Quest for unedited copy of police tape runs into red tape
By Jim Dooley
Advertiser Staff Writer
When private investigator Elizabeth Freitas asked the Kaua'i Police Department for a police 911 tape recorded on the day a 17-month-old child was mauled to death by a neighbor's dog, Freitas said she was given a copy with an unexplained gap in it.
Public records are generally open, but officials can withhold others. Records that the law and court rulings have placed out of bounds for the public include: • Most disciplinary records of government employees. Discipline records are available only after all disciplinary proceedings have been completed, including grievance proceedings, which can be long and drawn-out affairs. • Specific salary numbers for state and county workers. The public can only obtain a range of pay for civil servants, not the precise salary or overtime pay. • Certain personal information, such as Social Security numbers and medical records. • Law enforcement records that require confidentiality. Two branches of government in Hawai'i are excluded from the state's open-records law — the Judiciary and the Legislature. Administrative records of the Judiciary, such as contracts awarded, number of employees and other money-spending information, are subject to the open-records law but court records are not. The courts have developed their own rules on what legal matters are open and closed to the public. The Legislature excluded itself from the open-records law although, like the Judiciary, most money-spending administrative records are covered by the law and open to the public.
"I've been told by department employees that the police erased an inappropriate racial comment made in a conversation between county employees," said Freitas, a former police officer and wife and business partner of former Kaua'i police chief George Freitas.
What's open, what's not
After Freitas asked the state Office of Information Practices for help in getting an unedited copy of the tape, she and OIP were told by Kaua'i police that the copy sent to her had not been edited. Police also said she should not have gotten it in the first place because it is evidence in an ongoing investigation.
"You can tell it's been edited," said Freitas, who's working for an attorney hired by the dead child's parents. "There's a gap of several seconds in a conversation between these two employees and when it resumes, they're talking about something else."
Assistant Police Chief Gordon Isoda, one of those talking on the tape and now head of the KPD Administrative Bureau, declined comment on the matter last week. "I haven't heard the tape," he said.
Freitas' husband was Kaua'i police chief for eight years, retiring in mid-2003 after a series of legal and personnel disputes involving the department and the county. He was suspended for five months in 2001 but reinstated after an investigation resulted in no significant findings of wrongdoing.
Elizabeth Freitas said she doesn't know if the department's responses to her records requests have been colored by personal or political motivations. But she said the law is the law and public records should be released regardless of who is requesting them.
Her quest for the tape is one example of how Hawai'i citizens' right to know runs up against a reluctance to inform on the part of public officials.
The state open-records law says almost all government records should be open to the public, but it carves out several exceptions that relate primarily to privacy and law enforcement confidentiality.
Sometimes, records that are otherwise public contain information that should be confidential, such as an individual's Social Security number. When that happens, the government agency is advised to remove the confidential information and release the rest of the record.
That's how it's supposed to work, but sometimes it doesn't — as Elizabeth Freitas knows.
The Office of Information Practices, the agency that advises both the public and officials about what records are open or confidential, told Kaua'i police that OIP doesn't have the authority to conduct its own investigation of the tape and would have to take the department's word that the tape was unedited.
But OIP did tell the police that they had to give Freitas another copy of the unedited tape.
Freitas never received another copy. She wrote the police a letter on Sept. 22 saying, "It has become apparent that the Police Department believes it has the right to completely disregard this legal requirement and the directions of the Office of Information Practices."
The department again did not respond, Freitas said.
Hawai'i's open-records law states that Freitas and the parents she represents have the right to seek an expedited court hearing about the dispute. If they win, the police would have to pay all their legal bills.
But Freitas said the family's attorney "doesn't want to put the family through a court fight."
Meanwhile, the police investigation of the death of 17-month-old Trusten Liddle has been completed and forwarded to the Kaua'i County Prosecutor's Office.
A decision on whether to proceed with criminal charges in the case is still pending.
Unrelated to the dog-mauling case, Freitas made another request last year to the Kaua'i Police Department. She asked for a police report of a closed investigation and was told it was not public.
The OIP has repeatedly said just the opposite, that closed-case police reports must be released to the public as long as private information such as a victim's home address is first removed.
Deputy County Attorney Margaret Sueoka told the police last October that "police reports are not subject to 92F (a reference to the state open-records law) disclosure. Ms. Freitas is entitled to police blotter info only."
Sueoka said last week she believes she wrote that because she was told the case was open and not closed. According to Assistant Chief Isoda, "There may have been a miscommunication between the department and Margaret."
Yesterday, Freitas said the police gave her the report after The Advertiser raised questions about the unavailability of the record.
"Thanks for your help," Freitas said.
Reach Jim Dooley at 535-2447 or jdooley@honoluluadvertiser.com.
