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### IN THE SUPREME COURT OF THE STATE OF HAWAI # I ---o0o---

PEER NEWS LLC dba CIVIL BEAT, Plaintiff-Appellee,

vs. CITY & COUNTY OF HONOLULU and HONOLULU POLICE DEPARTMENT, Defendants-Appellees,

and
STATE OF HAWAI # I ORGANIZATION OF POLICE OFFICERS,

Intervenor-Defendant-Appellant.

SCAP-14-0000889
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-14-0000889; CIV. NO. 13-1-2981-11)

JUNE 9, 2016 RECKTENWALD, C.J., NAKAYAMA, AND WILSON, JJ., CIRCUIT JUDGE CRABTREE, IN PLACE OF McKENNA, J., RECUSED,

WITH POLLACK, J., CONCURRING SEPARATELY OPINION OF THE COURT BY RECKTENWALD, C.J. This case arises out of Civil Beat’s request for the disciplinary records of twelve Honolulu Police Department (HPD) Electronically Filed Supreme Court SCAP-14-0000889 09-JUN-2016 08:35 AM*** FOR PUBLICATION IN WE ST’S HAWAI # I REPORTS AND PACIFI C REPORTER ***



### officers who were suspended for at least twenty days for various types of misconduct. HPD denied the request, and Civil Beat filed suit. The State of Hawai # i Organization of Police Officers (SHOPO) intervened as a defendant. The circuit court found in 1 

### favor of Civil Beat, ordering HPD to disclose the records, and SHOPO appealed.

The circuit court based its conclusion on this court’s 1996 decision, State of Hawai # i Organization of Police Officers v. Soc’y of Professional Journalists - University of Hawai # i Chapter, 83 Hawai # i 378, 927 P.2d 386 (1996) (hereinafter SHOPO v. SPJ), and on Office of Information Practices (OIP) Opinion Letter No. 97-01 (Feb. 21, 1997). In SHOPO v. SPJ, this court held that under a prior version of Hawaii’s Uniform Information Practices Act (UIPA), police officers had no privacy interest in their disciplinary suspension records, and thus HPD must disclose the records upon request. The OIP, in Opinion Letter No. 97-01, ruled that even though the legislature amended the UIPA in Act 242 to recognize a “significant privacy interest” in police officers’ disciplinary suspension records, SHOPO v. SPJ still mandated disclosure of such records. Thus, the circuit court concluded that police officers have a “non-existent” privacy interest in their disciplinary suspension records.

The H onora ble K arl K . Sak amoto pres ided. 1 

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### We hold that SHOPO v. SPJ is not controlling. The legislature’s amendments to the UIPA in Act 242, the plain language of the UIPA, and its legislative history demonstrate that police officers have a significant privacy interest in their disciplinary suspension records. Disclosure of the records is appropriate only when the public interest in access to the records outweighs this privacy interest.

The records requested by Civil Beat here involve cases of serious misconduct that reasonably could call into question the police officers’ trustworthiness or fitness to perform their public duties. However, we cannot determine whether disclosure is appropriate given the limited factual record in this case. We therefore vacate the circuit court’s judgment and remand to that court so it can review the records to determine whether the public interest outweighs the officers’ significant privacy interests. I. Background
A. Civil Beat’s request for information

On October 4, 2013, Civil Beat sent a letter to the HPD Custodian of Records requesting records of disciplinary actions of twelve different police officers who were suspended for misconduct between 2003 and 2012. All of these disciplinary actions resulted in employee suspensions of at least twenty days.

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### The suspensions involved the following types of misconduct: 1. Violation of HPD’s electric gun policy and utilized malicious force (twenty day suspension); 2. Was untruthful during an investigation. Failed to maintain the confidentiality of the investigation (twenty day suspension); 3. Falsified a police report and was untruthful during the investigation (seventy-seven day suspension);
4. Hindered a federal investigation (six hundred twentysix day suspension);
5. Pled guilty to criminal charges (twenty day suspension); 6. Fled the scene of a motor vehicle collision, failed to report the collision, and provided false information on the police report (twenty day suspension);
7. Falsified information in a motor vehicle collision. Failed to remain impartial during a motor vehicle collision investigation. Was untruthful during an administrative investigation (twenty day suspension); 8. Submitted a falsified report and fabricated the facts regarding the probable cause to conduct a traffic stop (twenty day suspension); 9. Willfully used physical force against another employee causing injury (twenty day suspension); 10. Involved in a motor vehicle collision while under the influence of alcohol. Fled the scene and falsely reported the vehicle stolen. Failed to update personal information (twenty day suspension); 11. Falsified police reports and expense vouchers. Misappropriated expense funds. Failed to submit evidence. Participated in illegal gambling. Was untruthful (thirty day suspension); 12. Assaulted another person and harassed the officer who was investigating the incident (twenty day
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### suspension). 2

The i nform ationrega rdingthe incid ents of mi scond uct C ivil Beat 2 liste d in the l etterwas takenfrom“HPD ’s an nual discl osure of m iscon duct to the S tate legis latur e in accor dance withHRS § 52D -3.5. ” Th is in forma tion is avail able to th e pub lic b ut in clude s no more detai l tha n the brie f summary of the m iscon duct liste d her e.

HRS § 52D- 3.5 ( 2014) prov ides, in r eleva nt pa rt: (a) T he ch ief o f eac h cou nty p olice depa rtmen t sha ll submi t to the l egisl ature no l ater than Janua ry 31 of each year an an nual repor t of misco nduct inci dents that resul ted i n sus pensi on ordisc harge of apoli ce offic er.

. . . . (b) T he re port shall : (1) S ummar ize t he fa cts a nd th e nat ure o f the misco nduct for each incid ent; (2) S pecif y the disc iplin ary a ctionimpo sed f or each incid ent; (3) I denti fy an y oth er in ciden t in the a nnual repor t committe d by the s ame p olice offi cer; and (4) S tate wheth er th e hig hest nonju dicia l griev ance adjus tment proc edure time ly in vokedby the p olice offi cer o r the poli ce of ficer 's repre senta tive has c onclu ded: (A) I f the high est n onjud icial grie vance adjus tment proc edure has concl uded, the repor t sha ll st ate: (i) W hethe r the inci dent conce rns condu ct pu nisha ble a s a c rime, and if so , des cribe the count y pol ice depar tment ’s fi nding s of fact and concl usion s of law c oncer ning the crimi nal c onduc t; an d (ii) Wheth er th e cou nty p olice depar tment noti fied the r espec tive count y pro secut ing a ttorn ey ofthe incid ent; or (B) I f the high est n onjud icial grie vance adjus tment proc edure has not c onclu ded, the r eport shal l sta te th e cur rent stage of th e non judic ial g rieva nce a djust ment proce dure as ofthe end o f the repo rting perio d.

. . . . (e) F or an y mis condu ct in ciden t rep ortedpurs uant to 

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### Civil Beat requested the following information for each instance of misconduct resulting in a suspension:

For e ach i ncide nt, i f the high est n on-ju dicia l griev ance adjus tment proc edure time ly in vokedby t he emplo yee o r the empl oyee’ s rep resen tati v e has concl uded and t hirtydays has elaps ed fo llowi ng a writt en de cisio n sus taini ng th e sus pensi on af ter t hat proce dure, [Civ il Be at] s pecif icall y req uests a docum ent o r doc ument s suf ficie nt to prov ide t he follo wing infor matio n: • The empl oyee’ s nam e; • The natu re ofthe emplo yment -rela ted m iscon duct; • HPD ’s su mmaryof t he al legat ions of mi scond uct; • Fin dings of f act a nd co nclus ions of la w; an d • The disc iplin ary a ctiontake n by the a genc y . For a ll otherinci dents , [Ci vil B eat] speci fical ly reque sts adocu ment or do cumen ts su ffici ent t o sho w the d ate(s ) tha t the empl oy e e or the e mploy ee’s repre senta tive invok ed ea ch st ep inthe non-j udici al griev ance adjus tment proc edure . Inaddi tion, if the n on-ju dicia l adj ustme nt pr ocedu re te rmina ted f or a reaso n oth er than a dec isionsust ainin g the suspe nsion , [Ci vil B eat] speci fical ly re quest s a docum ent o r doc ument s suf ficie nt to summ arize the reaso n tha t the proc edure conc ludedand to sh ow th e date that the p roced ure c onclu ded. For docum ents respo nsive to t his p aragr aph, [Civi l Bea t] agree s tha t HPD m ay re dact the e mploy ee’s name and o ther infor matio n tha t wou ld di sclos e the empl oyee’ s ident ity.



### (...continued) 2 this secti on an d sub ject to su bsect ion ( b)(4) (B), the chiefof e ach c ountypoli ce de partm ent s hall provi de updat ed in forma tion in ea ch su ccess ive a nnual repo rt, until the highe st no njudi cial griev ance adjus tment proce dure timel y inv oked by th e pol ice o ffice r has concl uded. In each succe ssive annu al re port, the updat ed in forma tion shall refe rence wher e the inci dent appea red i n the prio r ann ual r eport . Forany incid ent resol ved w ithou t dis cipli nary actio n aft er th e concl usionof t he no njudi cial griev ance adjus tment proce dure, the chiefof e ach c ountypoli ce de partm ent shall summ arize the basis for not i mposi ng disci plina ry ac tion.



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### Thus, for cases where the highest grievance procedure timely invoked by the employee has concluded, and thirty days has passed following a written decision sustaining the employees’ suspensions, Civil Beat requested information that included the employees’ names. For all other cases, Civil Beat did not request the employees’ names.

HPD denied Civil Beat’s request in its entirety. To justify its denial, HPD cited to HRS § 92F-13(1) and HRS § 92F- 3 

### 14, and stated that Civil Beat’s request was an “[u]nwarranted 4

HRS § 92F- 13 pr ovide s: “ This part shall not requi re di sclos ure 3 of: (1) G overn ment recor ds wh ich, if di sclos ed, w ould const itute a cl early unwar rante d inv asionof p erson al pr ivacy [.]”

The v ersio n of HRS § 92F- 14 as amen ded b y Act 242, whic h was in 4 effec t at the t ime C ivil Beat made its r eques t pro vided , in perti nent part:

(a) D isclo sure of a gover nment reco rd sh all n ot const itute a cl earlyunwa rrant ed in vasio n of perso nal priva cy ifthe publi c int erest in d isclo sure outwe ighs the p rivac y int erest of t he in divid ual. (b) T he fo llowi ng ar e exa mples of i nform ationin w hich the i ndivi dual has asign ifica nt pr ivacyinte rest:

. . . . (4) I nform ationin a n age ncy’s pers onnel file , or appli catio ns, n omina tions , rec ommen datio ns, o r propo sals for p ublic empl oymen t or appoi ntmen t to a gover nment al po sitio n, ex cept:

. . . (B) T he fo llowi ng in forma tion relat ed to emplo yment misc onduc t tha t res ults in an emplo yee’s susp ensio n or disch arge: (i) T he na me ofthe emplo yee; (ii) The n ature of t he employm ent r elate d 

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### invasion of privacy,” and that the “[i]ncidents did not result in discharge.”
B. Prior proceedings

On November 7, 2013, Civil Beat filed a complaint in the circuit court seeking an order directing HPD to disclose all of the information Civil Beat sought in its October 4, 2013 letter. Civil Beat filed a motion for summary judgment (MSJ), arguing that after this court’s decision in SHOPO v. SPJ, police officers have no constitutional privacy interest in their disciplinary records where the officers were suspended but not discharged. Civil Beat further argued that UIPA permits

(...continued) misco nduct ; (iii) The agenc y’s s ummar y of the alleg ation s of misco nduct ; (iv) Findi ngs o f fac t andconc lusio ns of law; and (v) T he di scipl inaryacti on ta ken b y the agenc y; when the f ollow ing h as oc curre d: th e hig hest nonju dicia l gri evanc e adj ustme nt pr ocedu re timel y inv oked by th e emp loyee or t he employe e’s repre senta tive has c onclu ded; a wri tten decis ion susta iningthe suspe nsionor d ischa rge h as be en issue d aft er th is pr ocedu re; a nd th irty calen dar days have elaps ed fo llowi ng th e iss uance of t he decis ion; provi ded t hat t his s ubpar agrap h sha ll not a pply to a count y pol ice d epart ment offic er excep t in a cas e whi ch re sults in t he di schar ge of th e off icer[ .] HRS § 92F- 14 (S upp. 1996)
.

HRS § 92F- 14 wa s ame nded in 20 04 an d 201 4, bu t the se su bsequ ent amendments are not r eleva nt to this appe al. See 2 004 H aw Se ss. L aws A ct 92 , § 4 at 368; 2014 Haw. Sess. Laws Act 121, § 2 a t 334 -35. 

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### withholding government records on the grounds of personal privacy only if the individual has a constitutionally protected right of privacy. Thus, according to Civil Beat, HPD police officers have no privacy interest in their records of disciplinary suspensions.

Civil Beat also relied on a formal opinion of the OIP, Opinion Letter No. 97-01. In OIP Opinion Letter No. 97-01, the OIP first concluded that when the legislature amended the UIPA by enacting Act 242 in 1995, it intended “to balance the competing privacy and public interests in favor of keeping confidential information about suspended officers.” Id. at 6. The OIP went on, however, to conclude that this court’s decision in SHOPO v. SPJ “erodes the significant weight assigned by the Legislature to the suspended officer’s privacy interest, as set out in Act 242” such that “only a ‘scintilla’ of public interest is enough to overcome this privacy interest in the balancing test.” Id. at 8. The OIP also noted that arguably, the legislature was free to create a significant privacy interest in police officers’ records of disciplinary suspensions, even if no constitutional privacy right existed, but that even if this were true, the interests still need to be weighed, and this court’s ruling in SHOPO v. SPJ “tips the balance heavily toward finding that the public has a strong countervailing interest about suspended police officers.” Id. at 8-9. The OIP therefore concluded :


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Wheth er on e fin ds th at SH OPO e limin ates the Legis latur e’s f indin g of a sig nific ant p rivac y inter est o r whe ther the L egisl ature has the p ower to creat e the righ t, th e res ult i s the same -–dis closu re of in forma tion about susp endedpoli ce of ficer s can not be fo und t o con stitu te a clear ly un warra nted invas ion of pe rsona l pri vacy underthe UIPA. 

### Id. at 9. In its MSJ, Civil Beat argued that OIP’s analysis was correct based on a plain reading of the UIPA, and that even if the UIPA is ambiguous, OIP’s conclusion is entitled to deference.

In the alternative, Civil Beat argued that even if the UIPA does recognize a broader right of privacy than the constitution, the public interest in disclosure nevertheless outweighs the individual privacy interest. Civil Beat argued that the public has an overwhelming interest in the disclosure of disciplinary records regarding egregious misconduct by police officers because:

Insta nces of mi scond uct o f a p olice offi cer w hile on the j ob ar e not priv ate, intim ate, perso nal d etail s of the o ffice r’s l ife .
. . . Th ey ar e mat ters with whichthe publi c has a ri ght t o con cern itsel f. .
. . If th e offdutyacts of apoli ce offic er be ar up on hi s or her f itnes s to perfo rm pu blic duty or ifthe activ ities repo rted in th e rec ords invol ve th e per forma nce o f a p ublic duty , the n the inter est o f the indi vidua l in “pers onal priva cy” i s to be gi ven s light weig ht inthe balan cing test and t he appro priat e con cern of th e pub lic a s to the p roper perfo rmanc e of publi c dut y is to be give n gre at weigh t. I n suc h sit uatio ns pr ivacycons idera tions are overw helme d by publi c acc ounta bilit y. 

### (Quoting Cowles Publ’g v. State Patrol, 748 P.2d 597, 605 (Wash.

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### 1988)). 5 

### Thus, according to Civil Beat, even if police officers have a “significant privacy interest” in their disciplinary suspension records, this interest must nonetheless be weighed against the public interest in disclosure, and in this case, this public interest outweighs the officers’ privacy interest.

On January 9, 2014, the circuit court granted SHOPO’s motion to intervene as a defendant. HPD and SHOPO each filed a memorandum in opposition to Civil Beat’s MSJ.

HPD argued that the plain language of HRS § 92F-14(b), as amended by Act 242, indicated that an HPD officer has a significant privacy interest in records related to employment misconduct where the officer was suspended, but not discharged. HPD asserted that the “legislative history of Act 242 shows that the legislature intended to conduct the balancing itself and conclude “as a matter of public policy that the privacy of the individual outweighs the public interest in disclosure with respect to the information sought by [Civil Beat] in this case.”

In SHOPO’s memorandum in opposition to Civil Beat’s MSJ, SHOPO made similar arguments to HPD’s. SHOPO argued that because HRS § 92F-14 recognizes a “significant privacy interest”

This same langu age w as al so qu oted appro vingl y by this court in 5 SHOPO . 83 Hawa i # i at 399, 927 P .2d a t 407
. 

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### in information related to police officer misconduct not resulting in discharge, it “plainly and unambiguously exempts from disclosure the disciplinary records of county police officers who have not been discharged.”

The circuit court granted Civil Beat’s MSJ, finding as
follows:
Artic le I, Sect ion 6 of t he Ha wai # i Con stitu tion

does not r ecogn ize aprot ectedpriv acy i ntere st in polic e mis condu ct re sulti ng insusp ensio n or disch arge. The cour t int erpre ted A rticl e I, Secti on 6 in li ght o f the Supr eme C ourt of Ha waii’ s dec ision[in SHOPO ]. T he Su preme Cour t of Hawai # i det ermin ed th at polic e off icers do n ot ha ve a prote cted priva cy inter est i n rec ords of po lice misco nduct that leadto suspe nsionor d ischa rge.

. . . . The s uprem e cou rt al so st ated that “info rmati on regar ding charg es ofmisc onduc t by polic e off icers , in theircapa citie s as such, that have beensust ained afterinve stiga tion and t hat h ave r esult ed in suspe nsionor d ischa rge i s not ‘hig hly p erson al an d intim ate i nform ation ’ and , the refor e, is not withi n the p rotec tion of Ha wai # i’s c onsti tutio nal r ight of priva cy.” The court also went on t o sta te: “The infor matio n tha t mus t be discl osed pursu ant [ to] H RS § 92F -14(b )(4)( B) re gardi ng a publi c emp loyee ’s emplo yment -rela ted m iscon duct and r esult ing disci pline , is not ‘ highl y per sonal and intim ate infor matio n’ an d is, ther efore , not with in th e sco pe of Ha wai # i’s c onsti tutio nal r ight of pr ivacy .” The U IPA c annot reco gnize a pr otect ed pr ivacy inter est i n pol ice o ffice r mis condu ct be cause to d o so wouldbe t o dir ectlycont raven e the prov isionit imple ments , whi ch is Arti cle I , Sec tion 6. U nder Artic le I, Sect ion 6 , pol ice o ffice rs ha ve no prote cted priva cy in teres t reg ardin g on- duty misco nduct that resu lts i n sus pensi on ordisc harge , and t he UI PA impleme nts A rticl e I, Secti on 6, as g iven in th e SHO PO de cisio n, wh ich s tates “[t] he UI PA, a nd the c halle nged amendment by Ac t 191 , imp lemen ts artic le I, sect ion 6 of t he Ha wai # i Const ituti on . . . . ” Th us, r eadin g tha t lan guage , the c ourt concl udes underSHOP O as [sic] ther e is no


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prote cted priva cy in teres ts re gardi ng on -duty misco nduct by p olice offi cers, ther efore , pub lic acces s int erest woul d out weighnon- exist ent p rivac y inter ests in on -dutypoli ce mi scond uct. The c ourt belie ves t hat t his i s sup porte d in part on th ree g round s: 1. Looki ng at the purpo se ofthe UIPA, whic h is geare d tow ards discl osure ; 2. That the H awai # i Sup reme Court cert ainly recog nizedthat Act 242 w ould requi re on ly limit ed di sclos ure t o tho se po lice offic ers t hat were disch arged ; 3. That the c ourt finds that the State of H awai # i [OIP] deci sion, Opin ion L etterNo. 97-1, was not erron eous.

. . . . [L]oo king at th e SHO PO de cisio n, it agai n appea rs to reco gnize that , the re, A ct 24 2 was abou t to limit disc losur e of recor ds ju st to disc harge d offic ers. The SHOPOcour t didbegi n its anal ysis cente red s pecif icall y at Act 1 91, b ut th en th e sup reme court went furt her i n the anal ysis to co nside r, moreo ver, the h istor y of Artic le I, Sect ion 6 of t he Hawai # i Con stitu tion and w ent i n-dep th ina const ituti onal analy sis o f pol ice m iscon duct. Accor dingl y, th e Sup reme Court of H awai # i rec ogniz ed the i mpact of A ct 24 2 andchos e to addit ional ly an d separ atelyaddr ess i ts sh ortco mings unde r Art icle I, Secti on 6.

. . . . Basedon t he re cord and t he an alysi s set fort h above , Pla intif f’s [ MSJ] is GRANTED . De fenda nts a re hereb y ORD ERED to op en pu blic inspe ctionand copyi ng by Pl ainti ff th e req ueste d rec ords of tw elve polic e offic ers i denti fied in th e Oct ober 4, 20 13 le tter. 

### (Internal citation omitted).

SHOPO filed a notice of appeal, and on February 10,

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### 2015, this court granted Civil Beat’s application for transfer. 6



### In its opening brief, SHOPO presents three points of

error:
1. Wheth er th e Cir cuit Court erre d whe n it grant ed Plain tiff- Appel lee C ivil Beat’ s [MS J] byruli ng that Defen dant- Appel lee C ity w as re quire d to discl ose t he di scipl inaryinfo rmati on ofthe 12 polic e off icers who were not d ischa rged. 2. Wheth er th e Cir cuit Court erre d whe n it found that polic e off icers that had not b een disch argedfromthei r emp loyme nt ha d no priva cy inter ests in th eir d iscip linar y rec ords in relia nce o f SHO PO v. SPJ, 83 H aw. 3 78, 9 27 P. 2d 386 ( 1996)
. 3. Wheth er th e Cir cuit Court erre d whe n it found that OIP O p. 97 -1 wa s not palp ably erron eous.



### II. Standards of Review
A. Summary judgment

“On appeal, the grant or denial of summary judgment is reviewed de novo.” Lales v. Wholesale Motors Co., 133 Hawai # i 332, 343, 328 P.3d 341, 352 (2014) (citing First Ins. Co. of Haw. v. A & B Props., Inc., 126 Hawai # i 406, 413, 271 P.3d 1165, 1172 (2012)). Furthermore,

summa ry ju dgmen t is appro priat e if the p leadi ngs, depos ition s, an swers to i nterr ogato ries and a dmiss ions on fi le, t ogeth er wi th th e aff idavi ts, i f any , sho w that there is n o gen uine issue as t o anymate rial fact and t hat t he mo ving partyis e ntitl ed to judgment as a matte r of law. A fa ct is mate rial if pr oof o f tha t fact wouldhave the effec t of estab lishi ng orrefu ting one o f the esse ntial elem ents of a cause of a ctionor defen se as serte d by the p artie s. T he ev idenc e mus t be

The C ity a nd Co unty of Ho nolul u andHPD fileda no tice stati ng 6 that neith er pa rty w as ta king a pos itionin t he ap peal. 

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viewe d in the l ight most favor able to th e non -movi ng party . Inothe r wor ds, w e mus t vie w all of t he evide nce a nd in feren ces d rawn there from in th e lig ht most favor able to th e par ty op posin g the moti on. 

### Id. (citing First Ins. Co. of Haw., 126 Hawai # i at 413-14, 271 P.3d at 1172-73).
B. Statutory interpretation

The i nterp retat ion o f a s tatut e is a que stionof law r eview able de no vo. When const ruinga st atute , this court ’s fo remos t obl igati on is to b e obt ained prima rily from the l angua ge co ntain ed inthe statu te itsel f. W here the s tatut ory l angua ge is plai n and unamb iguou s, th is co urt’s sole dutyis t o giv e eff ect to it s pla in an d obv ious meani ng. Impli cit i n the taskof s tatut ory c onstr uctio n is ou r for emost obli gatio n to ascer tain and g ive effec t to the i ntent ion o f the legi slatu re, w hich is to be obta ined prima rily from the l angua ge co ntain ed in th e sta tute itsel f; ho wever , whe n the re is doub t, doubl eness of m eanin g, orindi stinc tiven ess o r uncer taint y of an ex press ion u sed i n a s tatut e, an ambig uity exist s. 

### McLaren v. Paradise Inn Hawai # i LLC, 132 Hawai # i 320, 327-28, 321 P.3d 671, 678-79 (2014) (citations omitted).

Further, this court has stated that an appellate court
gener ally revie ws qu estio ns ofstat utory inter preta tion de no vo, b ut, i n the case of .
. . ambig uous statu tory langu age, the a pplic able stand ard of re view regar ding an ag ency’ s int erpre tatio n of its own g overn ing s tatut e req uires this cour t to deferto the a gency ’s ex perti se an d to follo w the agen cy’s const ructi on ofthe statu te un less that const ructi on is pa lpabl y err oneou s[.] 

### Gillan v. Gov’t Emps. Ins. Co., 119 Hawai # i 109, 114, 194 P.3d 1071, 1076 (2008) (citing Vail v. Employees’ Ret. Sys., 75 Haw. 42, 66, 856 P.2d 1227, 1240 (1993)) (citation, quotation marks, and brackets omitted).

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### III. Discussion As explained below, the circuit court incorrectly concluded that police officers have a “non-existent” privacy interest in their disciplinary suspension records. SHOPO is correct that SHOPO v. SPJ is not dispositive because in Act 242, the legislature recognized a privacy interest in police officers’ disciplinary records that was not applicable in SHOPO v. SPJ. Thus, Civil Beat cannot rely on the balancing conducted by this court in SHOPO v. SPJ. However, the language and legislative history of Act 242 indicate that even after a significant privacy interest is found, that interest must be weighed against the public interest in disclosure. Therefore, this case must be remanded to the circuit court to balance the public and privacy interests at stake to determine whether disclosure is appropriate.
A. Act 242 created a “significant” personal privacy interest in records of disciplinary suspension, which is broader than the right of privacy recognized in SHOPO v. SPJ SHOPO first argues that the circuit court erred in finding that police officers had a “‘non-existent privacy interest’ in their disciplinary records,” because this finding is contrary to the language of Act 242. Specifically, SHOPO asserts that HRS § 92F-14(b)(4)(B)(v) explicitly provides that police

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### officers have a “‘significant privacy interest’ in their disciplinary records that do not involve a discharge from their employment.”

SHOPO further argues that SHOPO v. SPJ is not controlling in this case because this court’s analysis in SHOPO v. SPJ was limited to an analysis of a prior version of the UIPA, before Act 242 became effective. SHOPO also maintains that the SHOPO v. SPJ court recognized that, under article I, section 6 of the Hawai # i Constitution, the legislature has the authority to define the scope of the protected right of privacy, and that when the legislature enacted Act 242, it broadened the protections of the right of privacy to encompass police officers’ disciplinary suspension records.

Civil Beat does not dispute that UIPA recognizes a significant privacy interest in disciplinary information in police officers’ personnel files unless the officer is discharged, but argues that this “does not mean police officers have a right to insist that HPD withhold all such files.” According to Civil Beat, even these “significant privacy interests” must be balanced against the public interest in disclosure.

Civil Beat further argues that this court and the OIP have already weighed those interests and determined that the
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### public interest in disclosure outweighs the police officers’ privacy concerns. Essentially, Civil Beat argues that because the UIPA implements the constitutional right of privacy, the privacy interest in disciplinary suspension records recognized by UIPA is equivalent to the constitutional right of privacy under article I, section 6. Thus, according to Civil Beat, even though this court in SHOPO v. SPJ was applying a prior version of the UIPA, when the court balanced the constitutional privacy interest in disciplinary suspension records against the public interest in disclosure, this balancing also applies to the current version of
the UIPA. On this point, SHOPO is correct. Although UIPA does, as Civil Beat contends, implement article I, section 6, the plain language of Act 242 clearly indicates that the legislature recognized a “significant privacy interest” in police officers’ disciplinary suspension records in HRS § 92F-14(b). Because this court in SHOPO v. SPJ stated that there was no privacy interest in disciplinary suspension records protected by article I, section 6, the “significant privacy interest” recognized in Act 242 is clearly broader than the non-existent right of privacy recognized by this court in SHOPO v. SPJ.

This court’s analysis in SHOPO v. SPJ was based on a prior version of the UIPA, before the legislature recognized a
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### significant privacy interest in police officers’ disciplinary suspension records. Furthermore, Civil Beat has not provided any authority to show that the legislature is without power to broaden the definition of the right of privacy to recognize a significant privacy interest in police officers’ disciplinary suspension records, as it did in Act 242. The circuit court thus erred in finding that police officers have a “non-existent privacy interest” in their disciplinary suspension records
. 1. Article I, section 6, UIPA, and Act 242 Article I, section 6 of the Hawai # i Constitution 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.” Thus, article I, section 6 recognizes a general right of privacy and tasks the Hawai # i Legislature with implementing that right.

The Hawai # i Legislature has implemented this right to privacy in the UIPA. See HRS § 92F-2 (“The 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 and section 7 of article I of the constitution of the state of Hawai # i.”). Codified in HRS chapter 92F, UIPA was enacted in 1988 for the following purposes:
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(1) P romot [ing] the publi c int erest in d isclo sure; (2) P rovid [ing] for accur ate, relev ant, timel y, an d compl ete g overn ment recor ds; (3) E nhanc [ing] gove rnmen tal a ccoun tabil ity t hroug h a gener al po licy of ac cess to go vernm ent r ecord s; (4) M ak[in g] go vernm ent a ccoun table to i ndivi duals in the c ollec tion, use, and disse minat ion o f inf ormat ion relat ing t o the m; an d (5) B alanc [ing] the indiv idual priv acy i ntere st an d the p ublic acce ss in teres t, al lowin g acc ess u nless it wouldcons titut e a c learl y unw arran ted i nvasi on of perso nal p rivac y. 

### HRS § 92F-2 (2012).

The UIPA establishes the general rule of disclosure that “[e]xcept as provided in section 92F-13, each agency upon request by any person shall make government records available for inspection and copying during regular business hours.” HRS § 92F-11(b) (Supp. 2014); see also SHOPO, 83 Hawai # i at 383, 927 P.2d at 391. The UIPA also provides for certain types of government records that must be disclosed (HRS § 92F-12), and certain types of records that are exempted from the general disclosure requirement (HRS § 92F-13). The current version of HRS § 92F-13, which excludes certain records from disclosure requirements, is substantively identical to the original version enacted in 1988, and provides:

This part shall not requi re di sclos ure o f: (1) G overn ment recor ds wh ich, if di sclos ed, w ould const itute a cl earlyunwa rrant ed in vasio n of perso nal priva cy;



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(2) G overn ment recor ds pe rtain ing t o the pros ecuti on or de fense of a ny ju dicia l or quasi -judi cial actio n to whichthe State or a ny co unty is ormay be a party , to the e xtent that suchreco rds w ould not b e disco verab le; (3) G overn ment recor ds th at, b y the ir na ture, must be confi denti al inorde r forthe gover nment to a void the frust ratio n of a leg itima te go vernm ent f uncti on; (4) G overn ment recor ds wh ich, pursu ant t o sta te or feder al la w inc ludin g an orderof a ny st ate o r fed eral court , are prot ectedfromdisc losur e; an d (5) I nchoa te an d dra ft wo rkingpape rs oflegi slati ve commi ttees incl udingbudg et wo rkshe ets a nd un filed commi ttee repor ts; w ork p roduc t; re cords or trans cript s of an in vesti gatin g committe e of the legis latur e whi ch ar e clo sed b y rul es ad optedpurs uant to se ction21-4 and the p erson al fi les o f members of the l egisl ature
. 

### HRS § 92F-13 (2012) (emphasis added).

Thus, although the general rule is that government agencies must disclose records upon request, section 92F-13 exempts from disclosure any record that, if disclosed, would constitute a “clearly unwarranted invasion of personal privacy.”

HRS § 92F-14 currently states, as it did in 1988, 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(a). Section 92F-14 then goes on, in subsection (b), to list a number of examples of the types of information in which an individual has a “significant privacy interest.” Relevant to the present appeal, the legislature has made significant changes to section 92F-14(b) on two occasions
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### since 1988. As originally enacted, UIPA recognized that individual employees had a significant privacy interest in the following relevant information:

(b) The f ollow ing a re ex ample s of infor matio n in whichthe indiv idual has a sig nific ant p rivac y inter est:

. . . . (4) Infor matio n in an ag ency’ s per sonne l fil e, or appli catio ns, n omina tions , rec ommen datio ns, o r propo sals for p ublic empl oymen t or appoi ntmen t to a gover nment al po sitio n, ex cept infor matio n relat ing t o the stat us ofany forma l cha rges again st th e emp loyee and disci plina ry ac tion takenor i nform ationdisc losedunde r sec tion 92F-1 2(a)( 14). [7] 

### HRS § 92F-14 (Supp. 1991) (emphasis added).

The 1988 version of UIPA thus provided that although individuals had significant privacy interests in their personnel file generally, there was no significant privacy interest in any

In 19 88, H RS § 92F-1 2(a)( 14) p rovid ed th at ag encie s wer e req uired 7 to ma ke th e fol lowin g inf ormat ion a vaila ble f or pu blic inspe ction :

The n ame, compe nsati on (b ut on ly th e sal ary r ange for emplo yees cover ed bychap ters 76, 7 7, 29 7 or 304), job title , bus iness addr ess, busin ess t eleph one n umber , job d escri ption , edu catio n andtrai ning backg round , previ ous w ork e xperi ence, date s of first and last emplo yment , pos itionnumb er, t ype o f app ointm ent, servi ce co mputa tion date, occu patio nal g roup or cl ass code, barg ainin g uni t cod e, employe e age ncy n ame a nd code, depa rtmen t, di visio n, br anch, offi ce, s ectio n, unit, and islan d of emplo yment , of prese nt orform er offic ers o r emp loyee s of the s ame a gency , pro vided that this provi sion shall not requi re th e cre ationof a ros ter o f emp loyee s; ex cept that this provi sion shall not applyto i nform ationrega rdingpres ent o r forme r emp loyee s inv olvedin a n und ercov er ca pacit y in a lawenfo rceme nt ag ency. HRS § 92F- 12(a) (14) (Supp . 199 1). 

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### disciplinary action taken against the employee.

In 1993, the legislature enacted Act 191, which amended HRS § 92F-14(b) to read as follows:

(b) The f ollow ing a re ex ample s of infor matio n in whichthe indiv idual has a sig nific ant p rivac y inter est:

. . . . (4) Infor matio n in an ag ency’ s per sonne l fil e, or ap plica tions , nom inati ons, recommenda tions , or propo sals for p ublic emplo yment or a ppoin tment to a gover nment al po sitio n, ex cept: (A) Infor matio n dis close d und er se ction 92F-1 2(a)( 14); and (B) The f ollow ing i nform ationrela ted t o emplo yment misc onduc t tha t res ults in anempl oyee’ s sus pensi on or disch arge: (i) The n ame o f the empl oyee; (ii) The n ature of t he employm entrelat ed mi scond uct; (iii) The a gency ’s su mmaryof t he alleg ation s of misco nduct ; (iv) Findi ngs o f fac t and concl usion s of law; and (v) The d iscip linar y act ion t aken by th e age ncy; when the f ollow ing h as oc curre d: the h ighes t non -judi cial griev ance adjus tment proc edure time ly in voked by th e emp loyee or t he employe e’s repre senta tive has c onclu ded; a writt en de cisio n sus taini ng th e suspe nsionor d ischa rge h as be en issue d aft er th is pr ocedu re; a nd thirt y cal enderdays have elap sed follo wing the i ssuan ce ofthe decis ion; provi ded t hat t his subpa ragra ph sh all n ot ap ply t o a count y pol ice d epart ment offic er with respe ct to misc onduc t tha t occur s whi le th e pol ice o ffice r is not a ctingin t he ca pacit y of a polic e off icer[
. 

### ]

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### HRS § 92F-14 (1993) (emphases added).

Thus, Act 191 amended section 92F-14 such that UIPA recognized no significant privacy interest in information relating to police officer misconduct if the misconduct occurred while the police officer was acting in the capacity of a police officer, thirty days had passed since the highest timely invoked grievance procedure, and the suspension or discharge was sustained in writing.

In 1995, the legislature again amended section 92F-14, when it enacted Act 242. Act 242 amended section 92F-14 to read
as follows:

(b) The f ollow ing a re ex ample s of infor matio n in whichthe indiv idual has a sig nific ant p rivac y inter est:

. . . . (4) Infor matio n in an ag ency’ s per sonne l fil e, or appli catio ns, n omina tions , rec ommen datio ns, o r propo sals for p ublic empl oymen t or appoi ntmen t to a gover nment al po sitio n, ex cept: (A) Infor matio n dis close d und er se ction 92F-1 2(a)( 14); and (B) The f ollow ing i nform ationrela ted t o emplo yment misc onduc t tha t res ults in anempl oyee’ s sus pensi on or disch arge: (i) The n ame o f the empl oyee; (ii) The n ature of t he employm entrelat ed mi scond uct; (iii) The a gency ’s su mmaryof t he alleg ation s of misco nduct ; (iv) Findi ngs o f fac t and concl usion s of law; and (v) The d iscip linar y act ion t aken by th e age ncy; 

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when the f ollow ing h as oc curre d: the h ighes t non -judi cial griev ance adjus tment proc edure time ly in voked by th e emp loyee or t he employe e’s repre senta tive has c onclu ded; a writt en de cisio n sus taini ng th e suspe nsionor d ischa rge h as be en issue d aft er th is pr ocedu re; a nd thirt y cal enderdays have elap sed follo wing the i ssuan ce ofthe decis ion; provi ded t hat t his subpa ragra ph sh all n ot ap ply t o a count y pol ice d epart ment offic er excep t in a cas e whi ch re sults in the d ischa rge o f the offi cer. 

### HRS § 92F-14 (2012) (emphases added).

Thus, under Act 242, the UIPA recognizes a significant privacy interest in information in employees’ personnel files, creates an exception from this significant privacy interest for information relating to employee misconduct that results in suspension or discharge, and then creates another exception to this exception for police officers, unless the misconduct resulted in the discharge of the officer. In other words, HRS § 92F-14 now recognizes a significant privacy interest in all information relating to police officer misconduct unless that misconduct resulted in the officer’s discharge (in which case, there is no privacy interest). 8



### Based on the plain language of HRS § 92F-14(b), there

The r eleva nt po rtionof H RS § 92F-1 4 was amen ded a gain in 20 14, 8 when the l egisl ature clar ifiedthat “thi s sub parag raph” refe rred to subpa ragra ph (B ) andincr easedthe numbe r of days that must elaps e fol lowin g the w ritte n dec isionfromthir ty to nine ty. See 2 014 H aw. S ess. Laws Act 1 21, § 2 a t 334 -35. 

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### is thus no question that the UIPA, as modified by Act 242, recognizes a “significant privacy interest” in personnel information relating to disciplinary action for police officer misconduct where that discipline resulted in the suspension of the police officer. 2. SHOPO v. SPJ Although this court decided SHOPO v. SPJ on November 15, 1996--after the July 6, 1995 effective date of Act 242--SHOPO v. SPJ interpreted the prior version of UIPA, as amended by Act 191, because the proceedings in that case began before Act 242’s effective date. See SHOPO v. SPJ, 83 Hawai # i at 391, 927 P.2d at 399 (“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.”).

In SHOPO v. SPJ, the Society of Professional Journalists, University of Hawai # i Chapter (SPJ), requested from HPD the names and titles of all HPD employees “who, from January 1, 1998 to [August 30, 1993], were either suspended or discharged as a result of disciplinary action against them.” SHOPO v. SPJ, 83 Hawai # i at 384, 927 P.2d at 392. SPJ also requested “information that explains the nature of the employment-related misconduct, any findings of fact and
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### conclusions of law, and the type of disciplinary action taken by your department.” Id. Although HPD did not outright deny SPJ access to these records, a dispute arose regarding SPJ’s obligation to pay for the records. Id. at 384-86, 927 P.2d at 392-94. Before this dispute was resolved, SHOPO filed a lawsuit against HPD, seeking a declaratory judgment that, inter alia, “HRS Chapter 92F is unconstitutional and, therefore, void; and . . . HPD may not release the type of information sought by SPJ under Chapter 92F.” Id. at 386, 927 P.2d at 394. The circuit court granted SHOPO’s request for a temporary restraining order (TRO), enjoining HPD from disclosing the information pending the outcome of the lawsuit. Id.

SPJ also filed suit, and requested that the circuit court order HPD to produce all the relevant records in response to its request. Id. SPJ and OIP both intervened as defendants in the lawsuit filed by SHOPO. Id. at 387, 927 P.2d at 395. The circuit court granted SPJ’s MSJ and ordered HPD to disclose the relevant records. Id. at 387-88, 927 P.2d at 395-96.

On appeal, this court noted that “[a]t the heart of the City’s appeal is its contention that disclosure of police disciplinary records, pursuant to HRS § 92F-14(b)(4)(B), constitutes an unconstitutional invasion of police officers’
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### right of privacy in violation of article I, section 6 of the Hawai # i Constitution . . . .” Id. at 396, 927 P.2d at 404. In response to the City’s argument, this court held:

[I]n adopt ing A ct 19 1, th e Leg islat ure b alanc ed th e compe ting inter ests of in divid ual p rivac y andpubl ic acces s andconc luded , as a mat ter o f pub lic p olicy , that aftera pu blic emplo yee h as ex haust ed an y nonju dicia l gri evanc e pro cedur es av ailab le to him or her a nd ch arges of e mployment- relat ed mi scond uct h ave been susta ined, resu ltingin s uspen sion or di schar ge, the p ublic inte rest in di sclos ure o f tha t per son’s name and i nform ationrega rdingthe misco nduct outwe ighs the e mploy ee’s priva cy in teres t. T he Ci ty has f ailedto o verco me th e pre sumpt ion t hat t he Legis latur e has achi eved this balan ce inacco rdanc e with the m andat e of artic le I, sect ion 6 of t he Hawai # i Con stitu tion.
Moreo ver, consi derin g the hist ory o f art icle 1, secti on 6 of th e Haw ai # i Con stitu tion, our prior inter preta tion of th at se ction , andthe great weig ht of au thori ty fr om ot her j urisd ictio ns, w e hol d tha t infor matio n reg ardin g a p olice offi cer’s misc onduc t in the c ourse of h is orher dutie s as a pol ice o ffice r is not w ithinthe prote ctionof H awai # i’s c onsti tutio nal right to p rivac y. 

### Id. at 396-97, 927 P.2d at 404-05.

Thus, this court held that the UIPA, as amended by Act 191, did not violate article I, section 6 of the Hawai # i Constitution by requiring disclosure of police disciplinary suspension records. In undertaking this constitutional analysis,
this court stated that:

Underthe holdi ng inPain ting Indus try, the p rivac y right prot ectedby t he “i nform ation al pr ivacy ” pro ng of ar ticle I, s ectio n 6 i s the righ t to keep confi denti al in forma tion whichis “ highl y per sonal and intim ate.” The issu e, th erefo re, i s whe ther the ident ities and disci plina ry re cords of p olice offi cers who h ave e ngage d in such misco nduct in t he co urse of theirpubl ic du ties
. . . is “ highl y per sonal and



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intim ate i nform ation .” T he le gisla ture, havi ng deter minedas amatt er ofpubl ic po licy that publi c emplo yees who h ave b een s uspen ded o r dis charg ed fo r emplo yment -rela ted m iscon duct do no t hav e a signi fican t pri vacy inter est i n inf ormat ion a bout that misco nduct , obv iousl y ans weredin t he ne gativ e. S o too h ave t hose juris dicti ons t hat h ave c onsid ered the issue
. 

### Id. at 398, 927 P.2d at 406 (emphasis added).

This court ultimately held that:
HRS § 92F- 14(b) (4)(B ) doe s not impl icate the right of priva cy pr otect ed byarti cle I , sec tion 6 of the Hawai # i Con stitu tion. The info rmati on th at mu st be discl osed pursu ant t o HRS § 92 F-14( b)(4) (B) r egard ing a pub lic e mploy ee’s emplo yment -rela ted m iscon duct and resul ting disci pline , is not “ highl y per sonal and intim ate i nform ation ” andis, there fore, not withi n the s cope of Ha wai # i’s c onsti tutio nal r ight to priva cy. 

### Id. at 400, 927 P.2d at 408.

This court in SHOPO v. SPJ therefore limited its analysis to whether application of the UIPA, as amended by Act 191, violated the right to privacy in article I, section 6 of the Hawai # i Constitution. This court did not, however, determine whether disclosure of the police officers’ disciplinary suspension records violated UIPA as amended by Act 242 because, even though Act 242 had already become effective, Act 242 was not applicable to the request for records in that case.

Thus, contrary to the circuit court’s finding in the present case, this court in SHOPO v. SPJ did not choose to “additionally and separately address [Act 242’s] shortcomings”; instead, the SHOPO v. SPJ court’s analysis of Act 242 was limited
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### to a determination that Act 242 was not applicable to the facts of the case, and that as a result, Act 242 did not render the
case moot. In this case, unlike in SHOPO v. SPJ, SHOPO does not ask us to determine whether disclosure of the police officers’ disciplinary suspension records would violate article I, section 6, but asks us to determine whether such disclosure would violate the police officers’ privacy interests under the UIPA, as amended by Act 242. The court in SHOPO v. SPJ did not answer this question, so SHOPO v. SPJ is not controlling in this regard.

Similarly, Civil Beat’s reliance on Painting Industry is also misplaced. Civil Beat relies on a single statement in Painting Industry that, because the UIPA implements the constitutional right of privacy, “the scope of information protected must be consistent with that right.” (Quoting Painting Industry, 69 Haw. at 453, 746 P.2d at 81-82). Civil Beat argues that this means that the scope of the privacy interest in the UIPA, as amended by Act 242, is identical to the constitutional right discussed in SHOPO v. SPJ.

First, the court’s conclusion in Painting Industry is not dispositive because it was interpreting the statutory right of privacy as it stood before the UIPA was enacted. Second, although the court in Painting Industry looked to the scope of the privacy protection in article I, section 6 of the Hawai # i
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### Constitution to help determine the scope of the statutory right of privacy, the court’s statement that the statutory right “must be consistent with” the constitutional right means simply that the legislature may not limit the scope of privacy protected so as to allow disclosure of records that are protected by the constitution. Put another way, article I, section 6 establishes a floor for protection of privacy rights, but does not preclude the legislature from providing greater protection. Thus, contrary to Civil Beat’s argument, Painting Industry does not stand for the proposition that the legislature is powerless to amend the statutory right to privacy to provide protections beyond what was discussed in SHOPO v. SPJ.

SHOPO also asserts that part of the SHOPO v. SPJ court’s analysis was that the legislature, in the applicable version of the UIPA, had unambiguously determined “as a matter of public policy” that police officers do not have a significant privacy interest in information about their disciplinary suspensions. SHOPO contends that this means that this court acknowledged that it is the Hawai # i Legislature’s responsibility to “define constitutional protected privacy rights.” Although 9

In su pport of t his a rgume nt, S HOPO also cites to t he Pr oceed ings 9 of th e Con stitu tiona l Con venti on ofHawa i # i, wh ich s tates that the Conve ntion , when draft ing a rticl e I, secti on 6, felt that : 

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### we do not agree that it is the Legislature’s exclusive role to “define” the constitutional privacy right, nevertheless, as set forth above, the legislature is not precluded from providing privacy protections greater than those provided by the constitution.

Civil Beat also relies on OIP Opinion Letter No. 97-01, which concludes that “Act 242 recognized that suspended police officers . . . have a significant privacy interest in information relating to their employment misconduct.” Id. at 5. The OIP went on to analyze the effect of the SHOPO v. SPJ decision on Act 242, and determined that:

The S HOPO rulin g eli minat es th e pri mary inten t of Act 242 .
. . of re cogni zing that suspe nded polic e offic ers h ave s ignif icant priv acy i ntere sts i n emplo yment -rela ted m iscon duct infor matio n. B ecaus e the S HOPO decis ion e rodes the signi fican t wei ght assig ned b y the Legi slatu re to the suspe nded offic er’s priva cy in teres t, as set out i n Act 242, thenonlya “scin tilla ” of publi c int erest is e noughto o verco me this priva cy in teres t in the b alanc ing t est.



### (...continued)

We inthe bill of ri ghts commi ttee couldhave gone throu gh th e pro cess of li stingall the d iffer ent w ays in wh ich t he ri ght t o pri vacy shoul d be prote cted, but we fe lt th at th is wa s not our job a s con stitu tiona l deleg ates, that we s houldmere ly st ate b road princ iples and then let t he le gisla ture balan ce al l the d iffer ent k inds of ri ghts- -the Freed om of Infor matio n Act , the righ t of the p eople to k now (thou gh no t put in o ur Co nstit ution , it still exis ts), the r ight of at torne ys to disc over infor matio n, th e freed om ofthe press . Th e leg islat ure s houldbala nce all o f the se di ffere nt co mpeti ng ri ghts and t hen h ave somet hing whichwoul d imp lemen t the righ t of priva cy. 1 Pro ceedi ngs o f the Cons titut ional Conv entio n of Hawai # i 197 8, at 639 (1980 ). 

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### Id. at 8. As explained supra, SHOPO v. SPJ does not “eliminate[] the primary intent of Act 242” because SHOPO v. SPJ applied the prior version of the UIPA only, and because the legislature possesses the authority to enact a broader privacy protection than that articulated by this court in SHOPO v. SPJ in its analysis of article I, section 6. Under the OIP’s analysis, which Civil Beat argues we should adopt, the legislature’s amendments to the UIPA in Act 242 would be a nullity, and the legislature would be powerless to change the scope of the privacy protection for disciplined police officers, despite article I, section 6’s mandate that “[t]he legislature shall take affirmative steps to implement this right [of privacy].” Haw. Const. art. I, § 6. Thus, the OIP’s analysis in Opinion Letter No. 97-01 is palpably erroneous and does not inform our interpretation of SHOPO v. SPJ or Act 242. 1 0



### In sum, the legislature recognized a significant privacy interest in police officers’ disciplinary suspension records in Act 242. However, as discussed below, this privacy interest does not absolutely preclude disclosure, and must still

This court has held that OIP’s inte rpret ation s of its g overn ing 10 statu tes a re en title d to defer ence unles s fou nd to be “ palpa bly e rrone ous.” Kanah ele v . Mau i Cnt y. Co uncil , 130 Hawa i # i 228 , 245 -46, 307 P .3d 1 174, 1191- 92 (2 013). An OIP o pinio n is “palp ably erron eous” when“inc onsis tent with under lyinglegi slati ve in tent. ” Id . at 246, 307 P .3d a t 119 2. 

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### be weighed against the public’s interest in the information.
B. HRS § 92F-14, as amended by Act 242, requires a weighing of the individual’s “significant privacy interest” against the public interest in disclosure SHOPO argues that when the Hawai # i Legislature enacted Act 242, it balanced the competing interests and intended to preclude police officers’ disciplinary suspension records from public disclosure without any further weighing required by the courts. Although SHOPO acknowledges that “‘once a significant privacy interest is found’ the second step is to balance that interest ‘against the public interest in disclosure,’” (citing SHOPO v. SPJ, 83 Haw. at 383, 927 P.2d at 391) it argues that the Hawai # i Legislature performed this balancing in Act 242. According to SHOPO, the legislative history of Act 242 demonstrates this intent.

Civil Beat argues that even though the legislature recognized a significant privacy interest in police officers’ disciplinary suspension records in Act 242, the legislature did not provide “absolute confidentiality” for these records, and the privacy interest must still be weighed against the public interest in disclosure before disclosure is precluded. Civil Beat contends that interpreting the UIPA to create absolute confidentiality in these types of records despite the legislature’s silence on the matter would be contrary to the 34*** FOR PUBLICATION IN WE ST’S HAWAI # I REPORTS AND PACIFI C REPORTER ***



### UIPA’s underlying purpose.

When construing a statute, “our foremost obligation is to ascertain and give effect to the intention of the legislature.” Kauai Springs, Inc. v. Planning Comm’n of Cnty. of Kauai, 133 Hawai # i 141, 163, 324 P.3d 951, 973 (2014). A statute must be read in context and construed in a manner consistent with its purpose and “each part or section of a statute should be considered in connection with every other part or section.” Id. If a statute is ambiguous, we may take into account the statute’s legislative history. Id.

HRS § 92F-13 exempts from disclosure any record that, if disclosed, would constitute a “clearly unwarranted invasion of personal privacy.” 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 disclosureoutweighs the privacy interest of the individual.” HRS § 92F14(b) then unambiguously includes police officers’ disciplinary suspension records as an example of the type of record in which the individual has a “significant privacy interest.” Nowhere in the UIPA does the legislature state that disclosure of police officers’ disciplinary records constitutes a “clearly unwarranted invasion of personal privacy.”

The terms “significant privacy interest” and “clearly
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### unwarranted invasion of personal privacy” are not the same, and where the legislature uses different terms in different parts of a statute, we must presume this was intentional, and that the legislature means two different things. Agustin v. Dan Ostrow Constr. Co., 64 Haw. 80, 83, 636 P.2d 1348, 1351 (1981). Indeed, HRS § 92F-14(a) indicates that for a “significant privacy interest” to constitute a “clearly unwarranted invasion of personal privacy,” the privacy interest at stake must be balanced against the public interest in disclosure of the information. Thus, the structure and language of HRS § 92F-14 indicate that once a “significant privacy interest” is recognized, it must be balanced against the public interest in disclosure to determine whether disclosure of the information would constitute a “clearly unwarranted invasion of privacy.”

This interpretation is supported by the UIPA’s legislative history. When the UIPA was enacted in 1988, the House Judiciary Committee explained that “described in [section 92F-14(b)] are examples of those records in which the individual has a significant privacy interest. Your Committee intends that these records are available following application of the ‘balancing test’ to determine whether the public interest in disclosure outweighs the individual privacy interest.” H. Stand. Comm. Rep. No. 342-88, in 1988 House Journal, at 969 (emphases
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### added). Commenting on the same provision, the Conference Committee also stated that “[o]nce a significant privacy interest is found, the privacy interest will be balanced against the public interest in disclosure.” Conf. Comm. Rep. No. 112-88, in 1988 House Journal, at 818. These statements in the committee reports, made in reference to versions of the provision identical to the final version (which is also identical the current version), indicate that there may be instances in which an individual has a significant privacy interest in certain information, but the public interest in disclosure is great enough that it outweighs the individual’s privacy interest.

Furthermore, this court in SHOPO v. SPJ came to the same conclusion. The SHOPO v. SPJ court stated that:

The i nstan t cas e req uires appl icati on ofHRS § 92F –13(1 ), ex cepti ng fr om th e gen eral discl osure requi remen t “[g ]over nment reco rds w hich, if d isclo sed, wouldcons titut e a c learl y unw arran ted i nvasi on of perso nal p rivac y[.]” The conf erenc e committe e’s expla natio n of this provi sion, whic h it “inte nded to serve as aclea r leg islat ive e xpres sion of in tent shoul d anydisp ute a rise as to the meani ng ofthes e provi sions [,]” is th at, “ [o]nc e a s ignif icant priv acy inter est i s fou nd, t he pr ivacyinte rest will be balan ced a gains t the publ ic in teres t in discl osure . If th e pri vacy inter est i s not ‘sig nific ant,’ a scint illa of pu blic inter est i n dis closu re wi ll precl ude afind ing o f a c learl y unw arran ted i nvasi on of pe rsona l pri vacy. ” Co nf. C omm. Rep. No. 1 12–88 , in 1988 House Jour nal, at 81 7–18. 

### SHOPO v. SPJ, 83 Hawai # i at 383-84, 927 P.2d at 391-92.

This court thus found that:
HRS § 92F– 14(b) (4) e xpres sly c onfir ms th at an


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indiv idual has a “si gnifi cant priva cy in teres t” in infor matio n in an ag ency' s per sonne l fil e, wi th th e excep tion of th e spe cifie d inf ormat ion r elati ng to misco nduct . Th is in forma tion unrel ated to mi scond uct, there fore, is e xempt fromthe gener al di sclos ure requi remen t unl ess “ the p ublic inte rest in di sclos ure outwe ighs the p rivac y int erest s of the i ndivi dual. ” 

### Id. at 399-400, 927 P.2d at 407-08 (emphasis added).

The SHOPO v. SPJ court therefore held that information in which an individual has a “significant privacy interest,” such as “information unrelated to misconduct,” may nonetheless be subject to disclosure if the public interest in disclosure outweighs the individual’s privacy interest.

Although, as noted above, the SHOPO v. SPJ court was applying a prior version of the UIPA, nothing in Act 242’s amendments to the UIPA purports to change this analysis. Act 242 amended section 92F-14 so that the provision required disclosure for police disciplinary actions resulting in discharge, but 1 1 

### left all other types of disciplinary action in the “significant privacy interest” category, for which additional weighing is required. In fact, the textual amendments in Act 242 support

Pursu ant t o SHO PO v. SPJ, if apoli ce of ficeris d ischa rged rathe r 1 1 than suspe nded as a resul t of a dis cipli nary actio n, di sclos ure w ould be requi red u pon s howin g a m ere “ scint illa” of p ublic inte rest in di sclos ure. Shopo v. S PJ, 8 3 Haw ai # i at 383-8 4, 92 7 P.dat 3 91-92 (“Ifthe priva cy inter est i s not ‘sig nific ant,’ a sc intil la ofpubl ic in teres t in discl osure will precl ude afind ing o f a c learl y unw arran ted i nvasi on ofpers onal priva cy.”) (quo ting Conf. Comm . Rep . No. 112- 88, i n 198 8 Hou se Jo urnal at 8 17- 18). We n ote t hat b ecaus e Act 242 recog nizes a si gnifi cant priva cy in teres t in su spens ion r ecord s, an d all of t he re cords at i ssue in th e pre sent case invol ve di scipl inarysusp ensio ns ra ther than disch arges , the “sci ntill a” te st is no t app licab le he re. 

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### this analysis because in addition to including police officers’ disciplinary suspension records as a “significant privacy interest,” Act 242 changed the title of HRS § 92F-14 from “Clearly unwarranted invasion of personal privacy” to “Significant privacy interest; examples.” 1995 Haw. Sess. Laws, Act 242 § 1, at 641. This amendment further clarifies that the listed examples are not “clearly unwarranted invasions of personal privacy,” but are instead “significant privacy interests.”

Further, although SHOPO v. SPJ was decided after the legislature enacted Act 242, the OIP had also come to the same conclusion before Act 242 was enacted. See OIP Op. Ltr. No. 90-12, February 26, 1990, at 8, available at http://files.hawaii.gov/oip/opinionletters/opinion 90-12.PDF (stating that although an agency employee has a “significant privacy interest” in information relating to disciplinary action that is not in response to a “formal charge,” there are circumstances where “the public interest in disclosure may outweigh the employee’s privacy interest in the fact that disciplinary action was taken and the circumstances surrounding that action”) (emphasis added).

The legislature is presumed to know the law when it enacts statutes, including this court’s decisions, and agency
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### interpretations. See Agustin, 64 Haw. at 83, 636 P.2d at 1351 (“[T]he legislature is presumed to know the law when enacting statutes, and we must presume that the legislature knew of the definition we assigned to the word ‘accrued’ in Yoshizaki v. Hilo Hospital, 50 Haw. 150, 433 P.2d 220 (1967), at the time it amended § 657-8 in 1972.”); Keliipuleole v. Wilson, 85 Hawai # i 217, 225-26, 941 P.2d 300, 308-09 (1997) (“Presumably the legislature was aware of the status of the law and the policies of the [Board of Land and Natural Resources], yet declined to amend the statute.”). Thus, we must presume that the legislature was aware of the OIP’s interpretation of HRS § 92F-14 when it enacted Act 242. The legislature nonetheless chose to place police officer disciplinary suspension records in the provision that recognized a “significant privacy interest,” instead of creating an explicit exclusion from the UIPA’s disclosure requirements.

SHOPO cites to remarks in the legislative history of Act 242 to support its argument that the legislature intended, in Act 242, to conclusively weigh the interests and find that police officers’ disciplinary suspension records are precluded from disclosure.

However, SHOPO’s argument is without merit. First, as explained supra, the language of the UIPA, as amended by Act 242,
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### unambiguously requires us to balance the interests upon finding a significant privacy interest, and as such, we need not resort to the legislative history in order to interpret it. See Seki ex rel. Louie, 133 Hawai # i at 406-07, 328 P.3d at 415-16. Second, an analysis of Act 242’s legislative history reveals no clear statement of intent that would warrant overriding what appears to be clear from the plain language of the statute–-that we must weigh the police officers’ significant privacy interest against the public interest in disclosure of their disciplinary suspension records.

To support its argument, SHOPO points to two committee reports accompanying S.B. No. 171 (the bill that proposed Act 242) which, SHOPO argues, indicate that the legislature intended to preclude disclosure of disciplinary suspension records. First, the joint Senate Standing Committee report of the Judiciary, Agriculture, Labor, and Employment Committees, which referred to the original proposed version of S.B. No. 171, stated: “The purpose of the bill, as originally received, is to exclude from required disclosure under the government records law, information pertaining to police department personnel misconduct.” S. Stand. Comm. Rep. No. 627, in 1995 Senate Journal, at 1064. The joint committees went on to amend the bill
as follows:
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To ad dress some of t he co ncern s exp resse d in testi mony, yourComm ittee s hav e ame nded this bill by exten ding the a pplic abili ty ofthe discl osure requi remen t to acts of po lice misco nduct whic h res ult in th e dis charg e of an of ficer . Yo ur Co mmitt ees h ave furth er am endedthis bill by d irect ing t he ch ief o f each count y pol ice d epart ment to su bmit an an nual repor t to the l egisl ature cont ainin g inf ormat ion o n the n umberof p olice offi cers suspe nded or di schar ged by th e dep artme nt ov er th e yea r. Y our C ommit tees find that this bill, as a mende d, ba lance s the conc ern o ver the p ublic ’s ri ght t o kno w wit h the cons idera tions invol ved i n ens uringand maint ainin g an effec tive syste m of law e nforc ement in t he St ate. 

### S. Stand. Comm. Rep. No. 627, in 1995 House Journal, at 1064.

However, contrary to SHOPO’s argument, this purpose statement merely shows that the committees read the bill as proposing to exclude disciplinary suspensions from required disclosure; that is, the type of disclosure that disciplinary discharge records are subject to (where a “scintilla” of public interest in disclosure is sufficient to require disclosure). The report, however, is silent as to the whether other records (e.g., those for which disclosure is not “required,” but in which there is a “significant privacy interest”) are subject to balancing against the public interest in disclosure.

SHOPO also argues that the joint committees’ addition of a legislative reporting requirement to HRS § 52D-3.5 1 2

This propo sal w as ul timat ely e nacte d as HRS § 52D- 3.5, which 12 provi des, in re levan t par t:

(a) T he ch ief o f eac h cou nty p olice depa rtmen t sha ll submi t to the l egisl ature no l ater than Janua ry 31 of each year an an nual repor t of misco nduct inci dents 

### (continued...) 42*** FOR PUBLICATION IN WE ST’S HAWAI # I REPORTS AND PACIFI C REPORTER ***



### constituted the legislature’s solution after it had balanced the privacy interests of the officers against the public interest in disclosure. However, there is no indication that HRS § 52D-3.5 was the product of such balancing. The committee stated that the bill would “balance[] the concern over the public’s right to know with the consideration involved in ensuring and maintaining an effective system of law enforcement in the State.” Id. (emphasis added). This, however, is not the same balancing that must be performed under HRS § 92F-14(a) because there is no mention of the “privacy interest of the individual.” HRS § 92F-14(a).

SHOPO next points to a standing committee report of the House Judiciary Committee, which states that “[t]he purpose of [S.B. No. 171] is to prevent the disclosure of the names of administratively disciplined police officers, unless they have been discharged from the force.” H. Stand. Comm. Rep. No. 1584, in 1995 House Journal, at 1627.

Although the purpose statement in this report also seems to support SHOPO’s argument, the House draft bill accompanying the report, S.B. 171, S.D.1, H.D.1, 18th Leg., Reg. Sess. (1995), contained a statement that the purpose of the bill

(...continued)

that resul ted i n sus pensi on ordisc harge of apoli ce offic er.



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### was to “provid[e] that the names of the administratively disciplined officers are not subject to the disclosure requirements of [section 92F-14(b)(4)] unless the discipline imposed is discharge from the force.” Again, this statement suggests that the intent was merely to prevent mandatory disclosure of disciplinary suspension records, but is silent as to whether further weighing against the public interest in disclosure is required.

Furthermore, the remainder of the committee report does not support SHOPO’s argument. The committee concluded that “the release of police officers’ names simply because they have been suspended is not appropriate since they are subject to more stringent standards and tougher discipline than most other government employees[.]” H. Stand. Comm. Rep. No. 1584, in 1995 House Journal, at 1627 (emphasis added). The committee also expressed concern that police officers, “unlike most government and private employees, are subject to para-military discipline which manifests itself in the form of frequently applied suspensions from duty for misconduct or violation of departmental
rules.” Id.

Thus, the clear concern of the House committee was that requiring disclosure of disciplinary suspension records in all cases would lead to the disclosure of officers’ names for rule

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### violations which, in other professions, would not be as serious and may not result in suspension. The corollary to this concern is the committee’s apparent recognition that in more serious circumstances, disclosure of disciplinary suspension records is appropriate. The committee’s concern is thus consistent with interpreting Act 242 as requiring a balancing of the individual officers’s privacy interests against the public interest in disclosure. Instances of less serious police officer misconduct, even those resulting in suspension, would likely not be subject to disclosure because the officers’ significant privacy interests would outweigh the public’s interest in knowing about the misconduct. The more egregious the misconduct, the more likely the public interest would outweigh the individual privacy interest. SHOPO also relies on floor remarks by legislators who voted on Act 242 to support its argument that the legislature conclusively weighed the competing factors and determined that disciplinary suspension records should not be disclosed. For example, SHOPO cites to remarks made by Representative Amaral:

[P]ol ice O ffice rs ar e hel d to high stand ards, are held to st rict rules , are moni toredand chast ised in wa ys that I hav e nev er se en ot her p eople chas tisedor punis hed. And n ow I hear that the p ublic is f earfu l of what polic e off icers may be do ing a nd, t heref ore, it ne eds to ha ve th e nam es ofthos e pol ice o ffice rs th at ha ve



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been disci pline d adm inist rativ ely. I he ar th at po lice offic ers n eed t o be trust ed an d so the w ay th at po lice offic ers c an be trus ted i s if they will discl ose t he names of t hose offic ers t hat t hey h ave d iscip lined
. The t rust is a two-w ay st reet. I t hink you’v e got to trust that ther e are syst ems a nd pl aces for m onito ring the b ehavi or ofthes e off icers , forcorr ectin g the ir behav ior, for p unish ing t hem a pprop riate ly. 

### (Quoting 1995 House Journal, at 681 (remarks of rep. Amaral)).

SHOPO also refers to remarks made by Senator Graulty, who quoted the testimony of HPD Chief Michael Nakamura:

I als o wan t to insti ll inthe publi c the trus t and confi dence that if a n off icer commi ts a crimi nal a ct, that offic er is pros ecute d to the f ulles t ext ent o f the l aw an d the name of t he of ficeris d isclo sed publi cly. Simi larly , if an of ficeris s ued c ivill y, that offic er’s name becom es pa rt ofthe publi c rec ord. Howev er, i t is not f air t o pun ish p olice offi cers in the m edia, nor is it fairto e xpose and subje ct th eir frien ds an d fam ilies to s corn, reta liati on an d thr eats by di sclos ing t he po lice offic ers’ names . 

### (Quoting 1995 Senate Journal, at 287 (remarks of Senator Graulty)). SHOPO’s reliance on these floor remarks is misplaced. First, remarks by individual legislators are not attributable to the full legislature that voted for the bill, and as such are less reliable indicators of legislative intent. See Wright v. Home Depot U.S.A., Inc., 111 Hawai # i 401, 411 n.8, 142 P.3d 265, 275 n.8 (2006) (“To the extent that legislative history may be considered, it is the official committee reports that provide the authoritative expression of legislative intent. . . . Stray comments by individual legislators, not otherwise supported by

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### statutory language or committee reports, cannot be attributed to the full body that voted on the bill.”) (quoting Bennett v. Yoshina, 98 F. Supp. 2d 1139, 1150 (D. Haw. 2000)).

Second, even if we were to consider individual legislators’ remarks as evidence of legislative intent, these remarks, like the committee reports, do not support SHOPO’s argument because they do not expressly state any intent to preclude disclosure of disciplinary suspension records without first weighing the individual officers’ privacy interests against the public interest in disclosure. Further, the remarks indicate the same concern noted by the committees, that requiring disclosure of suspension records could result in disclosure of officers’ identities when they have been disciplined for relatively non-serious misconduct. For example, in remarks not cited by SHOPO, Representative Alcon stated, in support of S.B. No. 171: [T]hi s bil l is a goo d bil l bec ause the p olice offi cers

have a wayof h andli ng th eir i ntern al pr oblem s. Y ou mean to sa y, ju st be cause the polic eman did n ot sh ine his s hoes that we wi ll ha ve to publ ish h is na me inthe paper ? Yo u mea n to say t hat i f a p olice man i s lat e repor ting to wo rk, w e hav e to publi sh hi s nam e in the paper ? Yo u mea n to say i f a p olice man d id no t mak e his r eport , do we ha ve to publ ish h is na me inthe paper ? 

### 1995 House Journal, at 682 (remarks of Rep. Alcon).

Again, recognition of these concerns is consistent with a reading of the UIPA that requires us to weigh the police
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### officers’ privacy interest in disciplinary suspension records against the public interest in disclosure of the records.

Civil Beat, in further support of its position, argues that the legislative history of subsequent amendments to HRS §§ 92F-14 and 52D-3.5 in 2014 demonstrates that the legislature intended for the courts to weigh individual officers’ privacy interests against the public interest in disclosure even after a significant privacy interest has been shown.

In Act 121, signed into law in 2014, the legislature specified with greater detail the information that police chiefs must report to the legislature in their annual reports regarding police discipline. Act 121 also changed the number of days that must elapse following a written decision affirming an employee’s discharge or suspension before records may be disclosed from thirty to ninety in HRS § 92F-14(b)(4)(B)(v). See 2014 Haw. Sess. Laws, Act 121, §§ 1-2, at 333-35.

In arguing that the 2014 legislative history supports its position, Civil Beat notes that the Conference Committee “rejected the House’s effort to address police suspensions by statute.” The House had proposed amending the exception provided in HRS § 92F-14(b)(4)(B) to read, in relevant part: “provided that this subparagraph shall [not] apply to a county police department officer [except] only in a case which results in the
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### suspension of one year or more for one incident or the discharge of the officer[.]” S.B. 2591, S.D.1, H.D.1 § 2, 27th Leg., Reg. Sess. 2014 (brackets and emphasis in original). The Conference 1 3 

### Committee deleted this proposed language and stated that its version of the bill “creates a more informed public dialogue about misconduct by police officers while recognizing that the balance of privacy and public interest is not easily defined and is a task better suited to common law.” Conf. Comm. Rep. No. 32- 14, in 2014 House Journal, at 1481-82. Thus, according to Civil Beat, “[t]he Legislature . . . refused to amend the misconduct exception to address police suspensions because it interpreted the existing plain language of the UIPA as leaving the balance of interests to the courts[.]”

In addition, Civil Beat explains that when the HouseJudiciary Committee proposed its amendment to HRS § 92F14(b)(4)(B), it cited SHOPO v. SPJ and acknowledged that the decision may result in disclosure of such records:

Your Commi ttee respe ctful ly no tes t hat c onsis tent with [SHOP O v. SPJ], allo wing the d isclo sure of su spens ion infor matio n ins tead of ju st di schar ge in forma tion does not v iolat e the priv acy r ights of i ndivi dual polic e offic ers. The Hawai # i Sup reme Court heldin S HOPO v. SPJ t hat, “The infor matio n tha t mus t be discl osed pursu ant H RS § 92F-1 4(b)( 4)(B) [sic ] reg ardin g a publi c emp loyee ’s employm ent-r elate d mis condu ct an d

The b racke ts inthe text indic ate l angua ge th at th e dra ft bi ll 13 propo sed d eleti ng fr om th e exi stingstat ute, and t he un derli ned t ext i ndica tes langu age t hat t he dr aft b ill p ropos ed ad ding to th e sta tute. 

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resul ting disci pline , is not “ highl y per sonal and intim ate i nform ation ” andis, there fore, not withi n the s cope of Ha waii’ s con stitu tiona l rig ht to priva cy.” None thele ss, y our C ommit tee h as de termi ned to li mit r equir ed di sclos ures of po lice misco nduct to suspe nsion s of one y ear o r mor e perinci dent and disch arges . 

### H. Stand. Comm. Rep. No. 1360-14, in 2014 House Journal, at 1364. Civil Beat argues that the Legislature therefore “knew that failure to amend the misconduct exception or enact a confidentiality statute may result in disclosure under SHOPO v.
SPJ.” SHOPO is correct that we should be wary of “bootstrap[ping] the 2014 legislature’s intent to the 1995 legislature’s intent in enacting Act 242.” The legislative history for Act 121 cited by Civil Beat is indicative of the 2014 legislature’s intent when enacting Act 121. It is not dispositive of the 1995 legislature’s intent when it enacted Act 242. Further, the 2014 House Judiciary Committee’s reference to SHOPO v. SPH is not relevant to the issue here because SHOPO v. SPJ did not interpret Act 242. Thus, the 2014 legislature’s rejection of the proposed amendment to HRS § 92F-14(b)(4)(B) does not inform our understanding of Act 242.

Ultimately, although the relevant legislative history of Act 242 contains some evidence of an intent to preclude disclosure of police disciplinary suspension records, the

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### legislative history of Act 242 as a whole lacks any clear statement of such intent, which would be contrary to the plain language of the statute. At best, the legislative history shows an intent to preclude disclosure of disciplinary suspension records in certain circumstances--i.e., where the police officers’ misconduct is not egregious. This is consistent with our reading of the plain language of HRS § 92F-14, which requires, after finding a significant privacy interest in the records sought, balancing that privacy interest against the public interest in disclosure of the records.
C. Given the limited factual record in this case, we must remand to the circuit court to weigh the public and privacy interests The circuit court, relying on SHOPO v. SPJ, reasoned that police officers have no protected privacy interest in their disciplinary records and concluded that “public access interest would outweigh non-existent privacy interests in on-duty police misconduct.” By not considering police officers’ “significant privacy interest” in their records, the court did not engage in the balancing required by HRS § 92F-14. Given the limited factual record developed in this case, this court cannot now properly weigh the interests in each instance of misconduct. Thus, we must remand this case to the circuit court to determine whether the public interest in disclosure outweighs the privacy
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### interests at stake. As contemplated by HRS § 92F-15, the court should conduct an in camera review of the records and determine 1 4 

### on a case-by-case basis whether disclosure is warranted. See HRS § 92F-15(b) (In actions to compel disclosure of government records, “[t]he circuit court may examine the government record at issue, in camera, to assist in determining whether it, or any part of it, may be withheld”).

If the interests weigh in favor of disclosure of a record, the court should also determine whether any redaction is necessary, such as to remove identifying information of the victim of a crime. Moreover, there is no compelling public interest in the disclosure of police officers’ confidential personal information such as home addresses, dates of birth, social security numbers, driver’s license numbers, and bank account information. Such information, if present in relevant records, must be redacted.

We further note that this court, as well as many others, has emphasized the weight of the public interest in cases involving police officer misconduct. In SHOPO v. SPJ, this court recognized that “the appropriate concern of the public as to the proper performance of public duty is to be given great weight”

An incame ra re view is a judge ’s pr ivate cons idera tion of 1 4 evide nce. See Black ’s La w Dic tiona ry 87 8 (10 th ed . 201 4) (d efini ng “i n camer a” as “[i] n the judg e’s p rivat e cha mbers ”). 

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### when balanced against competing privacy interests. 83 Hawai # i at 399, 927 P.2d at 407 (quoting Cowles Publ’g Co. v. State Patrol, 748 P.2d 597, 605 (Wash. 1988)). This is true when “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.” Id.

Similarly, in Rutland Herald v. City of Rutland, the Supreme Court of Vermont explained that substantial weight should be given to the public interest in disclosure because “there is a significant public interest in knowing how the police department supervises its employees and responds to allegations of misconduct.” 84 A.3d 821, 825 (Vt. 2013). The court highlighted the importance of the public’s ability to “gauge the police department’s responsiveness to specific instances of misconduct [and] assess whether the agency is accountable to itself internally[.]” Id. (internal quotation marks and citation omitted). In Tompkins v. Freedom of Information Commission, the Connecticut Appellate Court reviewed records regarding the disciplinary investigation of a discharged police officer and emphasized the need to “facilitate the public’s understanding and evaluation of the [department’s] investigative process, decision-making and overall handling of an important matter
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### involving a fellow police officer.” 46 A.3d 291, 299 (Conn. App. Ct. 2012). The court further noted that “the more egregious the specific behavior, the more a finding of legitimate public concern is warranted.” Id.

Lastly, in City of Baton Rouge/Parish of East Baton Rouge v. Capital City Press, L.L.C., the Louisiana First Circuit Court of Appeal found that “the public has a strong, legitimate interest in disclosure” of records of investigations into police misconduct. 4 So.3d 807, 821 (La. Ct. App. 2008). The court reasoned that “[t]he public should be ensured 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. (internal quotation marks and citation omitted).

These cases recognize the compelling public interest in instances of police misconduct given the importance of public oversight of law enforcement. 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
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### operate. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1035 (1991) (“[T]he press . . . guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.”) (quoting Sheppard v. Maxwell, 384 U.S. 333, 350 (1966)). The more egregious the misconduct, and the more closely connected to the officer’s performance of his or her duties as an officer, the more compelling this public interest.

Here, though the descriptions of the records requested by Civil Beat are brief (recounted in full, supra, part I.A), it is clear that the records involve serious misconduct. These records include falsifying police reports, use of malicious force, wilfully injuring another employee, fabricating facts regarding probable cause, hindering investigations, and misappropriating police funds. Further, two of the records––(1) the seventy-seven day suspension for falsifying a police report and being untruthful during an investigation and (2) the six hundred twenty-six day suspension for hindering a federal investigation–-appear to involve particularly egregious conduct, as demonstrated by the length of the suspension imposed.

With these considerations in mind, during its in camera review of the records, the circuit court should review the misconduct at issue in each case and determine whether the public
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### interest in disclosure of such conduct outweighs the privacy interests of a particular officer.
D. SHOPO may not invoke the “frustration of a legitimate government function” exception on HPD’s behalf SHOPO also argues that “[t]he disclosure of a police officer’s disciplinary records would frustrate a legitimate government function” pursuant to HRS § 92F-13(3). In response, 1 5 

### Civil Beat argues that SHOPO may not invoke the legitimate government function exception because only the agency from which the records have been requested may invoke the exception.

We conclude that Civil Beat is correct that only the relevant government agency--in this case HPD--may invoke this exception. In OIP Opinion Letter No. 98-02, the OIP addressed arguments made by Hawai # i Management Alliance Association (HMAA) that the disclosure of eligible charges listed in HMAA’s contract with Kona Community Hospital (KCH) would frustrate a legitimate government purpose. OIP Op. Ltr. No. 98-02, at 1, 9, available at http://files.hawaii.gov/oip/opinionletters/opinion 98-02.pdf. HMAA argued that disclosure of the charges would mean other healthcare benefits companies would discover KCH’s lowest

HRS § 92F- 13 pr ovide s, inpert inent part : “T his p art s hall not 1 5 requi re di sclos ure o f: . . . ( 3) Go vernm ent r ecord s tha t, bythei r nat ure, must be co nfide ntial in o rder for t he go vernm ent t o avo id th e fru strat ion o f a legit imate gove rnmen t fun ction [.]” 

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### acceptable price, which would mean they could negotiate lower payments to KCH, which in turn would result in higher copayments for patients. Id. at 9. The OIP stated that:

Altho ugh HMAA r aises thes e fru strat ion a rgume nts o n behal f of KCH a nd [H awai # i Hea lth S ystem s Corpo ratio n], t he fe deral cour ts ha ve re fusedto a llow a sub mitte r to make such an ar gumen t on a gov ernme nt agenc y’s b ehalf , par ticul arly where the agenc y decli nes t o mak e the argu ment itsel f. H ercul es, I nc. v. Ma rsh, 839 F .2d 1 027, 1030 (4th Cir. 1988) (whe re an ag ency decli nes t o arg ue th at di sclos ure o f infor matio n wou ld impair the a gency ’s ab ilityto obtai n sim ilar infor matio n in the f uture , the cour t will not a llow the s ubmit ter t o rai se th e iss ue onthe agenc y’s b ehalf ). And inComd isco, Inc. v. G SA, 8 64 F.Sup p. 51 0 (E. D. Va . 199 4), t he co urt d eferr ed to the agenc y’s d eterm inati on th at di sclos ure o f the reque sted infor matio n wou ld no t imp air t he ag ency’ s abili ty to obta in su ch in forma tion in th e fut ure. The Comdi sco c ourt obser ved t hat t he ag ency is inthe best situa tion to de termi ne ifdisc losur e wou ld in hibit futur e sub missi ons. Id. at 51 5. 

### Id. at 9-10 (footnote omitted).

The OIP thus concluded that “[a]s the agency does not claim that disclosure of the eligible charges from the HMSA and HMAA Contracts frustrates any legitimate government function of KCH or HHSC, the OIP finds that there is no frustration.” Id. at 10 (emphasis added). SHOPO has not argued that the OIP’s interpretation of HRS § 92F-13(3) is erroneous.

As Civil Beat notes, HPD did not claim in the circuit court that disclosure of the suspension records would frustrate

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### any government purpose. Moreover, HPD filed a notice of no 1 6 

### position regarding SHOPO’s appeal. Thus, HPD has not claimed at any point in this litigation that disclosure of the records at issue would frustrate any legitimate government purpose, and SHOPO, as a third-party intervenor, cannot make that argument on
HPD’s behalf.
IV. Conclusion

HRS § 92F-14 recognizes a significant privacy interest in police officers’ disciplinary suspension records, and this interest must be balanced against the public interest in disclosure of the requested records. Given the limited factual record in this case, we cannot definitively determine whether disclosure of the requested records is appropriate. The circuit court must engage in an in camera review of the requested records and determine whether the public interest outweighs the officers’ significant privacy interest in each instance. Thus, we vacate

In it s opp ositi on to Civi l Bea t’s M SJ, H PD ar gued only the i ssue 16 of wh etherdisc losur e wou ld co nstit ute a n unw arran ted i nvasi on ofthe polic e offic ers’ perso nal p rivac y. M oreov er, a t the hear ing o n Civ il Be at’s MSJ, the only argum ent H PD ma de wa s tha t, wh en Ci vil B eat m ade i ts re quest for the recor ds inthis case , HPDwas precl uded from relea sing the r ecord s pur suant to a 200 1 cir cuit court orde r. 

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### the circuit court’s June 10, 2014 final judgment and remand for proceedings consistent with this opinion. Keani Alapa and Vladimir Devensfor intervenor-defendantappellant Donna Y.L. Leong, Paul S. Aoki, Duane W.H. Pang and Nicolette Winter for defendants-appellees City and County of Honolulu and Honolulu Police Department Robert Brian Black for plaintiff-appellee Peer News LLC Jeffrey S. Portnoy and John P. Duchemin for amicus curiae The Reporters Committee for Freedom of the Press /s/ Mark E. Recktenwald /s/ Paula A. Nakayama /s/ Michael D. Wilson /s/ Jeffrey P. Crabtree

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