Category Archives: Sunshine

Judge Alan Kay remembered

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I was very sorry to learn of the recent death of retired Federal Judge Alan C. Kay, who served from 1986 to 2000 before moving to senior status.

I remember Kay quite well as the author of a lengthy April 1993 opinion invalidating a state law limiting the disclosure of information about complaints filed with the Campaign Spending Commission. Kay ruled the law was a clear violation of First Amendment rights.

The law made it a criminal misdemeanor for “any person” to disclose information about a complaint unless the commission first found “probable cause” that a violation had occurred. A violation was punishable by up to a month in jail and a fine of up to $1,000.

Kay’s decision was a strong affirmation of the First Amendment and a rather scathing comment on the state’s defense of what he saw as a clearly unconstitutional law.

Here’s a short version of the story.

At that time, I was publishing a monthly newsletter, Hawaii Monitor. An article in the June 1992 issue described a complaint I had filed with the Campaign Spending Commission that accused the University of Hawaii Professional Assembly (UHPA), the union whch represents faculty in the UH system, of failing to properly disclose expenditures in support of Gov. John Waihee’s 1990 reelection bid (“Commission sets hearing on UHPA complaint/UH faculty union PAC belatedly reports cost of Waihee ad“).

That short article prompted UHPA to complain to the commission that I had violated the confidentiality provision of the law. In an attempt to head off further commission action, my lawsuit was filed asking for the law to be declared unconstitutional and an injunction issued to prevent its enforcement. I was represented by Honolulu attorney Clayton Ikei, who recently passed away.

• Read Judge Kay’s 1993 decision in the case of Lind v. Grimmer on Justia.com

Kay’s decision was upheld by the 9th Circuit Court in a decision still cited in First Amendment cases.

• Read the 9th Circuit Court’s decision filed July 22, 1994.

Just a few odds and ends…

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Let’s see. A few little things to report.

• A week ago, I posted Part 2 of something I entitled, “It could have been a simple traffic ticket.” At that time, I wrote that a motion filed by Miske’s attorneys seeking to suppress evidence drawn from his cell phone during an arrest on December 4, 2015, was “pending.”

The judge’s order denying the motion was filed that same day, and I haven’t gotten around to updating that entry. But for now, here’s what Judge Watson had to say.

In an order filed on November 15, Judge Derrick Watson denied the motion to suppress, concluding the search and arrest of Miske were not unreasonable under the Fourth Amendment.

Miske’s attorneys produced “not one shred of evidence” that there was any “ruse or otherwise nefarious conduct with regard to the search and arrest of Miske on December 4, 2015,” Watson wrote. Without evidence, allegations in the motion amounted to mere speculation, according to the order.

Finally, Watson rejected the argument that the federal search warrant was constitutionally flawed because it didn’t comply with state law.

“Miske does not cite to any case supporting the notion that such an alleged failure or violation of State law alone refers an otherwise valid search unreasonable,” the order concluded.

• Back when Amazon first offered their Prime membership with unlimited file storage, I jumped on the service. When we moved from Kaaawa into town a little over eight years ago, I scanned a whole lot of old financial records, tax returns, bank and investment statements, etc. Then I uploaded a copy to Amazon Drive, and shredded the originals. I also uploaded thousands of photos, which ended up being moved over to Amazon Photos.

Fast forward to earlier this year, when Amazon announced it was discontinuing Amazon Drive at the end of December. Ouch!

There have been mixed messages from Amazon about whether non-photo files would continue to be accessible through Amazon Photos, or whether we need to rescue them by downloading to safe storage before the end of the year.

I’m paranoid enough that I’m preparing to do the download. The Amazon Photo app just made that easier by providing an easy way to download all non-photo or video files at once.

I’ll be trying it in the next day or two, but if anyone else has already made the move, please share your experience.

• The Honolulu Police Department is slowly moving to provide more public data. I’ve been checking the daily Honolulu Police Department arrest logs for a while. You get a quick view of what’s happening around the island crime-wise from the arrest logs.

The current logs for the past several weeks can be found with this link, and then there’s a useful public archive of the arrest logs going back a couple of years.

I’ll report on other parts of their new data system as I try them out.

• Jan Kagehiro, Communications & Community Relations Director for the State Judiciary, let me know that the eCourt Kokua online data system allows searching for upcoming court hearings either by case, or by court.

In August we added a new tab in eCourt Kokua called “Upcoming Court Hearings Search.”

Upcoming Court Hearings Search: You can see at-a-glance a two-week view of upcoming hearings by searching by case identification (ID) number or by court/location. If you use search by case ID number, you can see all upcoming hearings associated with that specific case number. If you search by court/location, you can see all upcoming hearings in all cases for that specific courtroom. The information on the site is updated in real time as hearing dates are entered into the system.

So when you get into eCourt Kokua and go to view documents, you have choices for searching, by name, vehicle (license plate), case search (starting with case #), and the new selection, “upcoming court hearings search.”

This is certainly a step in the right direction, but right now it isn’t too user friendly. I won’t say more right now, since I’ve just started taking a look at how this works and how it can be used by reporters or others interested in the courts.

• We answered a knock on our door late Tuesday afternoon, and it was a salesman from Spectrum. He said he was going door to door, checking in with those who are not current customers. He was very nice and friendly, and took it well when I told him we’re quite happy with Hawaiian Telcom as our internet provider.

But it’s the first time this has happened to us, so it will be interesting to see if it represents an increase in competition between the two big cable companies in this market.

• No turkey for us this year. When we used to shop at Foodland more often, they made it difficult not to do a turkey. They are usually free with one of their coupons, which come after spending a certain amount. Now that we don’t get to Foodland often, no coupon, so it’s easier to be honest and say even a mid-size bird is too much for two people to eat. So we’re downsizing. We bought a chicken. Don’t laugh. We’ll see how it works out.

And we were amazed to see what people are paying to buy prepared Thanksgiving meals at restaurants around town. They’ve been sold out for some time, but prices for a meal for 4 went up over $300. Ouch! We’ll stick with the chicken at home.

And I’ll probably take tomorrow off in honor of the occasion, unless the morning dogs are so cute that I’ve got to post some of their pictures.

Anyway, gobble gobble. I didn’t include the whole scene with Steve Martin confronting the rental car agent, but you might want to search it out.

Civil Beat sues FBI over agency secrecy

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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.

Why not free public access to court records?

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Here’s an interesting comment left by a regular reader on Friday’s post regarding access to court records filed in digital form.

Mahalo Ian! I’m curious what the reasoning is for the truly “free” documents to only be available by adding some effort and pain to getting them…ie. having to use the courthouse terminals, or with the other suggested method…having to go to a Library to get access. Is the reasoning that there is the potential for abuse of the information if someone could access files from eCourt Kokua at home?

When I first read the comment, I started to write a reply explaining that the law allows agencies to recoup some of the cost of making copyies. Although I believe agencies can charge at little at 5 cents per page, many charge much more. I think court rules still list copy fees of $1 for the first page, and 50 cents for each additonal page, obviously far beyond the actual cost of copying.

Of course, all of this comes from the age of paper documents. Take the court records. The original documents stored at the courts where they had been filed, and it was reasonable for the public to be required to go to one of those locations to look at or request copies.

That’s why my first reaction is relief at how much easier it is to access many public records than it used to be, especially those needed for public oversight of government agencies. It’s far better than it used to be. And, to tell you the truth this sometimes that clouds my own vision.

Could easier access to court records become free public access in the future? I doubt there is any technical issue at all. The question, as it often is, comes down to money.

Here’s what Hawaii’s public records law says, in brief:

§92F-11 Affirmative agency disclosure responsibilities. (a) All government records are open to public inspection unless access is restricted or closed by law.

(b) Except 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.

When I worked at the old Honolulu Star-Bulletin back in the 1990s, there were a couple of large projects that required reviewing large batches of public records. When an agency demanded an exorbitant amount for making copies, the newspaper arranged to move its own copy machine in and reporters made the copies themselves at a much lower cost.

Here’s what the law now provides regarding copying and costs.

This has, in large part, been made obsolete for many, perhaps most purposes, by the appearance of smart phones that make scanning documents fast, inexpensive, and unobtrusive. As long as a document is made available for inspection, it can be easily scanned with a phone. So much for copying costs. I recall a period where there was agency pushback against the technology, with attempt to ban use of phones to scan documents. However, that proved to be impossible as well as likely contrary to law.

You can imagine the conversation. “Is that a phone? No phones are allowed in the document room.”
“Oh, no. It’s not a phone. It’s a portable scanner. I don’t believe there’s any rule against that.
“Well, okay, but no photos are allowed.”
“Righto, just scans. No worries.”

Back to the question of public access to court documents via the Judiciary Electronic Filing and Service System (JEFS).

I haven’t been able to locate enough information about the financial aspects of the system to be able to say what role per-page copy fees and subscriptions play in keeping the whole system running.

However, from the outside, it appears that the primary purposes of the system of filing and retrieving documents in digital form is to keep the court system itself running efficiently without being buried in paper. The primary beneficiary of the system are the courts, judges, and attorneys, while the public benefits first of all from added efficiencies and, in the long run, substantial cost savings.

Anyone familiar with the public documents room in Honolulu’s First Circuit Court knows that before transitioning to a fully online system, the amount of incoming paper far exceeded the ability to process it or the capacity to store it. There had been an early attempt to simply scan documents after they were submitted in printed form, but that quickly bogged down as well. At times, boxes of case files were stacked up in the aisles of the documents room, creating a dangerous fire hazard. And with only a few exceptions, these were all public records that we, the rest of us who aren’t directly part of the court system, have the right to inspect and, if necessary, copy.

That says to me that allowing public access is a secondary feature of the system. And that means that, at most, there are, at most, only incremental costs incurred by allowing public use of the system. So financial problems appear to be the only barrier to providing free and open public access to court records as well as those of other state and county agencies, many of which already make their document retrieval systems publicly available at no charge.

The Judiciary’s log-in page says online payments for document retrieval are handled through the Hawaii Information Consortium, which does business as NIC Hawaii, the same group behind other major agency websites in Hawaii.

NIC HAWAII

The portal manager is the Hawaii Information Consortium, LLC dba NIC Hawaii, a Hawaii corporation and wholly owned subsidiary of eGovernment firm NIC Inc. (NASDAQ: EGOV). Our sole focus is to develop, manage and maintain web-based services that make working with the government easier for the public while improving efficiency. We also manage the official website for the state of Hawaii, Hawaii.gov.

The eHawaii.gov program was initially launched in 2000. Since then over 160 web-based services have been deployed and over 2.5 million citizens visit our site annually. While we operate as a for-profit company, state agencies, counties and local government can in many cases, work with us at no cost by utilizing our unique self funded model.

For more information, see the FAQs or visit nichawaii.egov.com.https://nichawaii.egov.com/portfolio/

And last year, NIC became a wholly owned subsidiary of Tyler Technologies.

The answer to the questions about the hurdles that would have to be overcome in order to make court records available to the public without fees is, I’m sure, buried in all the links provided by NIC and the Hawaii Information Consortium.

Please dig in and share your discoveries, thoughts and observations.