Judge violated constitutions, court finds

The Hawaii Supreme Court on Monday issued an opinion that took issue with the way a state judge sealed documents in a criminal case, with the justices underscoring the need to protect confidential information while ensuring the public’s right to access judicial proceedings and records.

The five justices issued the opinion in a case in which Oahu Publications Inc., owner of the Honolulu Star-Advertiser, challenged the way probable-cause documents were sealed in a Hawaii island criminal matter.

Ethan Ferguson, a state Department of Land and Natural Resources law enforcement officer, in January was accused of sexually assaulting a 16-year-old girl at Lalakea Beach Park on the Big Island while on the job.

The probable-cause documents, which included confidential information such as the girl’s name and address, and Social Security numbers of people in photo lineups, mistakenly were filed as part of the public record with nothing redacted, which is the standard way to shield information that is protected from public disclosure.

Upon discovery of the mistake, county prosecutors filed a motion to seal the documents, which the court approved without any advance notice to the public or a hearing. But a redacted public version of the documents, which omitted the confidential information, was not filed until seven days later.

The order by Judge Barbara Takase, who has since retired, sealing the original documents did not direct the state to expeditiously file a redacted version or provide notice that any person who objected to the sealing could request a hearing.

The newspaper said in its petition to the high court that the sealing process used in the Ferguson case violated court rules and the state and U.S. constitutions.

The justices, while noting that the lower court properly took prompt action to protect confidential information, essentially agreed with the newspaper’s key points.

The justices said the delay in filing the redacted documents and the omission in the judge’s order to give notice to people wishing to object “compromised the balance of protection of personal information … and the public’s right of access to judicial proceedings and documents provided by the federal and state constitutions.”

The opinion was written by Associate Justice Richard Pollack on behalf of the five members of the Supreme Court.

The justices, however, did not grant the relief sought by the newspaper, saying such relief was already provided by the lower court or was unnecessary.

The newspaper asked that Takase be prohibited from enforcing her sealing order and that she make public the nonconfidential information in the documents. It also asked that she refrain from future document sealing in criminal cases without first providing public notice and an opportunity to hear possible objections.

When the newspaper filed the petition in January, its attorney, Jeff Portnoy, disputed the notion that the request was moot. He said the primary reason for filing it was to have the Supreme Court “make sure trial judges are aware of the law of the land.”

The state Attorney General’s Office issued a brief statement about Monday’s opinion.

“Today’s decision by the Supreme Court affirms that Judge Takase, who is now retired, acted properly in protecting confidential information,” Attorney General Doug Chin said in an email.