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A new Honolulu Police department policy says body-worn camera footage won’t be released until an investigation is finished, but that appears to be in conflict with a recent court ruling that ordered all footage to be made public.

Late last month, a state judge ordered the Honolulu Prosecuting Attorney’s Office to release all police body camera footage connected to the shooting death of 16-year-old Iremamber Sykap — a ruling that undermined the police department’s new policy set just days earlier.

On Sept. 24, the HPD published its latest policy on the release of body camera footage. The policy states that footage will not be released before the completion of a related investigation, a noticeable change from the department’s previous policy which had no such caveat.

“Before there was no rule as far as when body camera (footage) was released to the public for external use,” Interim Chief Rade Vanic said at the Honolulu Police Commission Meeting last week. “So this just clarifies that according to the latest update, all body-worn camera footage shall be released, but not prior to the completion related to the investigation.”

According to the HPD’s new policy, an investigation is deemed to be completed when all suspects have been charged or when it is determined that no action will be taken to prosecute the case.

“It’s not sometimes we will, sometimes we won’t,” Vanic said. “We’ll release it in all cases when a request comes through but not until after such time that the investigation is complete.”

Less than a week after the new policy was set, Judge Jeffrey Crabtree ruled that the existence of an open investigation is not a good enough reason to withhold government records from the public.

However, this ruling was directed at the Honolulu Prosecuting Attorney’s Office, which had argued that the release of the bodycam footage would “frustrate” a government function, namely the investigation, which is an exemption to public records law.

The HPD is now reviewing its policy in light of the ruling, according to Michelle Yu, a department spokeswoman.

Crabtree’s decision came after the Civil Beat Law Center for the Public Interest, a nonprofit law firm that specializes in public records litigation, filed a lawsuit against Prosecuting Attorney Steve Alm’s office in May for denying an initial request for all bodycam footage related to the Iremamber Sykap shooting.

Alm’s office argued that releasing the video could “poison the jury pool” amid the ongoing investigation.

Crabtree, citing a 2018 Hawaii Supreme court case that said an “individualized determination” is needed to decide whether the disclosure of a record would frustrate an investigation, disagreed and warned of the dangers associated with refusing to release records outright because of ongoing investigations.

“Equating ‘ongoing investigation’ with ‘frustration exception,’ without more, is conclusory, and is not sufficient to overcome (the Uniform Information Practices Act’s) requirements of an individualized analysis,” Crabtree wrote in his preliminary ruling. “Equating the two would allow the exemption to swallow the rule, at least in any matter involving a government investigation.”

Matthew Dvonch, special counsel to the prosecuting attorney, said that Alm’s office will not be appealing the ruling.

National Practices

Laws across the country vary when it comes to the release of body-worn camera footage.

In New Jersey and South Carolina, the release of footage is permitted to people involved in the recordings or their attorneys. In New Jersey, the release of body-worn camera footage is permitted in situations where the public interest outweighs the need for confidentiality. Maryland allows footage to be released under the public information act.

In New Mexico, the law allows for the release of footage, but recordings can be withheld if they depict confidential information or identify people accused of a crime who have not been charged.

In Hawaii, both the Maui and Hawaii county police departments determine whether to release body-worn camera footage on a case-by-case basis at the discretion of the chiefs of police. In Kauai, all requests for body-worn camera footage will be accepted and processed in accordance with federal, state and local laws.

The Honolulu Police Department’s new policy is markedly different and notably more strict when it comes to the release of footage.

“I find it troubling because how long will they consider the investigation to be pending and when will the public know that it is not pending,” Josh Wisch, executive director of the American Civil Liberties Union, said.

“Unfortunately, HPD does not have a good record of transparency. We know just from the history of HPD hiding misconduct records that they have a tendency to stall these things.”

Previously, the Honolulu Police Department had concluded that body-worn camera footage can be released without negatively impacting an investigation. At the May 5 Honolulu Police Commission meeting, Acting Deputy Chief Darren Chun said that redactions can be applied that would not taint an investigation.

These redactions were used when the Honolulu Police Department released clips of body camera footage showing the moments before officers shot and killed Lindani Myeni.

The heavily redacted footage was released days after Myeni was shot to death on April 14 and showed Myeni ignoring commands to get on the ground outside a house he entered. Officers were later seen in the footage using a stun gun on Myeni, but the gun either malfunctioned or was ineffective.

Two months later, James Bickerton, an attorney representing Myeni’s widow, Lindsay, obtained and released surveillance video from a Ring doorbell security camera, as well as new, less-redacted body-worn camera footage — despite attempts by attorneys for the City and County of Honolulu to block its release until the investigation was completed.

The video painted a new picture of the fatal encounter and showed Myeni walking away from the home and apologizing before being shot four times.

“HPD had already selectively released footage, so this idea of tainting the jury pool, that ship has sailed because the police had already released footage that, presumably, they thought benefited them,” Wisch said in regards to the new policy.

“That’s one of my first reasons for skepticism. Even if they say they aren’t going to be releasing any (footage), which I think is of questionable legality per the judge’s preliminary ruling, I’m still skeptical that some of the footage that they find helpful wouldn’t find its way out because that has happened in the past.”