The FBI Continues To Stall On Releasing Hawaii Lawmakers’ Bribery Investigations
Civil Beat has been trying to get the investigative files on public officials convicted of bribery for more than a year.
Former state lawmakers Ty Cullen and J. Kalani English pleaded guilty more than two years ago to taking cash bribes in exchange for swaying legislation to favor Honolulu businessman Milton Choy, who owned a wastewater disposal company.
Cullen and English have served their sentences and been released from prison. Choy died in prison in June.
You’d think there would be no more reason to keep the public from seeing exactly what happened and how the investigation was handled in what’s arguably the most consequential public corruption case in this state in decades. There’s a lot of public interest in being able to examine how this situation developed and what might be done to guard against it in the future.
But the FBI and the U.S. Attorney’s Office continue to insist in court filings that the investigation into Cullen and English must remain secret because going public could compromise ongoing investigations.
I’m sorry, but that is what federal prosecutors have been saying for a long time about their spinoff investigations, and yet no more cases have emerged, especially not any relating to corruption of lawmakers or county officials or even lobbyists. And records filed in the federal lawsuit Civil Beat brought in May 2023 seeking to force the government to turn over the investigation suggest they’ve been doing nothing but stalling in our case.
So maybe in others too?
Here’s how our lawsuit has played out and where we’re at now.
But first, a recap.
Cullen, a former veteran state House member from Oahu, and English, a former longtime state senator from Maui, were caught up in an FBI sting involving Choy, a Honolulu businessman, who gave the lawmakers tens of thousand of dollars in cash, casino chips and other items of value in exchange for their help with legislation that would benefit his business.
These cozy relationships appear to date back as far as 2015 with Cullen and nearly that far with English.
Meanwhile, Choy was also giving cash — at least $2 million as it turned out — to a Maui County environmental official named Steven Stant for favorable county contracts for his business. Stant also ultimately pleaded guilty and is still in federal prison.
It’s with the Maui bribes where it appears the FBI first got onto Choy and turned him into a federal informant. He had been cooperating with the FBI for a number of years before Cullen and English were arrested in 2022 and their arrests were announced publicly in February of that year.
A few months later, Civil Beat reporter Blaze Lovell put in federal Freedom of Information Act requests for the investigative files on Cullen and English. They’d pleaded guilty at that point but hadn’t been sentenced.
The FBI denied the initial requests on the grounds that we hadn’t demonstrated sufficient public interest in the case. We appealed, they rejected the appeal, the lawmakers got sentenced and went away to prison. We wrote new FOIAs, they were denied, we appealed and the appeals were again turned down.
We asked the Public First Law Center to take on the case. Our lawsuit was filed in May 2023.
Very little happened other than the usual early activity in a civil lawsuit and some meetings between Public First executive director Brian Black and Dana Barbata, the assistant U.S. attorney who is handling the case for the FBI. The FBI insisted it was reviewing all the records and preparing an index of the material supposedly so we could all see what could be legitimately withheld.
The government had until May 2024 to justify which records records should be withheld; trial had been set for October.
In early May — a year after we filed the lawsuit — we submitted more FOIAs for the investigative files for Choy, Stant and Wilfredo Savella, a wastewater maintenance mechanic working for Maui County who was kind of a minor player but had pleaded guilty to taking more than $40,000 in bribes from Choy.
Denied, appealed, denied. Unfortunately, they are not part of this lawsuit and we’ll probably have to do this whole thing over again at some point.
Meanwhile, on May 20, just before the feds’ deadline to finish its review, the FBI filed a motion for continuance saying it needed more time to review the records. Like either two more years or four more years, depending on which type of review it actually decided to do — one where they look at records on the basis of privacy or one where they review for privacy along with all other exemptions that could apply.
The FBI declared it could only process 500 pages a month. And given the number of pages in the files that would mean two to four more years for the review.
Magistrate Judge Wes Reber Porter granted a continuance that moved the trial to 2025. He did that without even letting Civil Beat respond to the motion for continuance.
We kicked that up a level and U.S. District Court Judge Susan Oki Mollway got the case. She has proven to be less accepting of the government’s continued excuses, as seen in a series of short orders she’s issued. She’s not messing around.
Although she agreed to let the U.S. attorney have until March or April of 2025 to produce its record review, she said the government had not justified a two- or four-year delay.
On June 21, she ordered the FBI to give Civil Beat a status report by June 28 that needed to include the number of documents and number of pages that are involved in the Cullen and English requests. The FBI needed to provide a date the review would be done, she said, and it needed to be sufficiently in advance of the trial date.
“The status report shall explain why this review and indexing is limited to 500 pages per month when there are two separate requests pertaining to two separate investigations,” Mollway wrote.
On June 27, the government told Mollway: No can do. It wanted another three weeks, Barbata said, because the information “requires review and approval from multiple individuals.”
Mollway rejected that request noting that not only had the FOIA case been pending for more than a year, but the government had plenty of time to get “whatever approvals it needs to provide the information responsive to this court’s order.”
So the FBI submitted a response only to the judge, not to Civil Beat, that included a declaration by the FBI section chief who oversees records. Mollway was clearly flabbergasted and ordered the FBI to provide detailed justification for why the information was being withheld from Civil Beat.
Moreover, she questioned the government’s secrecy and noted that the new declaration was inconsistent with what it had been saying previously.
“Now, more than a year later, the FBI should have made progress, and, if it has not, then its delay is too long to be excused by reference to hundreds of other cases.” — U.S. District Court Judge Susan Oki Mollway
“The FBI has already represented that it will take 23 months to review and index the documents at a rate of 500 pages per month. That means there are at least 11,500 pages at issue. In seeking 23 months, the FBI has already signaled that this case involved thousands of documents. Why must the precise number remain secret?”
She gave them another week, until July 8, to provide what she’d asked for. Instead, on July 8 she got another request for an extension.
“This is highly problematic,” Mollway wrote in yet another order, chastising the federal attorneys for trying to blame their stalling on time zone differences, planned vacations and trying to manage hundreds of other cases.
“Now, more than a year later, the FBI should have made progress, and, if it has not, then its delay is too long to be excused by reference to hundreds of other cases.”
Mollway eventually ordered the FBI to turn over to Civil Beat the declaration and the justifications for why the records review was taking so long.
And as it turns out, the FBI hadn’t even started the review. After all that time and after all the assurances Barbata, the assistant U.S. attorney, was giving to Black, the law center attorney.
“Processing has not begun,” the FBI finally admitted in its July 2 filing, “as the FBI does not know which processing schedule to follow.”
As Black noted in a recent motion objecting to the FBI’s latest request for a “bifurcated review,” “Despite affirmative representations for more than a year that the FBI was conducting what it variously referred to as a Vaughn or Maydak review, the FBI declared that it had done nothing.”
Last week, Porter, the magistrate judge, denied the request for what would have been a much more tedious and complicated review of records. And he ordered the U.S. attorney to provide weekly status reports to Civil Beat starting this month.
The next deadline for the government to provide some sort of response is now November.
Civil Beat opinion writers are closely following efforts to bring more transparency and accountability to state and local government — at the Legislature, the county level and in the media. Help us by sending ideas and anecdotes to sunshine@civilbeat.org.
We’re now thinking there are about 30,000 pages of records and audio and video material that we are eager to see.
There has really been no ability for the public to see what these two elected officials actually did when they violated the public trust. Because they pleaded guilty, there has been no trial and no evidence made public.
The investigative files are the only records that exist of not only what these two did but also how the government handled the case. There’s lots of scrutiny to be done here.
We think that is vitally important, especially in order to evaluate if there are any changes needed in how our legislative process works. It’s hard to imagine how you stop unscrupulous officials from taking envelopes of cash in the men’s bathroom of a local restaurant, but we just won’t know until we see the files.
Read the FBI’s reasoning about why it takes officials so long to review records:
