An Open Letter To Maui’s State Legislators Asking Them To Stop Exempting Bad Cops From The State Public Records Law

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Dear Senators Roz Baker, J. Kalani English and Gil Keith-Agaran and Representatives Mele Carroll, Kaniela Ing, Angus McKelvey, Joe Souki, Justin Woodson and Kyle Yamashita:

Wow, Opening Day comes around fast. Seems like it was only yesterday that you adjourned for the summer. But here we are: on Jan. 15–just a few days from now–you guys go back into regular session. And while I know you’ve probably got all sorts of important issues (and lobbyists) vying for your attention, I’d like to take this time to ask for your help on one small matter that’s been gnawing at me for the past three years or so.

It’s about the special exemption written into the state’s Uniform Information Practices Law for police officers. You know the one–it protects the names and case details of cops who’ve been suspended or otherwise sanctioned by their Internal Affairs departments from being released to the public.

It needs to end. It should never have become law in the first place, and you should kill it as soon as possible.

Now I know that MauiTime–and especially its publisher, Tommy Russo–has been rather outspoken on the issue of local law enforcement lately. And why not? In the spring of 2011, Russo says he was assaulted by Maui Police Officer Nelson Johnson (who was, in fact, recently arrested for allegedly assaulting his own teenage daughter) and is right now suing the County of Maui over that incident. And in November 2012, two Maui Police Officers arrested Russo while he was attempting to photograph them during a massive traffic stop known as Operation RECON (that case is pending).

As for me, I’ve reported on and written about law enforcement since I was a cub reporter in 1996. I personally discovered this little exemption quirk in Hawaii’s public records law back in 2011, when I started asking why The Maui News was periodically printing incredibly vague stories about unnamed Maui Police Officers who’d been punished internally. Imagine my surprise when I discovered that there was a special exemption for cops written into the state’s public records law. Sure, members of the public could find out the identities of cops who’d run so afoul of the law that they’d gotten themselves arrested and indicted, but as far as getting internally punished, that was all considered private.

“You can get details about university professors and even janitors who’ve been disciplined,” UH Journalism Professor Gerald Kato, who played a key role in the fight over public records that led to the exemption, told me back in 2011, “but not police officers.”

Kato proceeded to tell me a wonderfully insane Scooby Doo-like story about how his students back in 1993 had wanted to see what active Honolulu Police Officers had ever gotten into trouble with Internal Affairs. You know, gotten busted for things like falsifying reports, lying to investigators, failing to follow orders–stuff like that. Stuff that makes the taxpayers who fund police department salaries look around and wonder how guys like that got into a uniform in the first place.

I’m sure you already know the story, but here’s a condensed version. The HPD initially told the students to get lost. And they were kinda arrogant about it too, asking for $20,000 in “research fees.” So the kids asked the state Office of Information Practices for their take. That agency looked over the state’s public records law and concluded–to no one’s surprise–that police officers were public officials and, as such, subject to the Uniform Information Practices Act. And that looked like it, too–HPD was all set to hand over the info to those meddling UH kids when SHOPO–the State of Hawaii Organization of Police Officers–intervened.

In a brilliant move, the powerful police union sued the City of Honolulu to stop the disclosure. That meant Kato’s meddling students had to go to court, and they did. By 1996, they’d made it all the way to the state Supreme Court, where–once again, to no one’s surprise–they won.

Except the state Legislature had already pulled the rug out from under them a year before. Under quick and heavy lobbying from SHOPO–who apparently pulled out all the stops–the Legislature carved out a special police officer exemption in the state’s public records law. And though he likes to paint himself as an enemy of unions and the establishment now, then-Governor Ben Cayetano took the very brave stance of sitting quietly and letting the exemption pass without his signature.

Not that it really matters, but these days Cayetano thinks the exemption was a mistake.

“The reason I changed my mind is that during the last 10 years in particular there have been some actions by the [Honolulu] police commission that seem very political,” Cayetano said in a March 1, 2013 Honolulu Civil Beat story. “Ideally the commission, if it did its job, would be sufficient to me. As it turns out these commissions are only as good as the people who are appointed.”

Yeah. Anyone who says our state’s police commissions are an adequate deterrence against police abuse haven’t spent much time studying police commissions. The Maui Police Commission typically convenes in the “Chief’s Conference Room,” which is located at Maui PD’s Wailuku headquarters. Unlike other panels like the county Liquor Commission or Planning Commission, members of the public who wish to attend have to show the cops their IDs, which can be slightly intimidating.

What’s more, the Maui Police Commissioners only handle complaints sent by citizens–they never look at what IA is doing–and then, they only address them in secret “executive sessions” in which the public is excluded. And when I say “handle,” I really mean “trash.” For someone looking at the minutes of a Maui Police Commission meeting, this is usually what they read (my example comes from the Aug. 21, 2013 Maui Police Commission meeting):

“A motion was made by Commissioner [Howard] Hanzawa to support denial of the investigation by the Police Commission based on Police Commission Rule 13-101-23(a). The motion was seconded by Commissioner [Kelly] Ruidas and carried unanimously.”

It’s just bureaucratic legalese. No details, no names, not even an allegation. Regardless of the circumstances, the result is the same: no accountability.

Look, it’s not just me who’s been getting agitated over this. Civil Beat–which has more money and reporters than MauiTime–was all over this issue last year, reporting a multi-part series titled “In The Name Of The Law” on the exemption and how it basically just protects bad cops at the expense of the general public. In fact, that news organization is basically rerunning the old SHOPO case from 1993. In November 2013, that news organization filed a lawsuit “asking a judge to force the Honolulu Police Department to release the names and disciplinary files of a dozen officers who had been suspended for egregious misconduct between 2003 and 2012,” Civil Beat reporter Nick Grube–who did much of the legwork on their “In The Name Of The Law Series”–said in a story published on the last day of 2013.

In fact, Civil Beat’s reporting even led to state Senator Les Ihara, D–Kaimuki, introducing SB 839 last year. I’m sure you three senators remember that well, because you and all your colleagues voted for it, only to see it quickly get deferred to the upcoming 2014 Legislative Session once it reached the House of Representatives.

That bill was a step in the right direction, but it was woefully inadequate. That bill, while requiring that the regular reports of sanctioned officers include far more detail than the current “summaries” that are made public these days, insists that “The summary of facts shall not be of such a nature so as to disclose the identity of the individuals involved.” Meaning, even if this bill passes, the public still won’t be able to find out whether the officer who pulled them over for allegedly speeding or responded to their burglary call had ever gotten into trouble for violating department regulations. For cops with transgressions on their records, this is a good thing–it still protects them from ever having to face their old friends, relatives and aunties should news of their transgressions become public.

And that’s the whole point of this open letter. We as citizens pay taxes, which goes to pay police officer salaries, and yet we cannot hold bad cops accountable. We can look at the disciplinary record of other state personnel–like Kato told me–but not police officers, who would seem to be the most important government employees that most people meet. While no one’s saying these cops who were busted by Internal Affairs are local versions of Christopher Dorner (or even Augie T in Get a Job!), members of the public are perfectly right to wonder if they should still be wearing the uniform. And given the secrecy with which we treat cops who’ve run into trouble with their superiors, where’s the incentive for the department to treat infractions seriously if there’s no one watching them?

Look, I know this isn’t an easy thing to ask. SHOPO is powerful–not Alexander & Baldwin, pick up the phone and get it done now powerful, but powerful nonetheless. Though I was heartened to find after looking through Hawaii Campaign Spending Commission data that SHOPO has given to the campaigns of just one of you–Senator Keith-Agaran ($1,250). Of course, that data only runs through the end of June 2013, so for all I know that’s changed.

So in conclusion, privacy exemption for bad cops=bad, making sure the public knows who bad cops are=good. Thanks for reading!

Sincerely,

Anthony Pignataro
Editor, MauiTime

cc Governor Neil Abercrombie, UH Professor Gerald Kato, Augie T

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