ÌìÃÀÊÓƵ

What does public mean?

The answer isn’t so clear — at least in Hawaii. This week we learned some troubling lessons, the worst being that if you keep insisting on an explanation of why the public should be required to pay just to look at a court record, you may find yourself surrounded by three burly sheriff’s deputies, as was our reporter Robert Brown.

Let me start from the beginning. I promise to make this background quick. You may recall that I’ve written about Civil Beat’s efforts to examine how the police and courts in Honolulu handle prostitution cases. The inquiry stems from our research into a human trafficking law vetoed by Gov. Linda Lingle this year.

As is the Civil Beat way, we decided to study the public record. We filed a request with the police under the state’s to see all arrest reports in prostitution cases from 2009. That was months ago, but we’re still in talks over what’s required to be made public.

In the meantime, we turned to the daily police blotter, a record about which there’s no disagreement. It lists the names, addresses, etc. of every suspect arrested on Oahu and is available for anybody to review. Since July 8, we’ve been building a database of every person arrested on prostitution charges on Oahu. (We’ll start telling you what we’ve found next week.)

To find out what happens to people arrested for the crime, we’ve also gone to District Court and paid to receive copies of the court records for a sampling of the cases. This week we returned to court, not to get copies of the other case files, just to review them.

It’s been my experience working as a reporter on the mainland that courts routinely make case files available to the public for review and that you only have to pay when you seek to copy them.

And that brings me back to the sheriff’s deputies and the lessons of this week.

A Visit to District Court

When Robert Brown showed up at District Court on Wednesday morning, asking to review 50 or so cases, he was transferred from window to window. After about an hour, he was at his fourth window.

That’s when Robert heard the word he hadn’t been expecting: “No.” He had to pay $5 per case, he was told.

Why, he asked?

The first reason was that they might not have those records in the court and may need to get them from another location, this even though the cases were recent.

Then he was told it was a “service fee charge.”

Robert knows the Civil Beat drill. We always try to understand the legal rationale and justification when we can’t review a public a record.

“Can you please show me the statute,” he said, seeking to understand the basis of the mandatory fee.

“I’m not an attorney,” he was told.

By this time, Robert had put his recorder on the counter. When a supervisor returned, he was told, “You’re not allowed to record.”

That raised even more questions. Not allowed to record in a public building? Under Hawaii law, no permission is needed for recording.

Three Deputies

Then he saw three men in uniform enter the room. He wondered what they were there for, and started looking around to see what the fuss was. It turned out it was him. A clerk pointed to him and the deputies gathered close around him.

He continued to ask why a citizen should have to pay for a public record. The supervisor wrote the number of the ¹ — on a piece of paper and put it on the counter and one of the deputies asked for Robert’s ID.

When he asked why there were officers around him, he was told, “She (meaning the clerk) has nothing to do with us being here. We choose to be here.”

Robert asked whether he was allowed to take a picture. The supervisor said, “No.” One of the deputies told Robert he wanted to be paid if Robert took his picture.

Finally, one of the officer acknowledged, “We were called by them because you were haggling them.”

After providing his ID as requested, and the name and telephone of his boss, Robert left, carrying questions about what’s public in Hawaii.

The officer who spoke was civil. And so were the clerks who dealt with him. As was Robert.

The problem seemed to be a lack of good information, on our part as well as on the court’s part.

I called the media person for the state courts to try to understand the law and she was reasonable, too. At first, Marsha Kitagawa told me the $5 per record charge “might be a search fee,” because the hard copy may be stored off site or archived. “More often than not, there’s a search fee,” she said, explaining that the District Court has to deal with a huge volume of records.

She referred me to a page on the court’s website that lists the charges. And yes, there it is, a $5 search fee. But nowhere on the page does it justify the charge.

Sara Lin, Civil Beat’s assistant editor, and I were taken aback by what had happened. She’s worked as a reporter in Los Angeles and New York. I’ve worked in Albuquerque, Santa Fe, Denver, Toronto and Chicago. What happened here in Hawaii seemed strange.

National Expert Says Record Has to Be Public

So the next morning she called a national expert about court practices, Larry Webster, principal court management consultant with the National Center for State Courts, a nonprofit court improvement organization whose work is in part informed by the Conference of Chief Justices and the Conference of State Court Administrators.

“I don’t personally know of a court that charges for access to paper records,” said Webster, who has been a court management consultant since 1979 and has worked in all 50 states. “I do know that a lot of courts are in very difficult budget times. If I were to venture a guess it’d be that we’re just in a difficult budget situation they needed to do something to cover their costs.”

“The court culture is that we want to provide access to those things where we can. If that’s been happening in Hawaii for a long time, I’d be surprised.”

“The Constitution guarantees open and public trials and the U.S. Supreme court later said that that includes the record. If the trial has to be public, then the record has to be public.”

I also talked with local attorney Jeffrey Portnoy, author of a book on mass communication law in Hawaii. He was taken aback by the court fee, too.

“This is supposed to be the people’s court and to charge $5 to get a court record to me is not reasonable,” he said.

It turns out that it appears the District Court has to charge a $5 fee for a “search of records by the clerk,” although search of records is not defined in the court rules. Is it a search when the court is told the case number and just has to pick out the file?

The courts do have an out, giving them “when justice so requires.”

Asking Questions

The misunderstanding this week raises the question what public means in Hawaii.

Our goal at Civil Beat is to answer questions citizens might have about how their government operates. That includes police and the courts.

Records are a path to understanding. They’re not the spin of press releases or the he said/she said of policy disputes. As we showed this week in our investigation of the use of overtime by the Honolulu Road Division, they reveal what government actually is doing.

We’ll keep digging for them, the way Sara and Nanea Kalani did in their series, “Roads to Riches.”

• Road to Riches: Overtime at City Road Division
• Road to Riches: City Workers Claimed 5,525 Overtime Hours for Illegal Stream Dumping
• Road to Riches: Getting Paid for Overtime Work — Twice

We’ll probably bump into problems again. It’s what happens when you ask questions. It’s why the Hawaii Legislature in 2008 unanimously approved what’s known as a “shield law,” a legal protection for journalists asked to disclose their sources and newsgathering materials in state courts.

Who knew that shield law would take on a whole new meaning this week?