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The Honolulu Advertiser
Posted on: Wednesday, October 8, 2003

ACLU needn't name accusers at youth facility

By David Waite
Advertiser Courts Writer

A former American Civil Liberties Union official will have to answer questions today about his investigation into alleged wrongdoing by guards at the Hawai'i Youth Correctional Facility but won't have to name those who provided information.

The United Public Workers union, which represents youth corrections officers at the Windward O'ahu facility, had hoped to force former ACLU-Hawai'i Legal Director Brent White to name the youthful offenders who accused guards when interviewed in June and July by White or his associates.

But Hawai'i Labor Relations Board Chairman Brian Nakamura said he and board member Kathleen Racuya-Markrich believe that the board's priority should be to protect the "identity and the safety" of the youths interviewed.

Nakamura said White won't have to name those who accused the guards but will have to provide other information as long as it does not violate the "attorney-client privilege" between the ACLU and the youths. The board issued its decision yesterday.

White's findings included reports of rape, brutality and crowded conditions. Gov. Linda Lingle in late August reassigned the facility's administrator and a corrections specialist pending a state criminal investigation in response to the ACLU report.

On Sept. 16, guard Li'a "Oli" Olione was indicted by an O'ahu grand jury on 10 counts, including sexual assault, kidnapping, terroristic threatening, extortion and criminal solicitation. He is accused of raping a girl in the facility on June 14 and 15. The girl is between 14 and 16 years old, the indictment said.

UPW attorney Herbert Takahashi told the labor board yesterday that the accused guards have a right under the U.S. Constitution to know who their accusers are.

Takahashi said the ACLU waived the attorney-client privilege by giving Lingle a copy of White's report and by posting a copy of it on the Internet.

But ACLU attorney Jeff Harris told the board that White should not be made to answer questions because the underlying complaint brought by the UPW to the labor board is that the state engaged in "prohibited practices" by permitting the ACLU to interview wards of the state at the youth facility. Harris said there is "no reasonable relationship" between what White found during his investigation and the question of whether the state erred by authorizing it.

In addition, Harris said the youths interviewed during the ACLU investigation are "potential clients" and, therefore, what they told investigators is protected under attorney-client privilege.

Notes taken by White and ACLU paralegals are considered "work product" that will likely be used if the ACLU sues the state over conditions at the facility and are also privileged information, Harris said.

But in order for the ACLU to have a legitimate attorney-client relationship with the youths interviewed, Takahashi said, their parents, legal guardians or Family Court would have had to approve the relationship. He said minors are not capable of entering into such a relationship by themselves.

White is to appear at the labor board at 9:30 a.m. today.

Reach David Waite at 525-8030 or at dwaite@honoluluadvertiser.com.