [g]overnment records which, if disclosed, would constitute a clearly
unwarranted invasion of personal privacy[.]”
7 HRS § 92F-14(a) provides: “Disclosure of a government record
shall not constitute a clearly unwarranted invasion of personal privacy if
the public interest in disclosure outweighs the privacy interest of the
individual.”
In turn, HRS § 92F-14(b) provides that “information in an
agency’s personnel file” is an “example[] of information in which the
individual has a significant privacy interest.” While “employment misconduct
that results in an employee’s suspension or discharge” is typically excluded
from that example, and therefore disclosable, at the time this litigation
commenced, misconduct by “a county police department officer” that did not
“result[] in the discharge of the officer” was exempted from the exclusion.
HRS § 92F-14(b)(4)(B) (2012). Thus, under HRS § 92F-14 as it existed when
the complaint was filed, a county police officer has a significant privacy
interest in their personnel file, even if the information therein pertains to
misconduct, unless the officer was discharged. In September 2020, the
legislature removed the “county police officer” exception from HRS § 92F-14.
2020 Haw. Sess. Laws Act 47, § 3 at 365-66.
6
(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
7
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
8 The City’s answer to the complaint largely admitted the factual
allegations, but claimed it did not violate UIPA and that SHOPO was not
entitled to information about how the City reached its conclusion.
8
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 “clarify, modify, or correct” the
August 13, 2018 Order (Motion to Clarify). It argued
clarification, modification, or correction was necessary for
four reasons: (1) SHOPO “sought declaratory relief pursuant to
HRS § 632-1 [(2016)], and injunctive relief to enjoin Defendant
City from releasing the subject records” until it performs the
9
balancing test, not “a private cause of action under UIPA”; (2)
because its requested relief included a declaration of the
City’s UIPA obligations, “[i]t is not clear what is left of
Plaintiff’s Complaint . . . because UIPA is the mechanism
intended to protect the right to privacy which SHOPO’s Complaint
seeks to enforce”; (3) dismissal of all UIPA claims and ordering
in camera review contradicted each other; and (4) “[i]t is
unclear if Plaintiff will be given the opportunity to conduct
discovery” and what information the court would consider. The
City and Civil Beat opposed the motion.
The circuit court issued an Order (September 28, 2018
Order) clarifying that it would “apply a constitutional
balancing test as discussed in Peer News.” It saw “no
inconsistency between a constitutional balancing test and its
finding of no private cause of action under UIPA” per the
August 13, 2018 Order. “The Hawaiʻi Constitution sets a floor
for privacy interests. The Legislature can establish more
protections by statute (such as UIPA) if it chooses to. . . .
This court has now ruled that the legislative protections of
UIPA do not apply to Plaintiff under the circumstances of this
case.” The circuit court stated that after in camera review, it
would decide “whether any applicable constitutional privacy
protections are outweighed by the public interest in disclosure
under the applicable facts.”
10
4. Civil Beat’s Cross-Claim
Civil Beat moved for, and was granted, permission to
file a cross-claim against the City as a requester “aggrieved by
a denial of access to a government record” per HRS § 92F-15
(2012). Civil Beat asserted in the motion that “it appears that
SHOPO is abandoning its constitutional privacy claims,” in which
case, the circuit court may have been compelled to dismiss the
case in its entirety.
Civil Beat’s cross-claim against the City alleged that
the City denied their renewed UIPA request as a result of the
HLRB’s order enjoining the release of the requested records. 9
See supra note 3. Thus, Civil Beat asked for the court to order
the City to release “all information sought” by Civil Beat in
its UIPA request – namely, the arbitration award, the closing
report, and the full investigation. The City’s answer to the
cross-claim denied that it had violated UIPA, but admitted that
“Civil Beat has a right to access the requested records” and
that “it has been and remains the City’s intention to disclose
the requested records.”
5. January 3, 2019 Order
The circuit court sua sponte reexamined and vacated
part of the September 28, 2018 Order (January 3, 2019 Order).
9 The cross-claim alleges that Civil Beat issued another request
for the records on August 30, 2018 (while the instant litigation was well
underway), which was denied by the City on the grounds of the HLRB order.
11
It recognized that while its prior rulings constituted the law
of the case, “so long as a trial court retains jurisdiction, it
‘always has the power to reexamine, modify, vacate, correct and
reverse its prior rulings and orders,’” especially when it feels
a prior ruling was “probably erroneous.” (Quoting Chun v. Board
of Trustees of the Emp. Ret. Sys., 92 Hawaiʻi 432, 441, 992 P.2d
127, 136 (2000).) The circuit court reasoned that the September
28, 2018 Order had conflated the question of whether SHOPO had a
statutory cause of action under UIPA with whether UIPA’s
substantive, statutory privacy protections apply. “[T]he court
now recognizes that the UIPA cause of action issue is separate
from and does not nullify the legislature’s ability to create or
enlarge statutory privacy exceptions to the UIPA’s broad
disclosure requirements.” It determined that
the statutory privacy interests granted by the legislature
under the UIPA should be applied by this court whether or
not the City/HPD chooses to disclose the information or
records at issue. Otherwise, an individual’s statutory
privacy interests under the UIPA are ephemeral, and
evaporate whenever the agency chooses to disclose, with no
relief available from the court.
The circuit court reasoned this approach was more
consistent “with the underlying purposes of the UIPA, which
include making the ‘government accountable to individuals in the
collection, use, and dissemination of information relating to
them.’” (Citing HRS § 92F-2(4).)
12
6. April 29, 2019 Order
On April 29, 2019, the circuit court issued an order
after in camera review of the records (April 29, 2019 Order).
The April 29, 2019 Order granted summary judgment against SHOPO
and in favor of the City and Civil Beat as to the arbitration
decision and closing report. It dismissed without prejudice all
claims regarding the investigative report, and dismissed all
other claims. The court ruled as follows:
1. The Court was asked to review three documents in
camera: the arbitration award, the closing report, which is
143 pages, and the investigative report, which is 767
pages.
2. The more serious the misconduct, the more likely
the public interest outweighs the individual privacy
interest. Here, the alleged misconduct was extremely
serious: the use of unauthorized, unjustified, and
potentially criminal physical force against another person,
completely unrelated to any official law enforcement
duties.
3. The proper performance of public duty is a public
concern, and it is given great weight when balancing
competing privacy interests. This is true whether
addressing off-duty acts that bear upon a police officer’s
fitness to perform duties, or whether the alleged actions
involve official duties. Here, the alleged acts are
essentially personal and off-duty, but clearly can bear
upon a police officer’s fitness to perform duties.
4. There is a significant public interest in the
public knowing how the Honolulu Police Department (HPD)
supervises alleged misconduct, responds to misconduct
allegations, and investigates alleged misconduct. A large
portion of the records reviewed in camera (which the
City/HPD themselves decided to release) involve HPD’s
investigation and response to the misconduct allegations.
5. Little of the conduct described in these records
was of a truly personal, private, or intimate nature. Much
of the alleged conduct occurred in front of witnesses, in a
restaurant, or in the public areas, and with third parties.
6. For the above reasons, the Court finds that as a
matter of law, the public interest in disclosure far
outweighs the privacy interests of the records directed to
13
be released in this order. Put another way, consistent
with the UIPA’s general policy in favor of disclosure, the
City/HPD’s disclosure of these records is not clearly
unwarranted.
7. Further, there is a separate and independent
ground to release the arbitration award - the requirement
to disclose adjudicative orders pursuant to HRS § 92F-
12(a)(2) [(2012)].
8. Although the arbitration award, as the final
adjudication award, is a mandatory disclosure under section
92F-12(a)(2), it is still subject to privacy interests per
section 92F-13(1).
9. Disclosing the redacted portions of the
arbitration award, to include the City/HPD’s proposed
redactions as well as any additional redactions necessary
to protect “personal information” as defined by Hawaii
Court Records Rules (HCRR) Rule 2.19,[ 10] is clearly
unwarranted when weighed against the privacy interests of
the civilians involved.
10. The closing report is not a criminal
investigation file. It is a disciplinary action file. The
Court understands the HPD and the City have voluntarily
decided to release the closing report, with certain
redactions. This Court is tasked with ruling on the
privacy issues presented by the release of the proposed
redacted closing report.
11. In essence, the closing report contains more
details than the arbitration award concerning the events
and investigation that led to the officer’s termination and
subsequent reinstatement. In addition to the information
redacted in the arbitration award, the closing report
redacts the names of various witnesses, and responding
and/or investigating officers. Although these identities
are redacted, the person’s actions and inactions are
disclosed. In other words, with the redacted version, the
reader will learn in detail what happened, and will see in
detail how the investigation was conducted, but may not
learn exactly which witness or exactly which responding or
investigating officer did something specific.
12. The Court finds that the HPD/City’s disclosure of
the proposed redacted closing report is not clearly
unwarranted. HPD is plainly trying to be transparent
regarding the disciplinary investigation of the officer who
was discharged and then reinstated, while balancing the
privacy interests of everyone else involved. It is a fine
10 Hawaiʻi Court Records Rule (HCCR) Rule 2.19 defines “personal
information.” HCCR Rule 9 generally prohibits the inclusion of personal
information in publicly accessible court filings.
14
line, and time-consuming, to weigh these issues page by
page.
13. The bottom line is the Court finds the disclosure
and redactions are legally justified. The public’s right
to know under the UIPA is satisfied by learning the details
regarding the discharged/reinstated officer, as well as the
details of what the investigation revealed and how the
investigation was conducted. At the same time, the privacy
of certain civilian witnesses, and certain information
regarding the responding and investigating officers, is
redacted. The Court does not believe the redactions
materially detract from the voluminous information being
disclosed by HPD/City. The public’s right to know should
be met by seeing both the final adjudicative decision, and
HPD’s response to the entire incident.
14. The Court respectfully disagrees with SHOPO’s
claim or inference that the City did not conduct any kind
of balancing analysis and that therefore this Court is in
essence conducting the first balancing test for these
records. The Court sees no evidence in the record to
support this claim. Just because the agency is not
required to give a plaintiff a written/reasoned explanation
for disclosure does not mean no balancing test was
performed.
15. For the above reasons, the Court hereby orders
release of the redacted arbitration award, subject to
additional redactions wherever necessary to protect
“personal information” as defined by HCRR Rule 2.19.
16. The Court further orders the release of the
redacted version of the closing report[. 11]
The court also noted that it had only received the
unredacted version of the 767-page investigative report; it
understood the City to be working on redactions, but it declined
to make those decisions itself. It also “doubt[ed] that the
full investigative file adds much to the discussion” as it was
duplicative of the arbitration award and closing report; it
accordingly did not order the disclosure of the report (except
for 72 pages containing “HPD’s policies, procedures and rules
11 The court also ordered further redactions to the closing report.
15
applicable to the incident in question” that did not require
redaction). Claims related to the investigative report were
dismissed without prejudice.
SHOPO moved for, and the circuit court granted, a stay
of the judgment pending appeal. 12
B. Proceedings on Appeal
SHOPO and Civil Beat cross-appealed. At issue on
appeal are the August 13, 2018 Order; the September 28, 2018
Order; the January 3, 2019 Order; and the April 29, 2019 Order.
SHOPO’s appeal raises the following points of error.
First, it contends that the circuit court erred by failing to
address its request for declaratory relief (a declaration of
“Defendant City’s duties and responsibilities under the UIPA”
and “guidance on how an agency must apply the UIPA balancing
test”) and injunctive relief (“prohibiting Defendant City [from]
releasing the subject records until such time that it has
complied with UIPA”).
In the alternative, SHOPO argues that the circuit
court failed to properly interpret and apply the UIPA balancing
12 Civil Beat petitioned this court for a writ of mandamus, alleging
that the circuit court failed to apply the proper test for a stay pending
appeal. See Honolulu Civil Beat Inc. v. Crabtree, SCPW-XX-XXXXXXX, 2019 WL
4678149 (Haw. Sept. 25, 2019) (Order Denying Petition for Writ of Mandamus).
We denied the petition. After this court accepted Civil Beat’s application
for transfer, Civil Beat moved to lift the stay pursuant to Hawai‘i Rules of
Appellate Procedure (HRAP) Rule 8(a). We initially denied the motion on
January 24, 2020. As explained below, however, we later lifted the stay upon
Civil Beat’s renewed request.
16
test as set forth in Peer News. It specifically challenges the
City and the circuit court’s application of the balancing test
and the procedural integrity of the process, arguing: it was
denied due process; the circuit court should have addressed the
CBA, including the arbitrator’s decision to seal the arbitration
decision pursuant to the CBA; the circuit court erred by
conducting the balancing test de novo, as opposed to “the
‘highly factual’ standard”; the circuit court erroneously
limited its in camera review because it was too “time
consuming”; the circuit court’s “separate and independent
ground[s]” for releasing the records under HRS § 92F-12(a)(2)
was erroneous; the circuit court erroneously concluded the City
was not required to issue a written explanation justifying
disclosure; and the circuit court should have “prohibit[ed] the
disclosure of the full investigative report.”
Civil Beat’s appeal challenges the circuit court’s
January 3, 2019 Order, which applied UIPA privacy standards
despite reaffirming that SHOPO lacked a cause of action: “The
circuit court’s recognition of an unspecified and amorphous
implied cause of action based on the mere existence of the UIPA
privacy standards directly contradicts the analysis for
judicially implying a private right of action from a statute.”
It also asks this court to review “[w]hether the constitutional
17
right of privacy standards are the same as the UIPA privacy
standards.”
This court accepted transfer of the appeals on October
24, 2019. While the appeals were pending, Act 47 became law.
Act 47 amended, as relevant here, HRS § 92F-14 to remove the
statutory “significant privacy interest” in the employment
misconduct records of a county police officer. 13 The parties
13 More precisely, it removed the exception for county police
officers from the exception for disciplinary records from the “personnel
file” example on the list of examples of “information in which the individual
has a significant privacy interest.” Act 47 amended HRS § 92F-14 as follows
(deleted text represented by strikethrough):
(b) The following are examples of information in which the
individual has a significant privacy interest:
. . . .
(4) Information in an agency’s personnel file, . . .
except:
. . . .
(B) The following information related to employment
misconduct that results in an employee’s suspension
or discharge:
(i) The name of the employee;
(ii) The nature of the employment related
misconduct;
(iii) The agency’s summary of the allegations
of misconduct;
(iv) Findings of fact and conclusions of law;
and
(v) The disciplinary action taken by the
agency;
when the following has occurred: the highest
nonjudicial grievance adjustment procedure timely
invoked by the employee or the employee’s
representative has concluded; a written decision
sustaining the suspension or discharge has been
issued after this procedure; and thirty calendar days
have elapsed following the issuance of the decision
or, for decisions involving county police department
18
requested, and we granted, the opportunity for supplemental
briefing that addressed how Act 47 affected the instant case.
On December 16, 2020, after supplemental briefing and
oral argument, we granted Civil Beat’s request to lift the stay
of the judgment. We explained that “[i]t is clear to us that
UIPA mandates the disclosure of the documents at issue,” and
“[w]e accordingly s[aw] no reason for further delay in
effectuating the circuit court’s order[.]” State of Hawai‘i
Organization of Police Officers v. City and County of Honolulu,
SCAP-XX-XXXXXXX (Haw. Dec. 16, 2020) (Order Lifting Stay Pending
Appeal). As a result, the redacted arbitration award and
closing report were released. We retained jurisdiction to issue
this opinion, and we now elaborate on our reasons for concluding
that the records were subject to disclosure.
III. STANDARD OF REVIEW
On appeal, an order of summary judgment is reviewed under
the same standard applied by the circuit courts. Summary
judgment is proper where the moving party demonstrates that
there are no genuine issues of material fact and it is
entitled to judgment as a matter of law. In other words,
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 of material fact and the moving party
is entitled to a judgment as a matter of law.
SHOPO v. SPJ, 83 Hawaiʻi at 389, 927 P.2d at 397.
officers, ninety days have elapsed following the
issuance of the decision; [provided that subparagraph
(B) shall not apply to a county police department
officer except in a case which results in the
discharge of the officer;]
2020 Haw. Sess. Laws Act 47, § 3 at 365-66.
19
Whether a document is subject to disclosure under UIPA
is reviewed de novo, HRS § 92F-15(b), as are “constitutional
questions.” Doe v. Doe, 116 Hawaiʻi 323, 326, 172 P.3d 1067,
1070 (2007).
IV. DISCUSSION
UIPA requires disclosure of public records unless an
exception applies; one of those exceptions lies where disclosure
would constitute “a clearly unwarranted invasion of personal
privacy.” HRS § 92F-13. In turn, HRS § 92F-14(a) provides that
“[d]isclosure of a government record shall not constitute a
clearly unwarranted invasion of personal privacy if the public
interest in disclosure outweighs the privacy interest of the
individual.” HRS § 92F-14(b) supplies a list of examples of
information in which an individual has a “significant privacy
interest.” One of those examples is “[i]nformation in an
agency’s personnel file.” HRS § 92F-14(b)(4). This interest in
one’s personnel file, however, is subject to an important
exception: particular information related to employee misconduct
resulting in suspension or discharge does not enjoy a
significant privacy interest. HRS § 92F-14(b)(4)(B).
Two cases interpreting these statutes are critical
here. First, in SHOPO v. SPJ, we held that “information
regarding a police officer’s misconduct in the course of his or
20
her duties as a police officer is not within the protection of
Hawaiʻi’s constitutional right to privacy.” 83 Hawaiʻi at 397,
927 P.2d at 405. Absent a significant privacy interest rooted
in statute or the constitution, “a scintilla of public interest
in disclosure will preclude a finding of a clearly unwarranted
invasion of personal privacy.” Id. at 383–84, 927 P.2d at 391–
92 (quoting Conf. Comm. Rep. No. 112–88, in 1988 House Journal,
at 817–18). Said differently, under SHOPO v. SPJ, records in
which there is no significant privacy interest – which, at the
time SHOPO v. SPJ was decided, was true of police misconduct
records – must be released under UIPA if there is at least a
scintilla of public interest in disclosure.
Second, in Peer News, we recognized that the
legislature had amended UIPA to carve out police misconduct
records from the employment misconduct records in which an
employee generally enjoys no right to privacy. Said plainly,
the legislature “recognized a ‘significant privacy interest’ in
police officers’ disciplinary suspension records in HRS § 92F–
14(b).” 138 Hawai‘i at 61, 376 P.3d at 9. Accordingly, Peer
News held that determining whether police misconduct records are
subject to disclosure under UIPA requires “balancing that
[significant] privacy interest against the public interest in
disclosure of the records.” Id. at 73, 376 P.3d at 21.
21
Accordingly, the following scheme applies when UIPA’s
privacy exception is invoked:
The application of section 92F–14 varies considerably
depending on whether or not the privacy interest is
considered “significant.” [SHOPO v. SPJ, 83 Hawaiʻi] at
383–84, 927 P.2d at 391–92. “[O]nce a significant privacy
interest is found, the privacy interest will be balanced
against the public interest in disclosure. If the privacy
interest is not ‘significant,’ a scintilla of public
interest in disclosure will preclude a finding of a clearly
unwarranted invasion of personal privacy.” Id. (quoting
Conf. Comm. Rep. No. 112–88, in 1988 House Journal, at 817–
18).
Id. at 76, 376 P.3d at 24 (Pollack, J., concurring).
This case requires us to consider how UIPA, as
interpreted by SHOPO v. SPJ and Peer News, applies to the sought
records in this case: the redacted arbitration award and closing
report. 14 It also requires us to determine whether and how Act
47 changes the analysis insofar as the legislature has now
rescinded its recognition of a “significant privacy interest” in
police misconduct records. But first, as a threshold matter, we
must consider whether SHOPO had the right to bring this suit at
all.
A. There Is No Private Right of Action Under UIPA for a Party
to Sue to Prevent the Release of Records that an Agency Has
Determined Are Subject to Disclosure
SHOPO’s complaint challenges the City’s decision to
release documents pursuant to UIPA, seeking both declaratory and
14 Civil Beat has not appealed the circuit court’s decision not to
order the release of the investigative report. This opinion accordingly does
not address whether UIPA requires the disclosure of that record. However, we
do address SHOPO’s contention that the circuit court should have prohibited
the disclosure of the investigative report in Part IV.J below.
22
injunctive relief. To do so, however, SHOPO must have a right
of action. We hold that there is no private right of action
under UIPA for a party seeking to prevent the release of
documents.
As a preliminary matter, SHOPO argues that HRS § 632-
1, which provides for declaratory relief in certain
circumstances, itself creates a right of action. 15 It does not.
An express or implied right of action must sound from some other
law before a party may rely on HRS § 632-1’s remedies. In
Alakaʻi Na Keiki, Inc. v. Matayoshi, 127 Hawaiʻi 263, 277 P.3d
988 (2012), the plaintiff – a business that had submitted a
proposal to the State to provide health and human services –
sought a declaratory judgment that the State had violated HRS
Chapter 103F, which establishes rules for health-related
procurements by the State. Id. at 266-67, 277 P.3d at 991-92.
Although the plaintiff sought declaratory relief, we explained,
15 SHOPO also argues that “Civil Beat’s [right of action] argument
here fails because it ignores . . . [SHOPO’s] clear standing to assert such
claims.” That SHOPO would have standing to seek declaratory relief under Tax
Foundation of Hawaiʻi v. State, 144 Hawaiʻi 175, 439 P.3d 127 (2019), is of no
matter if it lacks a cause of action. As we explained in County of Hawaiʻi v.
Ala Loop Homeowners, 123 Hawaiʻi 391, 235 P.3d 1103 (2010):
[O]ur cases make clear that the two inquiries [standing and
private right of action] involve distinct policy
considerations and distinct tests. The private right of
action inquiry focuses on the question of whether any
private party can sue to enforce a statute, while the
standing inquiry focuses on whether a particular private
party is an appropriate plaintiff.
Id. at 406 n.20, 235 P.3d at 1118 n.20 (citations omitted).
23
“In order for a party to sue for enforcement under HRS § 632–1,
HRS chapter 103F must provide for an express or implied private
right of action.” Id. at 285, 277 P.3d at 1010. Thus, the
declaratory judgment statute provides a remedy but does not
furnish a cause of action; the substantive law the plaintiff
seeks to enforce by way of a declaratory judgment must itself do
so.
In order to enforce UIPA, SHOPO’s cause of action must
emanate from UIPA itself, the substantive law it seeks to
enforce. First, no express cause of action to prevent
disclosure of government records exists under UIPA. UIPA
provides an express cause of action for a specific class of
people: those aggrieved by nondisclosure. 16 HRS § 92F-15(a)
provides: “[a] person aggrieved by a denial of access to a
government record may bring an action against the agency at any
time within two years after the agency denial to compel
disclosure.” (Emphases added.) Thus, UIPA provides for
16 Under federal law, some parties may sue to prevent the release of
certain documents pursuant to the Freedom of Information Act (FOIA). CNA
Fin. Corp. v. Donovan, 830 F.2d 1132, 1133 n.1 (D.C. Cir. 1987). While FOIA
and related statutes furnish the substantive law in so-called “reverse-FOIA”
lawsuits, “§ 10(a) of the Administrative Procedure Act (APA), 5 U.S.C. § 702(1982), supplies the cause of action.” Id. (citing Chrysler Corp. v. Brown,
441 U.S. 281, 317, 317 n.47 (1979)). Section 10(a) of the APA provides in
relevant part: “A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning of a
relevant statute, is entitled to judicial review thereof.” No party has
argued that the judicial review provisions of Chapter 91, Hawaiʻi’s equivalent
to the APA, provides a cause of action, and Chapter 91 is meaningfully
different from the APA in any event.
24
judicial enforcement by a requester who tried, but failed, to
acquire government documents. SHOPO is not “a person aggrieved
by a denial of access”; SHOPO is aggrieved by the agency’s grant
of access. Moreover, SHOPO is not seeking to “compel
disclosure” – quite the opposite. Accordingly, SHOPO is not
entitled to invoke Chapter 92F’s judicial enforcement mechanism,
and UIPA furnishes no other express cause of action to sustain
SHOPO’s suit.
Thus, if a right of action to prevent disclosure
exists under Chapter 92F, it must be implied. To determine
whether a statute confers an implied private right of action,
this court has adopted the United States Supreme Court’s
analysis in Cort v. Ash, 422 U.S. 66 (1975). See, e.g.,
Reliable Collection Agency, Ltd. v. Cole, 59 Haw. 503, 506–07,
584 P.2d 107, 109 (1978); County of Hawaiʻi v. Ala Loop
Homeowners, 123 Hawaiʻi 391, 407-08, 235 P.3d 1103, 1119-20
(2010), abrogated on other grounds by Tax Found. of Hawaiʻi v.
State, 144 Hawaiʻi 175, 439 P.3d 127 (2019); Hungate v. Law
Office of David B. Rosen, 139 Hawaiʻi 394, 406, 391 P.3d 1, 13
(2017). Cort set forth “several factors” to determine “whether
a private remedy is implicit in a statute not expressly
providing one”:
First, is the plaintiff ‘one of the class for whose
especial benefit the statute was enacted[]’ . . . ?
Second, is there any indication of legislative intent,
25
explicit or implicit, either to create such a remedy or to
deny one? . . . Third, is it consistent with the
underlying purposes of the legislative scheme to imply such
a remedy for the plaintiff?
422 U.S. at 78 (citations omitted). 17
In the intervening years, the United States Supreme
Court has refined the inquiry to emphasize legislative intent.
See Gonzaga Univ. v. Doe, 536 U.S. 273, 283-84 (2002); Alexander
v. Sandoval, 532 U.S. 275, 286 (2001). This court has followed
suit. In Rees v. Carlisle, 113 Hawaiʻi 446, 153 P.3d 1131,
(2007), we explained that “we apply Cort’s first three factors
in determining whether a statute provides a private right of
action though understanding that legislative intent appears to
be the determinative factor.” Id. at 458, 153 P.3d at 1143(quoting Whitey’s Boat Cruises, Inc. v. Napali-Kauai Boat
Charters, Inc., 110 Hawaiʻi 302, 313 n.20, 132 P.3d 1213, 1224
n.20 (2006)).
Based on this test, there is no implied cause of
action under UIPA for SHOPO to sue to prevent the release of
records. Recognizing that UIPA grants county police officers a
privacy interest in their personnel files, SHOPO, via its
members, is arguably “a member of the class for whose special
benefit the statute was enacted” (albeit this contention might
17 The fourth factor in the Cort test is inapplicable here for
obvious reasons: “And finally, is the cause of action one traditionally
relegated to state law, in an area basically the concern of the States, so
that it would be inappropriate to infer a cause of action based solely on
federal law?” 422 U.S. at 78.
26
reasonably be called into doubt in light of Act 47). Hungate,
139 Hawaiʻi at 406, 391 P.3d at 13. But neither legislative
intent nor the underlying purposes of the legislative scheme
indicate that a party in SHOPO’s position is able to sue to
prevent the disclosure of public records. UIPA simply provides
no right of nondisclosure.
Legislative intent is given the greatest weight. In
this case, there is a clear and obvious indicator of legislative
intent: UIPA already provides for particular kinds of
enforcement actions. “A frequently stated principle of
statutory construction is that when legislation expressly
provides a particular remedy or remedies, courts should not
expand the coverage of the statute to subsume other remedies.”
Reliable Collection Agency, 59 Haw. at 510, 584 P.2d at 111(quoting Nat’l R.R. Passenger Corp. v. Nat’l Ass’n of R.R.
Passengers, 414 U.S. 453, 458 (1974)). The legislature chose to
provide for judicial review and was quite specific that review
is available when a party is aggrieved by an agency’s denial of
access. HRS § 92F-15; see Whitey’s Boat Cruises, 110 Hawaiʻi at
314, 132 P.3d at 1225 (reasoning that the existence of
enumerated civil penalties weighed against implying a private
right of action); cf. Travelers Ins. Co. v. Hawaii Roofing,
Inc., 64 Haw. 380, 387, 641 P.2d 1333, 1338 (1982) (disallowing
a lawsuit where suing appeared to be an “attempt at
27
circumvention of statutory dictates”). And UIPA elsewhere
penalizes wrongful disclosure, as HRS § 92F-17(a) (2012) makes
it a misdemeanor to “intentionally disclose[] or provide[] a
copy of a government record, or any confidential information
explicitly described by specific confidentiality statutes, to
any person or agency with actual knowledge that disclosure is
prohibited[.]” See Rees, 113 Hawaiʻi at 458–59, 153 P.3d at1143–44 (concluding that private enforcement would be
inconsistent with an ordinance when the law explicitly provided
for public enforcement); cf. Molfino v. Yuen, 134 Hawaiʻi 181,
187, 339 P.3d 679, 685 (2014) (declining to impose tort
liability under Chapter 92F because the fact that it “expressly
imposes criminal penalties for intentional violations of
confidentiality statutes” reflected countervailing legislative
intent).
The legislative scheme also points against implying a
cause of action for SHOPO to sue to prevent disclosure because
UIPA itself creates no right of nondisclosure. SHOPO does not
accurately characterize the law when it says that documents are
“protected from disclosure” unless the public interest outweighs
the privacy interest. In fact, HRS § 92F-13(1) provides that
“[UIPA] shall not require disclosure of,” inter alia, “records
which, if disclosed, would constitute a clearly unwarranted
invasion of personal privacy[.]” (Emphasis added.) “The plain
28
language of a statute is ‘the fundamental starting point of
statutory interpretation[.]’” State v. Demello, 136 Hawaiʻi 193,
195, 361 P.3d 420, 422 (2015) (citation omitted). The statutory
language here is not prohibitive: that is, HRS § 92F-13 does
“not require disclosure” if an exemption applies, but it does
not forbid it, either. The statute does not, for instance, say
that such records “shall not be disclosed,” language used in
other statutes. 18 Indeed, UIPA itself uses more restrictive and
unequivocal language prohibiting disclosure in other places
within the statutory scheme: under HRS § 92F-19(a) (2012), “[n]o
agency may disclose or authorize disclosure of government
records to any other agency,” unless a defined exception
applies. And the fourth exemption in HRS § 92F-13 provides that
an agency need not release “[g]overnment records which, pursuant
to state or federal law including an order of any state or
federal court, are protected from disclosure[.]” HRS § 92F-
13(4) (emphasis added). This provision recognizes that, unlike
documents that are exempt from disclosure per HRS § 92F-13(1),
(2), (3), and (5), some records are affirmatively “protected
from disclosure” by state or federal law, and an agency does not
18 See, e.g., HRS § 37-77.5(b) (2009) (attorney general’s report
about claims against the State “shall not be disclosed pursuant to sections
92F-13 and 92F-19(b)”); HRS § 334-5 (Supp. 2014) (records maintained by
health care providers “shall not be disclosed by any person”); HRS § 333F-8.7
(Supp. 2014) (records identifying a person who received services because of a
developmental disability “shall not be disclosed by any person”); HRS § 612-
13 (2016) (names of jurors “shall not be disclosed”).
29
violate UIPA, which would otherwise mandate disclosure, by
abiding by a countervailing directive. Reading the statute in
pari materia, that the legislature could have, but did not,
phrase HRS § 92F-13 to prohibit disclosure or protect from
disclosure (rather than “not require disclosure”) suggests that
the difference was purposeful, and “this court must presume that
the legislature meant what it said[.]” Demello, 136 Hawaiʻi at
195, 361 P.3d at 422.
Civil Beat also points out that the Fair Information
Practice law once codified in Chapter 92E, which was repealed
and replaced with UIPA in the late 1980s, used to expressly
prohibit agency disclosure of “personal record[s].” HRS § 92E-4
(1985). The same chapter also provided that “[a]n individual
may bring a civil [action] against an agency in a circuit court
of the State whenever an agency fails to comply with any
provision of this chapter[.]” HRS § 92E-11(a) (1985) (emphasis
added). That these provisions were repealed and replaced by a
statutory scheme with no analogues suggests that the legislature
acted purposefully when it passed UIPA, both by limiting the
scope of judicial review and by making the exceptions to
disclosure discretionary.
This conclusion also comports with the OIP’s
understanding of UIPA, and OIP opinions “shall be considered as
precedent” unless “palpably erroneous” under HRS § 92F-15(b).
30
When a requested record falls into one of these exceptions
[under HRS § 92F-13], an agency is not required to disclose
it, but an agency is not forbidden from waiving the
exception and disclosing the record, unless exception [HRS
§ 92F-13(4)] applies and the record is protected by a
statute or court order.
OIP Op. Ltr. No. 99-04, at 2 (Oct. 15, 1999); see also OIP Op.
Ltr. No. 05-03, at 1 (Jan. 19, 2005) (“While the UIPA confers on
an agency the discretion to withhold certain types of records
(or certain types of information contained in records), it does
not require an agency to deny access to those records.”); OIP
Op. Ltr. No. 05-18, at 3 (Dec. 9, 2005) (“[G]enerally, the UIPA
is a discretionary statute and does not require an agency to
withhold a record.”); OIP Op. Ltr. No. 06-04, at 4 (June 14,
2006) (“If disclosure ‘would constitute a clearly unwarranted
invasion of personal privacy’ of that third party, it is our
opinion that the agency may, and generally should, exercise its
discretion to withhold that personal information under section
92F-13(1).” (emphases added)); OIP Op. Ltr. No. 07-11, at 1 n.3
(Sept. 25, 2007) (“OIP notes that the UIPA is not a
‘confidentiality statute’ that requires an agency to withhold
records. Rather, the UIPA allows an agency to withhold those
records (or information contained in those records) if an
exception to disclosure provided by statute applies. An agency,
therefore, has the discretion to publicly disclose records that
could otherwise be withheld under the UIPA.”).
31
Peer News is not to the contrary. In Peer News, Civil
Beat had requested information regarding instances of misconduct
from HPD and was denied. 138 Hawaiʻi at 55-57, 376 P.3d at 3-5.
The procedural posture of Peer News, then, only gave us the
opportunity to review when it is appropriate for the circuit
court to order disclosure in a UIPA lawsuit brought by an
aggrieved requestor; we did not have the occasion to consider
when, if ever, the circuit court should enjoin disclosure, nor
did we opine as to when disclosure by the agency is merely
discretionary or prohibited outright. In other words, our
statement that “[d]isclosure of records is appropriate only when
the public interest in access to the records outweighs [an
officer’s] privacy interest,” id. at 55, 376 P.3d at 3, referred
to court-mandated disclosure.
Accordingly, there are three classes of documents
under UIPA: (1) documents that must be disclosed, (2) documents
that may be disclosed, and (3) documents that may not be
disclosed. 19 Parties denied access to a record (as the Peer News
19 The same is true under FOIA. FOIA’s exemption provision is also
phrased permissively: “This section does not apply to matters that are [one
of nine defined exemptions.]” 5 U.S.C. § 552(b). “Subsection (b), 5 U.S.C.
§ 552(b), which lists the exemptions, simply states that the specified
material is not subject to the disclosure obligations set out in subsection
(a). By its terms, subsection (b) demarcates the agency’s obligation to
disclose; it does not foreclose disclosure.” Chrysler Corp., 441 U.S. at
292. Accordingly, FOIA “does not afford [plaintiffs] any right to enjoin
agency disclosure.” Id. at 294. The success of reverse-FOIA cases brought
under the APA often depends on whether another law – in Chrysler Corp., for
example, the Trade Secrets Act – independently prohibits disclosure, such
32
plaintiffs were) may sue using the judicial review provision,
HRS § 92F-15, and the circuit court should order disclosure if
the sought information falls under category (1). Parties
seeking to enjoin the release of information protected by the
constitution (or another confidentiality statute if that statute
provides a cause of action) may sue to prevent disclosure for
documents under category (3), and criminal penalties likewise
provide a remedy for wrongful disclosure of category (3)
documents. But it would be inconsistent with the legislative
scheme to allow suits to prevent disclosure of documents under
category (2) – such as those that, as SHOPO alleges here, are
exempted from disclosure under HRS § 92F-13(1) – because the
statute gives agencies discretion to disclose notwithstanding
the exception. 20
In sum, taking the Cort factors together, SHOPO has no
right of action to sue to demand nondisclosure. Not only does
UIPA already provide an express cause of action for particular
groups, nondisclosure is only mandatory under UIPA where another
law – for instance, a state or federal statute, the
that the disclosure is “not in accordance with law” under § 10 of the APA.
Id. at 318; Canadian Com. Corp. v. Dep’t of Air Force, 514 F.3d 37, 39 (D.C.
Cir. 2008) (“[U]nless another statute or a regulation authorizes disclosure
of the information, the Trade Secrets Act requires each agency to withhold
any information it may withhold under Exemption 4 of the FOIA.”).
20 We do not opine on the outer bounds of an agency’s discretion to
release documents that fall under the second category, but we note that the
OIP advises agencies that they “generally should” utilize the privacy
exemption when a document qualifies. OIP Op. Ltr. No. 06-04, at 4.
33
constitution, or a court order – independently requires an
agency to withhold the sought records. There is no right of
nondisclosure under UIPA, only agency discretion to utilize the
enumerated exceptions. Because there is no “‘right’ at issue in
order for the court to issue relief,” Rees, 113 Hawaiʻi at 458,
153 P.3d at 1143, the circuit court correctly dismissed all of
SHOPO’s UIPA claims in the August 13, 2018 Order.
B. The Legislature’s Adoption of Heightened Privacy
Protections Under UIPA Does Not Affect What the
Constitution’s Privacy Provision Protects
This brings us to Civil Beat’s second point of error:
whether the circuit court erred by conflating the constitutional
privacy standards with the UIPA privacy standards. In its
January 3, 2019 Order, the circuit court applied UIPA’s privacy
provisions despite its prior determination, which remained
intact, that SHOPO lacked a UIPA cause of action. But because
SHOPO lacked a UIPA cause of action, the circuit court’s review
of the documents as related to SHOPO’s complaint should have
been limited to whether disclosure would violate the Hawaiʻi
Constitution’s privacy provision. However, Civil Beat’s cross-
claim arose directly under HRS § 92F-15, as Civil Beat is an
aggrieved requester, and so the circuit court ultimately did not
err by evaluating the records under Peer News. That said, Civil
Beat is correct that Peer News and the constitutional privacy
inquiry are not the same.
34
The constitutional right of privacy is not coextensive
with the privacy interests protected by the legislature. The
plain language of the constitutional provision itself compels
this conclusion. Article I, section 6 provides: “The right of
the people to privacy is recognized and shall not be infringed
without the showing of a compelling state interest. The
legislature shall take affirmative steps to implement this
right.” SHOPO points to the last sentence of the constitutional
privacy guarantee in support of its argument that UIPA and
constitutional privacy protections are interrelated and that the
legislature may define the scope of the right. But requiring
the legislature to “implement” the right does not mean the
legislature is empowered to change its definition. “To
implement” means to “carry out” or to “accomplish.” Implement,
Merriam-Webster Dictionary, https://perma.cc/3M37-WU6M. That
the legislature is charged with “implement[ing]” the privacy
protection, then, means that the legislature must take
“affirmative steps” to “carry out” the constitution’s
protections; this responsibility does not equate to authority to
reformulate what it is, exactly, the constitution protects. 21
21 Contrast the right to privacy with the right to a clean and
healthful environment protected by article XI, section 9 of the Hawaiʻi
Constitution. The latter provides in relevant part: “Each person has the
right to a clean and healthful environment, as defined by laws relating to
environmental quality[.]” Haw. Const. art. XI, § 9 (emphasis added).
Because the constitution explicitly delegates to the legislature the
35
As in Peer News, SHOPO has pointed to statements made
at the constitutional convention in support of the argument that
the legislature may “broaden” what the constitution protects:
We in the bill of rights committee could have gone through
the process of listing all the different ways in which the
right to privacy should be protected, but we felt that this
was not our job as constitutional delegates, that we should
merely state broad principles and then let the legislature
balance all the different kinds of rights - the Freedom of
Information Act, the right of the people to know (though
not put in our Constitution, it still exists), the right of
attorneys to discover information, the freedom of the
press. The legislature should balance all of these
different competing rights and then have something which
would implement the right of privacy.
Peer News, 138 Hawaiʻi at 66 n.9, 376 P.3d at 14 n.9 (quoting 2
Proceedings of the Constitutional Convention of Hawaiʻi of 1978,
at 639 (1980)).
This language is consistent with the conclusion that
the constitutional directive to “implement” the right to privacy
meant that the legislature was tasked with determining “all the
different ways in which the right to privacy should be
protected.” Id. (emphases added). In other words, the drafters
envisioned that the legislature would craft laws that struck the
right balance between open government and individual privacy,
protecting the latter while ensuring the former. UIPA is one
responsibility of defining the right to a clean and healthful environment,
the framers “len[t] flexibility to the definition of the right over
time. . . . [It] can be reshaped and redefined through statute, ordinance
and administrative rule-making procedures and [is] not inflexibly fixed.” In
re Application of Maui Elec. Co., Ltd., 141 Hawai‘i 249, 261, 408 P.3d 1, 13
(2017) (citation omitted) (formatting altered). By contrast, the privacy
right is to be implemented, not defined, by the legislature. This difference
is meaningful.
36
such law that “implements article I, section 6[.]” SHOPO v.
SPJ, 83 Hawaiʻi at 396, 927 P.2d at 404; see also Painting Indus.
of Hawaiʻi Mkt. Recovery Fund v. Alm, 69 Haw. 449, 452, 746 P.2d
79, 81 (1987). But the plain language of the constitutional
provision and the intent of the drafters do not support the
contention that the legislature, while obligated to take steps
to protect privacy, is empowered to reconstitute what the
constitutional provision itself protects.
Indeed, any other conclusion would result in
absurdity. As Civil Beat points out, construing UIPA to be
coextensive with the constitution results in the absurdity that,
because UIPA bears only on government personnel records, public
employees would seem to enjoy heightened constitutional
protections relative to the rest of the citizenry. In fact,
because the statute as it existed until Act 47 carved out county
police officers specifically, the constitution would offer even
more protections to police than to other public employees.
These are not tenable results.
Rather, the constitution “establishes a floor” upon
which the legislature is free to impose additional privacy
protections, and to extend those protections to different
groups. Peer News, 138 Hawaiʻi at 66, 376 P.3d at 14. We
considered the legislature’s authority to impose heightened
privacy protections in Peer News. “[A]rticle I, section 6
37
establishes a floor for protection of privacy rights, but does
not preclude the legislature from providing greater protection.”
Id. Said differently, “the legislature is [not] powerless to
amend the statutory right to privacy to provide protections
beyond what was discussed in SHOPO v. SPJ.” Id. But those
legislatively-created protections are, as we noted, statutory.
We also went on to reject SHOPO’s contention that “it is the
[l]egislature’s exclusive role to ‘define’ the constitutional
privacy right.” Id. In short, while the content of what the
constitutional privacy provision protects remains bedrock, the
legislature is tasked with implementing those protections, and
it may also heighten them as it deems appropriate. 22 It has done
both in UIPA, first by protecting from disclosure documents
“which, if disclosed, would constitute a clearly unwarranted
invasion of personal privacy,” HRS § 92F-13(1), and (pre-Act 47)
by widening the scope of what constitutes “significant privacy
22 SHOPO points to State v. Kam, 69 Haw. 483, 748 P.2d 372 (1988),
as an example of this court “broadening [] the right of privacy protected by
article I, section 6[.]” Kam reversed the convictions of two booksellers who
had been charged with “promoting pornography” because, “[s]ince a person has
the right to view pornographic items at home, there necessarily follows a
correlative right to purchase such materials for this personal use, or the
underlying privacy right becomes meaningless.” 69 Haw. at 495, 748 P.2d at
380. Rather than representing a “broadening” of the privacy right, the Kam
case indeed strikes to the very core of the right to privacy: “the right to
control certain highly personal and intimate affairs of his own life,”
including what one chooses to read in the sanctuary of the home. Id. at 492,
748 P.2d at 378 (quoting Stand. Comm. Rep. No. 69 in 1 Proceedings of the
Constitutional Convention of Hawai‘i of 1978, at 674-75 (1980)).
38
interest” beyond what the constitution mandates, HRS § 92F-
14(b)(4).
This leads to the question: what, exactly, does the
constitution protect? Civil Beat is correct that Peer News did
not overrule SHOPO v. SPJ in its entirety. Peer News concluded
that SHOPO v. SPJ was not controlling under the circumstances
because SHOPO v. SPJ’s conclusion that a government employee’s
misconduct records were not protected by the constitutional
privacy right did not bear on the issue of whether “disclosure
would violate the police officers’ privacy interests under the
UIPA, as amended by Act 242.” 138 Hawaiʻi at 65-66, 376 P.3d at
13-14. Thus, the Peer News court was clear that it was ruling
on statutory grounds, and we have more recently cited SHOPO v.
SPJ for its constitutional principles. See Civil Beat Law Ctr.
for the Pub. Interest, Inc. v. City and County of Honolulu, 144
Hawaiʻi 466, 480, 445 P.3d 47, 61 (2019). Indeed, we reaffirmed
the vitality of SHOPO v. SPJ in Peer News itself, clarifying
that information not endowed by a “significant privacy interest”
per HRS § 92F-14 was subject to the “scintilla” test:
“[p]ursuant to SHOPO v. SPJ, if a police officer is discharged
rather than suspended as a result of a disciplinary action” – a
carve-out under HRS § 92F-14 but inapplicable to the sought
records in that case – “disclosure would be required upon
showing a mere ‘scintilla’ of public interest in disclosure.”
39
Peer News, 138 Hawaiʻi at 68 n.11, 376 P.3d at 16 n.11 (citation
omitted).
Thus, SHOPO v. SPJ’s constitutional holding – that
“information regarding a police officer’s misconduct in the
course of his or her duties as a police officer is not within
the protection of Hawaiʻi’s constitutional right to privacy” -
remains good law. 83 Hawaiʻi at 397, 927 P.3d at 405. The SHOPO
v. SPJ court arrived at this conclusion by considering “the
history of article 1, section 6 . . . , our prior interpretation
of that section, and the great weight of authority from other
jurisdictions[.]” Id. The court noted that reports from the
1978 Constitutional Convention indicate the drafters intended to
prevent
the possible abuses in the use of highly personal and
intimate information in the hands of government or private
parties but [privacy] is not intended to deter the
government from the legitimate compilation and
dissemination of data. More importantly, this privacy
concept encompasses the notion that in certain highly
personal and intimate matters, the individual should be
afforded freedom of choice absent a compelling state
interest.
Id. (citing Comm. Whole Rep. No. 15 in 1 Proceedings of the
Constitutional Convention of Hawaiʻi of 1978, at 1024
(1980)).
SHOPO v. SPJ analogized “highly personal and intimate
information” to that protected by the tort of invasion of
privacy: “Sexual relations, for example, are normally entirely
40
private matters, as are family quarrels, many unpleasant or
disgraceful or humiliating illnesses, most intimate personal
letters, most details of a man’s life in his home, and some of
his past history that he would rather forget.” Id. at 398, 927
P.2d at 406 (alterations omitted) (citing Restatement (Second)
of Torts § 652D cmt. B (Am. Law Inst. 1977)). The court agreed
with other jurisdictions that had concluded 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 Hawaiʻi’s constitutional right to privacy.”
Id. at 399, 927 P.2d at 407. While public employees’ personnel
records might contain “highly personal and intimate
information,” the contents of those records that related to
misconduct did not implicate the constitution. Id. at 399-400,
927 P.2d at 407-08.
Reading Peer News and SHOPO v. SPJ together, an agency
may (and “generally should” per OIP Op. Ltr. No. 06-04, at 4)
withhold records when the information contained therein
implicates a significant privacy interest per HRS § 92F-14 and
the public’s interest does not outweigh the privacy interest.
If a denied requester brings suit, the court must review whether
that determination was correct, applying Peer News. But when an
41
agency has determined that it may or must disclose pursuant to
UIPA, any recourse is to the constitution (or, if applicable, a
different confidentiality statute). The mere fact that the
records relate to a statutory privacy interest recognized by HRS
§ 92F-14 does not mean that the agency’s decision to disclose
violates the constitution (and indeed, as discussed in Part
IV.C.1 below, the statutory privacy interest invoked in this
case no longer exists). Rather, as we settled in SHOPO v. SPJ,
the agency’s decision should only be reversed if the information
in the records is of a “highly personal and intimate” character.
Accordingly, the circuit court erred by applying UIPA’s
substantive standards to SHOPO’s complaint after correctly
concluding SHOPO lacked a cause of action to enforce UIPA.
C. UIPA Compelled Disclosure of the Redacted Arbitration Award
and Closing Report
Although the circuit court erred by applying the Peer
News test – which is rooted solely in the statutory protections
of UIPA – to SHOPO’s complaint when SHOPO lacked a cause of
action to enforce UIPA, Civil Beat’s cross-claim squarely raised
the issue of whether UIPA mandates the disclosure of the sought
records. On appeal, SHOPO challenges the circuit court’s
application of the Peer News balancing test. We agree with the
circuit court and hold that UIPA requires the disclosure of the
redacted arbitration award and closing report.
42
1. Act 47 governs this case
We first address what version of UIPA applies to this
case in light of the legislature’s passage of Act 47 while the
appeal was pending. HRS § 92F-14(b)(4) recognizes a significant
privacy interest in a personnel file, except for employment
misconduct information resulting in suspension or discharge;
while the misconduct information exception formerly did not
apply to “county police department officers” (save those cases
resulting in an officer’s discharge), Act 47 amended the law
such that officers’ misconduct records are now treated the same
as those of any other public employee. Civil Beat and the City
argue that there is now no longer a statutory “significant
privacy interest” in police misconduct records, a provision that
was the “linchpin” of SHOPO’s arguments throughout the
litigation. 23 SHOPO responds that Act 47 does not apply to this
23 This issue has been framed by the parties as one of mootness.
Civil Beat argues that SHOPO “no longer has an effective remedy” because
“[i]t would be irrelevant if a court declared whether the public interest
outweighed Sgt. Cachola’s privacy interests[.]” The City agrees, urging us
to draw from federal law. In United States Department of Justice v.
Provenzano, 469 U.S. 14 (1984), for instance, the Supreme Court accepted
certiorari to resolve the discrete question of whether a certain statute was
a “withholding statute” within the meaning of FOIA; when Congress changed the
law to make unambiguously clear that the answer was “no,” the Court
determined the case was moot. Id. at 15; see also United States v. Microsoft
Corp., 138 S. Ct. 1186, 1188 (2018); United States Dep’t of Treasury v.
Galioto, 477 U.S. 556, 559-60 (1986). The City contends that, as in those
cases, “SHOPO is asking this Court to interpret and apply a provision[] of
the law no longer applicable to the records at issue,” and where a change in
law “conclusively resolves any question” of the propriety of the challenged
disclosure, the dispute is moot.
While we agree Act 47 affects the outcome of this case, we
disagree that it moots the case. “A case is moot if it has lost its
43
dispute because the request was made before Act 47 took effect,
and that applying Act 47 would constitute retroactive
application of a new law, which is generally forbidden. 24
No one disputes that the records are not subject to
the old law simply because they were created before Act 47 was
passed. 25 The parties disagree, however, about whether the
timing of the request for the records should be dispositive.
Per SHOPO, we must apply the law in effect at the time of the
request (which, here, was pre-Act 47), and any other reading of
the law would impose impermissible retroactive effect. Civil
Beat and the City argue the law as it exists now should govern
because the legislature intended that “going forward, the public
be able to access [these] records,” and applying a new law is
only impermissible when a right has vested.
character as a present, live controversy of the kind that must exist if
courts are to avoid advisory opinions on abstract propositions of law.”
Kahoʻohanohano v. State, 114 Hawai‘i 302, 332, 162 P.3d 696, 726 (2007). As
explained in this opinion, not all of the records fall outside the purview of
Peer News, even applying Act 47, and SHOPO raises procedural arguments that
require our attention separate and apart from Act 47. In short, the dispute
remains “live.” Id.24 Act 47 took effect “upon its approval” – September 15, 2020. Act
47 § 7.
25 This was settled in SHOPO v. SPJ. In that case, two separate
Acts threatened to affect the litigation, and regarding the first, this court
addressed whether records that were created before amendments to UIPA were
subject to the old or the new version of the law. The court held that the
relevant Act “affects only an agency’s prospective duty of disclosure” and
that duty does not change depending on when the records came into existence.
83 Hawaiʻi at 389-90, 927 P.2d at 397-98.
44
Although SHOPO is correct that retroactive application
of a new law is disfavored and must be supported by clear
legislative intent, applying Act 47 to this case would not be
applying it retroactively. “Every statute which takes away or
impairs vested rights acquired under existing laws, or creates a
new obligation, imposes a new duty or attaches a new disability
in respect to transactions or considerations already past, must
be deemed retrospective.” Taniguchi v. Ass’n of Apartment
Owners of King Manor, Inc., 114 Hawaiʻi 37, 47, 155 P.3d 1138,
1148 (2007) (quoting Graham Const. Supply, Inc. v. Schrader
Const., Inc., 63 Haw. 540, 545, 632 P.2d 649, 652 (1981)). Act
47 “imposes a new duty” of disclosure onto agencies, and that
duty applies prospectively – which is why SHOPO is correct that
the City is not obligated to review all past UIPA requests and
ensure they complied with the Act.
“However, a statute does not operate retroactively
merely because it relates to antecedent events, or because part
of the requisites of its action is drawn from time antecedent to
its passing, but is retroactive only when it is applied to
rights acquired prior to its enactment.” Emps. Ret. Sys. of the
Territory of Hawaii v. Wah Chew Chang, 42 Haw. 532, 536 (Haw.
Terr. 1958) (citation omitted). Although there are antecedent
events at issue here – namely the initial UIPA request – no
rights vested by virtue of the fact that the records request was
45
made while the old version of the law was in effect (even under
the tenuous assumption that the records could have been withheld
pre-Act 47). In SHOPO v. SPJ, we cited approvingly to a Texas
Supreme Court opinion that explained: “The Legislature has not,
by determining that government information formerly kept
confidential should be disclosed, impaired any vested right of a
claimant to the confidentiality of the information.” 26 Indus.
Found. of the S. v. Texas Indus. Acc. Bd., 540 S.W.2d 668, 677
(Tex. 1976); SHOPO v. SPJ, 83 Hawaiʻi at 390, 927 P.2d at 398
(citing to Indus. Found. for the principle that the “Open
Records Act does not impair any vested right”).
Moreover, “[w]hen the intervening statute authorizes
or affects the propriety of prospective relief, application of
the new provision is not retroactive.” Landgraf v. USI Film
Prod., 511 U.S. 244, 273 (1994). This litigation turns on
relief that is equitable in nature: SHOPO seeks an injunction
preventing, essentially, the disclosure of the records, and
“relief by injunction operates in futuro[.]” Id. at 274. Civil
Beat seeks the opposite: an order mandating that the records be
disclosed. “Disclosure . . . takes place only in the present or
the future.” Wisniewski v. Kownacki, 851 N.E.2d 1243, 1249
(Ill. 2006).
26 And indeed, as set forth above, there is simply no right of
nondisclosure under UIPA, and no right would therefore be impaired by
applying Act 47 to this case.
46
SHOPO v. SPJ arose under similar circumstances, and
SHOPO argues we should follow the approach of that case. Act
242 was passed in 1995 during the pendency of the litigation.
SHOPO v. SPJ, 83 Hawaiʻi at 384, 927 P.2d at 392. As we later
interpreted it in Peer News, Act 242 expanded the scope of HRS
§ 92F-14’s privacy interest for police officers’ misconduct
records to extend to all records except those resulting in the
officer’s discharge. We considered whether the change mooted
the litigation insofar as it was then clear that at least some
of the sought records – those relating to officer suspensions –
would not be subject to disclosure after Act 242 took effect:
The argument is without merit. Section 4 of Act 242
expressly provides that “[t]his Act does not affect rights
and duties that matured, penalties that were incurred, and
proceedings that were begun, before its effective date.”
1995 Haw. Sess. L. Act 242, § 4 at 643. The instant
proceedings were begun well before the July 6, 1995
effective date and are, therefore, not affected by Act 242.
Accordingly, we hold that Act 242 does not moot this
litigation.
Id. at 391, 927 P.2d at 399.
SHOPO v. SPJ’s mootness holding is distinguishable.
Act 47 does not have a savings clause, and there is therefore no
evidence the legislature intended ongoing litigation to be
unaffected by the Act. Courts generally apply the law in effect
at the time they render their decision. Gov’t Emps. Ins. Co. v.
Hyman, 90 Hawaiʻi 1, 5, 975 P.2d 211, 215 (1999) (citing
Landgraf, 511 U.S. at 273, for the principle that, although in
47
tension with the presumption against retroactivity, “in many
situations, a court should ‘apply the law in effect at the time
it renders its decision.’”). Although “[t]hese judicial
principles of construction . . . do not apply if the legislature
expressly limits the temporal scope of the statute,” id., the
legislature did not do so here.
SHOPO has pointed to HRS § 1-3 (2009) to suggest that
Act 47 does not control here. HRS § 1-3 provides: “No law has
any retrospective operation, unless otherwise expressed or
obviously intended.” But this should not be read as a universal
“limit[ation on] the temporal scope of the statute.” Gov’t
Emps. Ins., 90 Hawaiʻi at 5, 975 P.2d at 215. Rather, HRS § 1-3
codifies the common law presumption against retroactivity – of
which, as explained above, application of Act 47 does not run
afoul because it does not impair existing rights in relation to
past events. 27
Indeed, the legislature frequently includes savings
clauses in legislation. See, e.g., 1995 Haw. Sess. Laws Act
27 Contrast HRS § 1-3 with a general savings statute, such as 5 Ill.
Comp. Stat. Ann. 70/4 (West 2016). Under Illinois law, the operation of that
statute elides the need to analyze whether any existing rights are impaired
by operation of a statute to the given case because the legislature has
prescribed that substantive laws shall not be applied to pending cases, while
procedural laws shall. Perry v. Dep’t of Fin. & Pro. Regul., 106 N.E.3d
1016, 1027 (Ill. 2018). In Illinois, “after determining that a change is
substantive, we need not reach the issue of whether application of the
substantive change would have a retroactive impact or operation” because the
legislature has explicitly set out the temporal applicability of substantive
amendments. Id.48
242, § 4 at 643; 2004 Haw. Sess. Laws Act 44, § 29 at 227. This
suggests a savings clause operates differently from the
retroactivity prohibition in HRS § 1-3, or else the former would
always be redundant. And Civil Beat correctly points out that
the legislature included a savings clause in an earlier draft of
Act 47, but ultimately removed it. HB 285, H.D. 1, S.D.2,
Proposed C.D.1 § 10, 30th Leg., Reg. Sess. (2020), available at
https://perma.cc/HF5K-ZFCR. Thus, the presumption that the law
as it currently exists applies, unless doing so would give a law
impermissible “retroactive operation” under HRS § 1-3 – that is,
it would impair existing vested rights – or the legislature has
spoken otherwise by, say, including a savings clause.
For the reasons above, the application of Act 47 would
not impair existing vested rights, nor has the legislature
indicated that Act 47 should not apply to pending cases.
Accordingly, Act 47 applies to this case.
2. To the extent the sought documents are not of the kind
enumerated in HRS § 92F-14(b)(4)(B)(i)-(iv), those
portions of the records remain subject to Peer News
That Act 47 applies does not end our analysis. SHOPO
rightly points out that the amendment to HRS § 92F-14 removed
the county police officer carve-out but did not alter the
general privacy interest in an employee’s personnel file. That
generally-applicable privacy interest is excepted for only five
categories of information “related to employee misconduct”: “(i)
49
The name of the employee; (ii) The nature of the employment
related misconduct; (iii) The agency’s summary of the
allegations of misconduct; (iv) Findings of fact and conclusions
of law; and (v) The disciplinary action taken by the agency[.]”
HRS § 92F-14(b)(4)(B)(i)-(v). To the extent information
contained in the records does not fall within one of the above
five categories, it remains part of the general “personnel file”
in which an employee retains a significant privacy interest and,
in turn, would be subject to the privacy/public interest
balancing test expounded in Peer News.
We must therefore determine whether and which parts of
the sought records fall within, and outside of, those five
categories. The arbitration award presents a straightforward
question – that record is composed almost entirely of findings
of fact and conclusions of law. 28 HRS § 92F-14(b)(4)(B)(iv).
Act 47 has therefore altered the law to remove the arbitration
award from the ambit of HRS § 92F-14’s “significant privacy
interest[s],” and the lower standard set out in SHOPO v. SPJ,
not the more stringent balancing test from Peer News, applies.
28 There is some prefatory language before the findings of fact and
conclusions of law describing the arbitration procedure – for instance, the
witnesses called and the names of the attorneys. Disclosure of this
information does not pose privacy concerns. Additionally, the arbitration
was redacted to remove, inter alia, the names of some witnesses and other
private information.
50
But whether or not some or all of the closing report
falls outside the enumerated categories of HRS § 92F-14(b)(4)(B)
presents a closer question. The closing report certainly
contains information about the nature of the misconduct and
HPD’s summary of the allegations of misconduct per HRS §§ 92F-
14(b)(4)(B)(ii)-(iii). However, the closing report arguably
goes beyond those statutory categories insofar as it provides a
considerable amount of detail, including extensive interviews
with those involved. But we need not and do not engage in the
kind of fine-tuned statutory interpretation of HRS § 92F-
14(b)(4)(B) that categorizing the closing report demands.
Rather, we assume, without deciding, that the closing report in
its entirety falls outside the scope of the enumerated
categories in HRS § 92F-14(b)(4)(B) and, in turn, remains
subject to Peer News. This is because, as Part IV.C.3 sets
forth, the records are subject to disclosure even under Peer
News.
3. Under SHOPO v. SPJ, more than a scintilla of public
interest weighs toward disclosure of the arbitration
award
The arbitration award must be disclosed. Under SHOPO
v. SPJ, even a scintilla of public interest warrants disclosure
of public records when there is no significant privacy interest
on the other side of the ledger, which is true of findings of
facts and conclusions of law related to police misconduct
51
resulting in suspension or discharge. 83 Hawaiʻi at 383–84, 927
P.2d at 391–92; see also Peer News, 138 Hawaiʻi at 69 n.11, 376
P.3d at 17 n.11. Black’s Law Dictionary defines “scintilla” as
a mere “spark or trace.” Scintilla, Black’s Law Dictionary
(11th ed. 2019). The “scintilla” test is therefore a low hurdle
that the arbitration award clears easily. The contents of that
document reveal why Sergeant Cachola – who was terminated after
a widely-circulated video portrayed him apparently assaulting a
woman – was reinstated to the force. The public’s interest in
understanding “the proper performance of public duty” and “how
the police department supervises its employees and responds to
allegations of misconduct” far surpasses the required scintilla.
Peer News, 138 Hawaiʻi at 73-74, 376 P.3d at 21-22.
4. The Peer News balancing test weighs toward disclosing
the redacted closing report
We assume without deciding that the redacted closing
report remains subject to Peer News for the reasons stated above
in Part IV.C.2. Applying the balancing test prescribed by that
case, we hold that the records must be disclosed.
Peer News evaluated the privacy exception codified in
HRS §§ 92F-13 and 92F-14 and concluded that “for a ‘significant
privacy interest,’” like that conferred to police officers in
their disciplinary records, “to constitute a ‘clearly
unwarranted invasion of personal privacy,’ the privacy interest
52
at stake must be balanced against the public interest in
disclosure of the information.” 138 Hawaiʻi at 68, 376 P.3d at
16. In other words, in order for records regarding police
misconduct to be exempt from disclosure under UIPA, the public
interest cannot outweigh the officer’s privacy interest. If it
does, disclosure would not be a “clearly unwarranted invasion of
privacy,” and an agency would be required to release those non-
exempt records.
While we did not prescribe the particulars of the
balancing test in Peer News, we provided some guiding
principles. We recognized in Peer News that while a police
officer has a significant privacy interest in their misconduct
records by statute, the public has an interest – often a
“compelling” one – in public accountability for the police. Id.
at 74, 376 P.3d at 22. We opined that based on legislative
history, “[t]he more egregious the misconduct, the more likely
the public interest would outweigh the individual privacy
interest.” Id. at 71, 376 P.3d at 19. We also emphasized that
records that furnish information to “gauge the police
department’s responsiveness to specific instances of misconduct
and assess whether the agency is accountable to itself
internally” would be of public interest. Id. at 74, 376 P.3d at
22 (brackets omitted) (quoting Rutland Herald v. City of
Rutland, 84 A.3d 821, 825 (Vt. 2013)). The public’s interest
53
extends to those investigating misconduct and those accused of
misconduct: “the public should be [as]sured that both the
activity of public employees suspected of wrongdoing and the
conduct of those public employees who investigate the suspects
is open to public scrutiny.” Id. (citation and brackets
omitted). And we noted:
Police officers are entrusted with the right to use force -
even deadly force in some circumstances - and this right
can be subject to abuse. Public oversight minimizes the
possibility of abuse by ensuring that police departments
and officers are held accountable for their actions. The
press’s access to records such as those at issue here is
one of the primary channels through which such public
oversight can operate.
Id.The circuit court correctly applied the Peer News
balancing test when it concluded that UIPA mandates the City to
disclose the redacted closing report. The sought records are of
significant public interest both for their value in shedding
light on HPD’s responsiveness to misconduct and to show why
Sergeant Cachola was found fit for public duty. While Sergeant
Cachola had a significant privacy interest in his disciplinary
records, the circuit court correctly concluded that, as a matter
of law, that interest is outweighed by the public’s interest.
On the public interest side of the ledger, “there is a
significant public interest in knowing how the police department
supervises its employees and responds to allegations of
misconduct.” Id. at 73–74, 376 P.3d at 21–22. The redacted
54
closing report provides such information. First, the closing
report, especially viewed in tandem with the arbitration award,
provides details worthy of public review about the information
giving rise to the initial termination decision and the reasons
for reinstatement. Second, the closing report contains
information about how officers immediately responding to the 911
call investigated the incident. The public’s interest in
understanding HPD’s response to misconduct extends from the
immediate response to the final disposition. In short, the
closing report is valuable to the public because its contents
help “gauge the police department’s responsiveness to specific
instances of misconduct and assess whether the agency is
accountable to itself internally.” Id. at 74, 376 P.3d at 22
(brackets and citations omitted).
The public also has an interest in understanding why
Sergeant Cachola was ordered back on the force. “[T]he
appropriate concern of the public as to the proper performance
of public duty is to be given great weight.” Id. at 73, 376
P.3d at 21 (quoting Cowles Publ’g Co. v. State Patrol, 748 P.2d
597, 605 (Wash. 1988)). The closing report reveals the facts
giving rise to his termination and subsequent reinstatement.
The allegations against Sergeant Cachola – domestic violence –
were serious and have been in the public eye for years. The
public’s ability to understand the conclusion that termination
55
was unwarranted is key to establishing public confidence that
Sergeant Cachola was deemed fit for the force.
On the other hand, we assume without deciding that
Sergeant Cachola has a “significant privacy interest” in his
misconduct records pursuant to HRS § 92F-14. But the public
interest here is indeed overwhelming, and the underlying events
giving rise to the misconduct allegations took place almost
entirely in public. And though the acts occurred while he was
off-duty, 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,” the public has an interest in disclosure. Id. (citation
omitted).
Throughout the litigation, SHOPO has encouraged
adopting the framework expounded by the concurrence in Peer
News, but SHOPO has failed to articulate why the factors in the
concurrence would point against disclosure. Nor do we agree
with any suggestion that the balancing test constitutes a
checklist. The concurrence identified the following factors
based on an OIP opinion letter: officer rank, “degree of
wrongdoing and strength of evidence,” other available means to
acquire the information, “whether the information sought sheds
light on a government activity,” and “whether the information
sought is related to job function[.]” Id. at 81–82, 376 P.3d at
56
29–30 (Pollack, J., concurring) (citing OIP Op. Ltr. No. 10-03
(Oct. 5, 2010)). While many of the factors cited by the Peer
News concurrence might be useful or relevant depending on the
circumstances of the individual case, they are neither necessary
nor dispositive. 29 The OIP opinion upon which the concurrence
relied was clear that these factors are “nonexclusive.” OIP Op.
Ltr. No. 10-03. Accordingly, the circuit court need not apply
each in turn to come to the correct legal conclusion. And that
the circuit court in this case did not address factors
identified by a concurring opinion, to which it was not bound,
is not grounds for reversal of a correct judgment. 30
29 While these factors may sometimes aid an agency or court in
evaluating whether UIPA requires disclosure, we offer three observations:
First, when it comes to police misconduct, the rank of the officer is
relevant insofar as a higher rank would weigh more heavily toward the public
interest. But the opposite is not true; that is, the public’s interest in
misconduct by a lower-ranked officer is not diminished simply because of
their rank. Police officers of all ranks “are entrusted with the right to
use force - even deadly force in some circumstances - and this right can be
subject to abuse.” Peer News, 138 Hawai‘i at 74, 376 P.3d at 22. Misconduct
by the rank-and-file is not necessarily shielded from disclosure under UIPA.
Second, for the same reason, “whether the information sheds light
on government activity” should not preclude disclosure under UIPA simply
because the sought document does not relate to a department’s oversight of
misconduct. Given the unique role police play in the community and the other
reasons stated in Peer News, the public has an interest understanding why a
particular officer is on the force. That a sought record can shed light on
public oversight can heighten public interest, but that a record bears only
on an individual officer should not necessarily diminish it.
Third, any consideration of alternative means of acquiring the
sought information should take into consideration the quality and difficulty
of obtaining these alternatives. If all non-private information is already
in the public domain, then this factor would counsel against disclosure. But
a requester should not be forced to settle for a poor or incomplete
substitute, nor should it be required to incur significant delay or financial
loss in seeking alternatives.
30 But applying the relevant factors here de novo, we note that
Cachola is a sergeant; he was accused of very serious wrongdoing; there are
57
In sum, the circuit court correctly concluded that the
report must be disclosed because of the seriousness and public
nature of the misconduct, and the public’s interest in
evaluating “[t]he proper performance of public duty” and
understanding how HPD “supervises its employees and responds to
allegations of misconduct.” Peer News, 138 Hawai‘i at 73-74, 376
P.3d at 21-22 (citation omitted). UIPA requires the disclosure
of the redacted closing report. 31
D. SHOPO Is Entitled Neither to Declaratory nor to Injunctive
Relief, and the City Was Not Required to Supply a Written
Explanation for Disclosure
We next turn to the other arguments raised by SHOPO’s
appeal. First, SHOPO argues that the circuit court did not
address its request for declaratory and injunctive relief, which
it sought to “explain[] what Defendant City’s duties and
responsibilities are under the UIPA following a public request
for police suspension records, and to order Defendant City to
no readily available alternative means to acquire the information; for the
reasons above, the information sheds light on police oversight and response
to misconduct; and while Sergeant Cachola was off-duty, the information bears
on his suitability to be a police officer. Contrary to SHOPO’s arguments,
these factors weigh toward, not against, disclosure.
31 While the closing report as a whole is subject to disclosure, we
ordered several additional redactions to protect personal, private
information of little interest to the public. Information like where those
involved in the incident – particularly nongovernmental witnesses – lived or
stayed and personal medical information fall in the ambit of “highly personal
and intimate information” protected by the Hawai‘i Constitution. SHOPO v.
SPJ, 83 Hawai‘i at 398, 927 P.2d at 406. If that information is unrelated to
the public’s interest in disclosure – as is the case here – it must be
redacted.
58
comply with those duties and responsibilities before releasing
confidential information for public dissemination.”
In fact, in addition to summarily dismissing all
remaining claims in the April 29, 2019 Order, the circuit court
did issue a conclusion of law regarding this requested relief:
14. The Court respectfully disagrees with SHOPO’s
claim or inference that the City did not conduct any kind
of balancing analysis and that therefore this Court is in
essence conducting the first balancing test for these
records. The Court sees no evidence in the record to
support this claim. Just because the agency is not
required to give a plaintiff a written/reasoned explanation
for disclosure does not mean no balancing test was
performed.
Nonetheless, SHOPO argues declaratory and injunctive
relief is warranted because “[the] City cannot be allowed to
circumvent its responsibilities and violate the undisputed
privacy rights of its employee.” Otherwise, “a flood of costly
litigation wherein the courts, not the responsible agencies,
will be forced to conduct the ‘highly factual’ initial balancing
test to determine whether the release of private information is
appropriate” will ensue. It urges this court to hold that under
UIPA, the agency must conduct the initial balancing inquiry, and
“[i]f the public’s interest in disclosure does not outweigh the
privacy interests of the individual police officers, such
disclosure . . . must be denied.” Here, SHOPO argues, it was
error for the court, not the City, to itself conduct this
balancing test.
59
The circuit court correctly dismissed the declaratory
and injunctive relief claims because these claims for relief
emanate from UIPA. For the same reasons explained in Part IV.A,
SHOPO lacks a cause of action to enforce UIPA here.
Even if that were not the case, dismissal of the
declaratory and injunctive relief claims would still be correct
because there is no basis in the statutory scheme to order the
relief for which SHOPO is asking. The circuit court rightly
concluded as a matter of law that “the agency is not required to
give a plaintiff a written/reasoned explanation for disclosure.”
And SHOPO’s argument that the City has failed to comply with
UIPA is premised on an incorrect construction of the statute.
As set forth above, UIPA does not forbid disclosure, so an
agency’s “duties” under UIPA do not include performing a
balancing test to determine whether it must withhold the
records. The opposite is true; the City was required to
determine whether the public interest outweighs the private
interest such that UIPA mandated that it release the records.
The circuit court rightly declined to impose a procedural burden
– written opinions by an agency to all affected parties upon
compliance with its UIPA duties – that nowhere exists in Chapter
92F.
SHOPO also claims it was denied the right to appeal to
the OIP. This contention is also meritless as SHOPO never had a
60
right to appeal to the OIP. 32 The OIP has jurisdiction pursuant
to HRS § 92F-42(1) to review an agency’s granting of access, and
we see no reason why SHOPO could not have requested such review
here. But an agency appeal to the OIP may only be brought under
HRS § 92F-15.5 (2012), which, like HRS § 92F-15, allows for
agency appeals to those who have been denied access. 33 This
scheme is consistent with the analysis above: since UIPA
exemptions do not require nondisclosure, SHOPO had no right to
seek relief from the OIP based on a grant of access.
32 For the same reason, the OIP’s regulations in the Hawai‘i
Administrative Rules (HAR) § 2-73-15, which SHOPO argues “could have” been
referred to by the circuit court in applying the Peer News test, are
irrelevant. For one, SHOPO was not entitled to appeal to the OIP; for
another, that regulation sets forth the procedures for an OIP appeal, not the
substantive standard the agency applies.
33 HRS § 92F-15.5, “Alternative method to appeal a denial of
access,” provides:
(a) When an agency denies a person access to a government
record, the person may appeal the denial to the office of
information practices in accordance with rules adopted
pursuant to section 92F-42(12). A decision to appeal to
the office of information practices for review of the
agency denial shall not prejudice the person’s right to
appeal to the circuit court after a decision is made by the
office of information practices.
(b) If the decision is to disclose, the office of
information practices shall notify the person and the
agency, and the agency shall make the record available. If
the denial of access is upheld, in whole or in part, the
office of information practices shall, in writing, notify
the person of the decision, the reasons for the decision,
and the right to bring a judicial action under section 92F-
15(a).
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E. SHOPO Was Not Denied Due Process
SHOPO’s claim that it was denied due process is also
meritless. SHOPO argues that it was denied “an opportunity to
conduct discovery, to review the materials submitted to the
Court including the City’s redactions to the subject records,
and an opportunity to provide additional materials and
information for the Circuit Court’s consideration.” It contends
these actions constitute a violation of their due process right
to notice and an opportunity to be heard in a meaningful time
and in a meaningful manner.
SHOPO’s right to due process was not violated, even
assuming the circuit court’s actions implicate procedural due
process. “Due process is not a fixed concept requiring a
specific procedural course in every situation.” Bank of Hawaii
v. Kunimoto, 91 Hawaiʻi 372, 388, 984 P.2d 1198, 1214 (1999)
(citing Sandy Beach Def. Fund v. City Council of the City and
Cnty. of Honolulu, 70 Haw. 361, 378, 773 P.2d 250, 261 (1989))
Rather, “due process is flexible and calls for such procedural
protections as a particular situation demands.” Id. (citing
Sandy Beach Def. Fund, 70 Haw. at 378, 773 P.2d at 261). In
civil cases, the Hawai‘i Rules of Civil Procedure (HRCP) set
forth procedures for discovery and summary judgment; pursuant to
HRCP Rule 56(f), the circuit court may deny a motion for summary
judgment if the opposing party establishes that additional
62
discovery is necessary. In U.S. Bank National Association v.
Castro, 131 Hawaiʻi 28, 313 P.3d 717 (2013), the defendants
argued that the circuit court erred by not granting them
additional time for discovery prior to ruling on a motion for
summary judgment. Id. at 39, 313 P.3d at 728. The defendant’s
memorandum in opposition to the motion for summary judgment
mentioned a desire for additional time for discovery related to
the “underlying transaction”; specifically, the defendants hoped
to find an expert on “problems inherent in the securitization,
sale and transfer of notes and mortgages, such as predatory
lending practices[.]” Id. (quotation marks omitted). However,
this court noted that the motion for summary judgment was based
on an absence of a genuine issue of material fact as to U.S.
Bank’s entitlement to a judgment for possession and writ of
possession, and that the defendants had not explained how
discovery related to issues with mortgage lending as a whole
would help them to establish a genuine issue of material fact
related to the motion for summary judgment. Id. at 39-40, 313
P.3d at 728-29.
This case resembles U.S. Bank. SHOPO stated its
desire for an opportunity to review the unredacted version of
the records submitted to the court and requested the opportunity
to submit additional information for the court’s review in an
opposition brief, but it has not explained how being allowed to
63
do either of these things would enable it to demonstrate that
there is a genuine issue of material fact about whether the
documents should be disclosed. 34 In short, SHOPO has not
sufficiently explained why additional process was due here.
SHOPO – which is not the custodian of these documents - has no
more entitlement to review the in camera records than Civil Beat
did. It would eviscerate the purpose of in camera review to
allow an opposing party to see the in camera record in order to
frame its argument. Ultimately, the only evidence required for
the circuit court to conclude that UIPA mandated disclosure as a
matter of law was the documents themselves, and it does not
appear that the circuit court precluded SHOPO from submitting
additional materials in any event. Thus, the circuit court did
not violate SHOPO’s due process rights by not providing SHOPO
with the opportunity to conduct discovery, review the records,
or submit additional materials.
F. The CBA Is Irrelevant
SHOPO contends that the circuit court erred by not
considering the fact that “the requested information was
confidential under Article 13 of the CBA between SHOPO and [the]
City.” This court settled in SHOPO v. SPJ that an agency may
34 To the extent the briefs address why SHOPO needed discovery, it
argues that it needed information on how the City conducted the balancing
test because of the lack of written explanation. But for the reasons
explained above, SHOPO’s claim regarding this issue was properly dismissed.
64
not collectively bargain away its duties under UIPA – compliance
with the statute is “non-negotiable.” 83 Hawaiʻi at 404–05, 927
P.2d at 412–13. Nothing in Peer News altered this holding. An
agency must comply with UIPA, and if the CBA would prevent that,
it is unenforceable. 35 Id. Here, UIPA mandates disclosure, and
the CBA is therefore irrelevant.
SHOPO argues that the CBA was relevant insofar as it
could have been considered under the Peer News balancing test;
if the information could be ascertained in a way that does not
run afoul of the CBA, SHOPO relies on Justice Pollack’s
concurrence to argue that the “[a]vailability of other means to
obtain the information” would weigh against disclosure. Peer
News, 138 Hawaiʻi at 81, 376 P.3d at 29 (Pollack, J.,
concurring). Specifically, SHOPO argues that the disclosures
required by HRS § 52D-3.5 (Supp. 2020), a provision that
requires each county police chief to submit annual reports to
the legislature describing misconduct incidents that resulted in
the suspension or discharge of a police officer, would suffice
to meet Civil Beat’s request without violating the CBA. 36
35 On the other hand, when it is in the agency’s discretion whether
to disclose records to the public – i.e., records for which an exemption
applies, but the agency is not forbidden from disclosing (what we described
in Part IV.A as category (2) documents) – complying with a CBA’s
confidentiality requirement would not violate UIPA. However, this case does
not present such a scenario.
36 Act 47 also amended HRS § 52D-3.5 to add the identity of the
disciplined officer to the yearly reports. 2020 Haw. Sess. Laws Act 47, § 2
at 365.
65
As explained above, under Peer News, alternative means
of acquiring the sought information may sometimes be relevant to
the balancing test, but a requester must not be forced to settle
for a poor substitute or required to undertake a more burdensome
process to ascertain the information if UIPA would otherwise
mandate its disclosure. Either of these consequences would be
anathema to the transparency purpose of UIPA.
The legislative disclosures pursuant to HRS § 52D-3.5
are indeed a poor substitute for the arbitration award and
closing report. HRS § 52D-3.5 does not require detailed
information about the misconduct incident – just a summary of
“the facts and the nature of the misconduct,” HRS § 52D-
3.5(b)(1) – and the yearly disclosures reveal nothing about the
justification for a particular disciplinary action or the
investigative process, which ultimately form the core of the
public interest in UIPA disclosure of police misconduct records.
Peer News, 138 Hawaiʻi at 73-74, 376 P.3d at 21-22.
G. The De Novo Standard of Review Is Consistent with a “Highly
Factual” Balancing Test
SHOPO claims that “[t]he [circuit c]ourt’s UIPA
balancing test appears to have been conducted ‘as a matter of
law’ and not based on the ‘highly factual’ standard required by
the Hawaii Supreme Court.” It relies on the fact that in Peer
News, we declined to ourselves apply the balancing test “given
66
the limited factual record,” 138 Hawaiʻi at 55, 376 P.3d at 3,
as well as Justice Pollack’s concurrence, which described the
analysis set forth in OIP opinions as “highly factual[.]” Id.
at 78, 376 P.3d at 26 (Pollack, J., concurring).
The circuit court did not err by determining that the
records must be disclosed “as a matter of law,” nor is this in
tension with a “highly factual” balancing test. HRS § 92F-15(b)
instructs that “[i]n an action to compel disclosure” – which
Civil Beat’s counterclaim is – “the circuit court shall hear the
matter de novo[.]” The balancing test prescribed by Peer News
requires careful consideration of the facts, to be sure, and the
circuit court did so here in the course of in camera review,
precisely as Peer News instructed. 138 Hawaiʻi at 73, 376 P.3d
at 21 (“As contemplated by HRS § 92F–15, the court should
conduct an in camera review of the records and determine on a
case-by-case basis whether disclosure is warranted.” (footnote
omitted)). The facts required to make that determination are,
ultimately, the contents of the records. The outcome of the
test based on in camera review – the determination of whether
disclosure is required – is a question of law.
H. The Circuit Court’s Acknowledgment that the Process Is
“Time-Consuming” Did Not Reflect a Lack of Careful Review
SHOPO faults the circuit court for noting that the
process of reviewing the records in camera was “time-consuming.”
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In context, the circuit court’s “time-consuming” comment was
merely an acknowledgement of the difficulty in sifting through
records to weigh the public interest against the privacy
interest. 37 Noting this challenge is a far cry from “refusing to
conduct a thorough and complete UIPA balancing test,” as SHOPO
alleges. The circuit court’s order reflects thoughtful
consideration of the interests on either side of the Peer News
balancing test, and as explained above, the court came to the
correct conclusion. The records are subject to disclosure.
I. The Circuit Court Did Not Err by Concluding that HRS
§ 92F-12(a)(2) Requires Disclosure of the Arbitration Award
The circuit court determined that “there is a separate
and independent ground to release the arbitration award – the
requirement to disclose adjudicative orders pursuant to HRS
§ 92F-12(a)(2).” That statute requires disclosure of “[f]inal
opinions, including concurring and dissenting opinions, as well
as orders made in the adjudication of cases[.]” HRS § 92F-
12(a)(2). SHOPO does not challenge whether the arbitration
award falls into that category; rather, it argues that a
37 The full paragraph from the April 29, 2019 order reads:
The Court finds that the HPD/City’s disclosure of the
proposed redacted closing report is not clearly
unwarranted. HPD is plainly trying to be transparent
regarding the disciplinary investigation of the officer who
was discharged and then reinstated, while balancing the
privacy interests of everyone else involved. It is a fine
line, and time-consuming, to weigh these issues page by
page.
68
disclosure under HRS § 92F-12(a)(2) is not exempt from the
exceptions of HRS § 92F-13, and the “[c]ircuit [c]ourt was wrong
to conclude that it [was].”
SHOPO is mistaken; the circuit court did not conclude
that the arbitration award was exempt from HRS § 92F-13. The
circuit court’s order stated: “Although the arbitration award,
as a final adjudication award, is a mandatory disclosure under
section 92F-12(a)(2), it is still subject to the privacy
interests per section 92F-13(1).” (Emphasis added.)
J. This Record Provides No Basis to Prohibit Disclosure of the
Investigative Report
SHOPO is correct that the circuit court’s order does
not prohibit the City from releasing the full investigative
report. The order also does not require it, and Civil Beat has
not appealed that component of the court’s decision. SHOPO’s
request that we remand for the circuit court to enjoin the
report’s disclosure is meritless because SHOPO does not have a
cause of action to compel an agency to withhold a record under
UIPA for the reasons explained in Part IV.A. Nor does SHOPO
contend on appeal that the investigative report violates the
constitutional privacy right. HRAP Rule 28 (“Points not argued
may be deemed waived.”). There is therefore no basis on this
record to order the circuit court to enjoin the disclosure of
the investigative report.
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V. CONCLUSION
For the foregoing reasons, the circuit court erred by
applying UIPA standards to SHOPO’s complaint when SHOPO lacked a
cause of action to sue under UIPA, but it nonetheless correctly
resolved Civil Beat’s counterclaim by application of the Peer
News test and correctly concluded that UIPA mandated the
disclosure of the redacted arbitration award and closing report.
We accordingly (1) affirm the August 13, 2018 Order; (2) affirm
the September 28, 2018 Order, except that to the extent that it
conflates the constitutional and statutory balancing tests, that
order is vacated; (3) vacate the January 3, Order; and (4)
affirm the April 29, 2019 Order. The circuit court’s May 24,
2019 final judgment is affirmed.
Keani Alapa (Vladimir /s/ Mark E. Recktenwald
Devens with him on the
briefs) for appellant /s/ Paula A. Nakayama
Robert Brian Black /s/ Sabrina S. McKenna
(Lisa Emily Engebretsen
with him on the briefs) /s/ Michael D. Wilson
for cross-appellant
/s/ Peter T. Cahill
Duane W. H. Pang
(Paul S. Aoki and Molly A.
Stebbins with him on the
briefs) for appellee
70