U Memo 18-8

Posted on Jun 7, 2018 in Informal Opinions - UIPA Opinions

U Memo 18-8
June 7, 2018
Files Relating to Police-Involved Death

The Honolulu Police Department (HPD) was not justified in withholding an administrative investigation file on the basis that it was “in litigation.”  The UIPA’s exception to disclosure for “[g]overnment records pertaining to the prosecution or defense of any judicial . . . action to which  . . . any county is or may be a party,” only applies “to the extent that such records would not be discoverable.”  HRS § 92F-13(2) (2012).  Further, this exception specifically protects against the use of the UIPA to evade privileges against discovery.  E.g. OIP Op. Ltr. No. 95-16 at 11.  In the absence of any applicable privilege against discovery, section 92F-13(2), HRS, does not allow an agency to withhold records that are “in litigation.”

However, specific items of information in that file and another file at issue could still be withheld under the UIPA.  Although a police officer does have a significant privacy interest in the information contained in internal affairs complaint files, it must be balanced against the public interest in disclosure, and OIP concluded that for these files the identities of police officers who were the subject of complaints did not fall under the UIPA’s exception for information whose disclosure would be an unwarranted invasion of individual privacy, because the subject officers’ identities were already part of the public record in court files.  OIP Op. Ltrs. No. 98-05 at 20-23 and 03-02 at 6, see also HRS §§ 92F-13(1); 92F-14(a), 92F-14(b)(4) (2012).  The identities of other government employees, including the police officers who were not the subjects of the complaints, also did not fall under any exception to disclosure under the UIPA.  E.g. OIP Op. Ltr. No. 03-15 at 9-10, OIP Op. Ltr No. 90-16; see also HRS § 92F-13(1) and (3).  Although nongovernment witnesses’ identities could generally be withheld, the plaintiffs who filed a lawsuit based on the same events waived their privacy interests in being named as witnesses and thus there was no basis under the UIPA to redact their identities.  See OIP Op. Ltr. No. 98-05 at 24; see also HRS § 92F-13(1).  In addition, phrases such as “several people” or “family members” or portions of the requested records that only stated the number of people involved or present could not be withheld based on privacy because they did not identify any individuals.  See HRS § 92F-13(1).

The information contained in narrative descriptions of events had already been largely made a matter of public record through its inclusion in court filings.  Although certain names and certain pieces of information could be redacted, there was generally no basis under the UIPA to redact narrative descriptions of events as a whole, and with the exception of specified pieces of information, such narrative descriptions were required to be disclosed.  See OIP Op. Ltr. No. 03-02 at 6.  Further, because there was no longer a prospect of criminal prosecution at time the request was made, and the information contained therein had already been made part of the public record, disclosure of officers’ To/From Statements in this instance would not potentially impair the subject officers’ constitutional right against self-incrimination, so OIP Opinion Letter Number 98-05 did not apply to allow withholding them based on the UIPA’s frustration exception.  See OIP Op. Ltr. No. 98-05 at 15; see also HRS § 92F-13(3).  HPD stated no basis for its redaction of the blocks on the To/From Responses that may be checked by the person completing the form, so those also were required to be disclosed.

“Incident Recall” log entries relating to the files at hand contained information about the incident that OIP had found to be public, such as which police officers were reporting to the scene of the incident and when, so OIP found no basis under the UIPA to redact those entries.  However, HPD properly redacted the entries showing unrelated police calls that potentially fell within the UIPA’s privacy exception.  See HRS § 92F-13(1).  Because HPD gave no basis for redacting the blocks checked and the comments written in to certain Use of Force Reports, those were required to be disclosed.  See HRS § 92F-15(c).  Disclosure of Form HPD-384 with the name of the officer concerned and other identifying information redacted would not be sufficient to prevent identification of the officer with the information contained in the form, so HPD could withhold the entire form.  See OIP Op. Ltr. No. 10-03 at 10.

Signatures do not, in and of themselves, fall under the UIPA’s privacy exception, so HPD was required to disclose the redacted signatures and handwritten initials of government employees.  E.g. OIP Op. Ltr. No. 94-01 at 3 n. 1; see also HRS §§ 92F-13(1) and -14.  HPD’s own policies require disclosure of badge and identification numbers in specified instances as discussed in this opinion, HPD provided no justification for withholding the information, and OIP had already concluded that HPD must disclose the identities of all police officers and other government employees referenced, so OIP also concluded that HPD must disclose their badge and identification numbers.  An identified government employee’s appointment date and division of employment are public information under the UIPA.  See HRS § 92F-12(a)(14) (2012).  The redacted image of a fingerprint might not be sufficiently high quality for it to be used to bypass biometric security, but OIP found that given the emerging technology in this area it passed the threshold of having a significant privacy interest, and in the absence of any real public interest in the image of the fingerprint, HPD properly redacted it under the UIPA’s privacy exception.  See HRS § 92F-13(1).

The redactions of dates of birth, personal contact information, and other personal details were justified by the UIPA’s privacy exception.  See HRS § 92F-13(1).  However, the town and even the street where the incident giving rise a file occurred were already part of the public record through litigation filings as well as media reports, so there was no basis to redact more than the street number and unit number for the address of the scene of the incident, as well as the unit numbers for other units mentioned.  See HRS § 92F-13(1).

With respect to the non-government witnesses whose identities must be disclosed, their occupation information could still be redacted.  HRS § 92F‑14(b)(5); see also OIP Op. Ltr. No. 89-13 at 7-8.  With respect to the non-government witnesses whose identities were properly withheld, their occupation information could be redacted because it could present a likelihood of actual identification of those individuals.  Occupation information for police officers and other government employees must be disclosed.  HRS § 92F-12(b)(14) (2012).

Having already concluded that the identities of the police officers who were the subject of the complaints at issue must be disclosed, OIP found no reason to redact photographs of them out of concern that they could be identified by the photographs.  Although most photographs of a deceased individual could not be withheld, OIP found a heightened privacy interest in specific photographs that was not outweighed by the public interest in disclosure, so those photographs were properly redacted.  See OIP Op. Ltrs. No. 05-16 at 12-13 and F15-01 at 10-11; see also HRS § 92F-13(1) and -14(a).

HPD was required to disclose the full autopsy and toxicology reports, as well as disclosing references to those reports or information from those reports elsewhere in the file.  See OIP Op. Ltr. F15-01.  To the extent an Emergency Medical Services (EMS) report included information that was not reflected in the autopsy or toxicology report and was not already disclosed in the unredacted portions of, e.g., accounts of events at the hospital, it could be withheld under the UIPA’s privacy exception.  See id.; see also HRS §§ 92F-13(1) and -14(a).  HPD left unredacted multiple references in witness statements to a deceased individual’s past use of illegal substances, so had waived its ability to make a privacy argument with respect to the individual’s past use of illegal substances in other places and was required to disclose such references.  See HRS § 92F-14(b)(1) (significant privacy interest in psychiatric or psychological history).  References to another person who had an unrelated health issue were properly redacted under the UIPA’s privacy exception.  See HRS § 92F-13(1).

HPD offered no justification for redaction of a description of an HPD code of conduct, and indeed was not even consistent in redacting this information, so OIP found that the summary did not fall under an exception to disclosure and was required be disclosed.  See OIP Op. Ltr. No. 98-05 at 16-17; see also HRS § 92F-15(c).  HPD failed to justify how disclosure of information about staffing assignments would reveal internal policies regarding staffing that would render staffing procedures operationally useless, and some of the information HPD redacted included information that is mandated to be public under section 92F-12(a)(14), HRS, such as the names of employees taking vacation or personal leave or who were off duty on a specified date.  HPD was required to disclose the information showing staffing assignments.  See HRS § 92F-12(a)(14) and OIP Op. Ltrs. No. 96-3 and 98-05 at 16-17.

Finally, because HPD in many cases redacted either a full page or nearly a full page, OIP advised HPD that it should not do full-page redactions as a rule, unless a requester has specifically requested it do so.