Honolulu Civil Beat, Inc., the parent company of the nonprofit online news organization, filed suit earlier this month challenging the FBI’s refusal to disclose records of the agency’s investigation that led to criminal convictions of two former legislators, Ty Cullen and Kalani English.

In a lawsuit filed in Honolulu’s Federal District Court on May 18, Civil Beat alleges the FBI’s denial of access to any of its investigative files in these two cases is a violation of the federal Freedom of information Act.

Civil Beat filed separate FOIA requests seeking access to “all investigative report and materials maintained by the FBI relating to criminal charges” brought against Cullen and Enlish that were “gathered or produced between September 1, 2014 and February 15, 2022.”

“In response to Civil Beat’s requests for the investigation files, the FBI withheld everything,” according to the complaint. “By refusing to disclose any records, the FBI violated FOIA.”

The Freedom of Information Act provides for public access to government records unless they fall within a limited set of exemptions to disclosure.

In response to both the Cullen and English FOIA requests, the FBI based its continued refusal to disclose the requested records on Exemption 6 and Exemption 7(c), which related to personal privacy.

The agency stated that the legislators’ “privacy interests outweighed the public’s interest in understanding anything about the FBI’s investigation.”

The law’s general disclosure requirements do not apply if the records contain information falling in any of the exemptions spelled out in the law, and if exempt information cannot be reasonable segregated from information that is subject to disclosure.

The two exemptions relied on by the FBI specifically to personal privacy.

Exemption (6) applies to “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal
privacy.”

And Exemption (7)(c) applies to “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information that…(C) could reasonably be expected to constitute an unwarranted invasion of personal
privacy….

Both of the privacy exemptions require the agency to balance the individual’s right of privacy against against the public interest in disclosure.

The records of the criminal cases of both former legislators underscore the public interest.

The complaint reviewed the history of the two criminal cases, including comments made by the judges after the defendants were convicted which stressed the public interest in the cases.

“This was a grievous breach of the public trust,” the sentencing judge told Cullen, according to the complaint. And, after sentencing, the U.S. Attorney is quoted as saying: “Cullen’s acceptance of bribes while serving as a state legislator significantly undermined the public’s confidence in its elected officials.”

When English was sentenced, the judge told him: “What you have done here is so serious, so detrimental to the fabric of society, that surely a serious sentence is warranted.”

The legal basis for seeking disclosure will be spelled out in a future court filing.

Civil Beat is represented by the Civil Beat Law Center for the Public Interest, a nonprofit group separate and distinct from from Civil Beat, the news organization.

The Civil Beat Law Center will post additional documents in the legal case as they are filed. The law center’s website includes a summary of the case, and lins to court documents as they are filed.

The case has been assigned to Judge Susan Oki Mollway. A scheduling conference via Zoom has been set for July 17 at 9 a.m.