Let public know about misconduct by police officers

The Legislature created the state’s Uniform Information Practices Act because, as the law plainly and correctly states, “Opening up the government processes to public scrutiny and participation is the only viable and reasonable method of protecting the public’s interest.”

Note the absolute language: Not just one method, or the preferred method, but the only viable and reasonable method of vesting the people with the authority that is properly theirs in a democracy.

So it stands to reason that efforts to keep governmental operations secret from the public, unless within carefully defined boundaries, should be viewed as an erosion of democracy itself.

In 1995, the Legislature thoughtlessly pushed back those boundaries. Acting at the behest of the State of Hawaii Organization of Police Officers (SHOPO), lawmakers inserted a line deep within UIPA that said police officers have a “significant privacy interest” in records of disciplinary action short of termination — an exception enjoyed by no other government worker who has been suspended for misconduct on the job. The amendment was poorly drafted and, more significant, conflicts with the clear intent of UIPA.

Not surprisingly, the result has been years of argument and litigation.

Last week, the legal arguments reached the Hawaii Supreme Court, where SHOPO and the online media organization Civil Beat debated the role of the courts and the Legislature in balancing the public interest against the privacy rights of police officers.

Civil Beat wants access to the disciplinary records of 12 officers who were suspended for 20 days or more between 2003 and 2012, including one case in which an officer was suspended for 626 days for hindering a federal investigation.

SHOPO wants to keep those records closed, and cited the 1995 amendment to UIPA as justification.

The law, logic and common sense favor Civil Beat’s position.

The Supreme Court in 1996 found that a police officer’s disciplinary suspension records were neither highly intimate nor personal, and thus not protected under the state Constitution’s right to privacy. In 1997, the state Office of Information Practices, taking into account the Legislature’s 1995 UIPA amendment, came to a similar conclusion. And last year, Circuit Judge Karl Sakamoto, citing both the Supreme Court and OIP, ruled that the Honolulu Police Department must release the records of the 12 officers sought in this case.

SHOPO’s attorney, Keani Alapa, argued that it’s the Legislature’s role to balance the interests of the public against the officers’ privacy rights, and that it did so in part through the 1995 amendment.

Perhaps that was the lawmakers’ intent, but the amendment has created a problem for the Supreme Court to unravel. This problem could be cleared up fairly easily by the Legislature, which considered repealing UIPA’s exception for police officers last session. It should do so next year.

Alapa questioned the need to identify the officers disciplined. He asked the court, “What’s the great public interest in having the identities disclosed? … It doesn’t tell the public how government operates.”

Really? A police officer is an armed agent of the government with broad powers to detain and arrest citizens. A police department that takes disciplinary action against a misbehaving officer is a government agency. It should be self-evident that a full accounting of the disciplinary action would tell the public “how government operates.”

Even if there are legitimate privacy concerns that would preclude identifying the officer — and to be fair, there might be such cases — those concerns should be subject to a case-by-case balancing test, and the identity not presumptively protected from disclosure.

County police departments are required to provide the Legislature with an annual summary of misconduct by police officers, but the summaries are generally vague and provide few details about individual cases. Officers are not named.

This requirement hardly satisfies UIPA’s requirement that the government conduct its affairs “as openly as possible,” and it leaves the public with lingering, unresolved doubts about its police force.

More openness could resolve those doubts, building stronger police departments that enjoy the full confidence of the people they serve.