Using new nonprofit law center, Hawaii’s Civil Beat wins access to police misconduct records

In the flood of paperwork that made its way each year to the Hawaii legislature, a shocking statistic slipped under the radar: About once a week the Honolulu Police Department was suspending or firing an officer for misconduct.

Often the offenses were serious – abusing suspects, lying to federal investigators, tipping off drug dealers. And for nearly two decades the information was kept quiet. Legislators paid little attention to the annual reports. Officers who resigned or got suspended for misconduct were shielded by a political loophole in the state’s public records law. Paperwork documenting the wrongdoing was often destroyed.

Civil Beat reporter Nick Grube didn’t know any of this when, after a few months on the job, he decided to pull some files on police misconduct. But when he asked for the names of officers who'd been suspended or discharged, an official told him some of that information was confidential. Under the state's public records law, the department only had to release the names of those who'd been dismissed.

The secrecy surprised Grube and Civil Beat editor Patti Epler. 

“We’re constantly shocked that things routinely available on the mainland aren’t here,” Epler said.

There’s a saying on the island, “the nail that sticks up gets smashed down,” Epler said. "Nobody wants to talk about anything here."

Grube started combing the vague legislative reports, building a database to classify, organize and analyze the data. Next he scoured newspaper clippings and court records to see what additional information existed in the public realm. The third step, Grube said, was to put the public records law itself under a magnifying glass. Police officers, he learned, were treated differently than other public employees.

Law enforcement officials believed releasing details about police misconduct would result in officers being “paraded in the media,” “subject to scorn and retaliation.”

For its five-part series, “In The Name Of The Law,” Civil Beat decided not to focus on the misconduct, but rather the secrecy surrounding it. The anecdotes Grube gather helped to tell a deeper story, he said.

“I had to continue to reevaluate that it wasn’t about the cop who beat up his girlfriend,” Grube said. “It was about the fact that we don’t know much about the other officer who got drunk and crashed his patrol car.”

It wasn’t until after the series ran, however, that Civil Beat decided to consider challenging the secrecy in court. The news outlet narrowed its request to 12 cases involving officers who had been suspended for 20 or more days. Some appeared to have committed crimes, Grube said.

It wouldn’t be the first time the issue played out in court. In the mid-1990s a group of journalism students fought a similar battle for the records. The Hawaii Supreme Court sided with the students, but the state’s police union dodged the ruling when it got lawmakers to carve out a records law loophole for cops.

Civil Beat met with an attorney, who said the journalists would likely win if they were prepared to spend lots of money. That’s where the Civil Beat Law Center for the Public Interest came in, Epler said. Civil Beat publisher Pierre Omidyar established the nonprofit center largely because of the organization’s fight for misconduct records. It became the center’s first case.

This month a Hawaii Circuit Court judge ruled in Civil Beat’s favor, deciding that police do not have a right to secrecy when it comes to bad behavior.

If the ruling sticks – the state police union could still file an appeal – it will set an important precedent in Hawaii, where the police have long sat above the law. That means a lot of “nuts and bolts” coverage for Civil Beat moving forward.

“I think we now need to follow up on the ruling and actually go see which records are available and see what story we can tell,” Grube said. “Nobody has been looking for two decades, if not longer.”

Epler hopes Civil Beat and the law center can use the momentum to challenge the next piece of the public access equation – cost.

Police once quoted Civil Beat $2,000 for three files. The governor’s office wanted more than $1,000 for a year’s worth of travel records, Epler said. No ordinary citizen would be able to pay those fees, she said.

“It’s one thing to get a declaration that they’re a public record,” Epler said of the misconduct files. “But they’ll charge us $10,000 to look at them.”

Right now, she said, the only way to get access is to file an expensive lawsuit. The law center is a way to “turn things around here in Hawaii,” Epler said.

“The biggest barrier to bringing about better behavior is that they just ignore you, they just say no, and the only option is to sue and no one can afford to sue,” she said.

“We figure four or five or six of these public records cases where they have to pay the fees, maybe they will quit screwing around.”

Follow the Civil Beat team on Twitter: Nick Grube (@nickgrube), Patti Epler (@PattiatCB), Civil Beat (@CivilBeat). Connect with IRE Web Editor Sarah Hutchins on Twitter @sarhutch.