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The Honolulu Advertiser
Posted on: Thursday, May 18, 2006

Public wins fight to view court files

 •  PDF: See the U.S. Ninth Circuit Court of Appeals ruling

By Jim Dooley
Advertiser Staff Writer

In an endorsement of the public's right to view court records, the 9th U.S. Circuit Court of Appeals yesterday rejected a three-year effort by Honolulu police and the U.S. Justice Department to seal documents alleging wrongdoing in HPD's Criminal Intelligence Unit.

The records are contained in a whistleblower lawsuit filed in 2001 by HPD detective Kenneth Kamakana, who received $650,000 from the city in 2003 to settle the case out of court.

The Advertiser began asking for access to records in the case in 2002 and won a series of favorable rulings from U.S. Magistrate Judge Leslie Kobayashi, but city attorneys, later joined by U.S. Justice Department lawyers, repeatedly appealed those decisions.

William McCorriston, attorney for Kamakana, called the 9th Circuit's unanimous decision "a complete devastation of the city's arguments that these records should be protected" and he predicted that the ruling "is going to be cited for years to come in any case involving efforts by government agencies to cover up allegations of public corruption."

Jeff Portnoy, attorney for The Advertiser, called the opinion "a clear and unequivocal explanation of the public's right to access court records" with "national implications" for the public and news organizations.

"The court without exception rejected every argument made by both the city and the federal government as to why portions of these records should not be disclosed," Portnoy said.

The opinion was written by 9th Circuit Appellate Judge M. Margaret McKeown, who was part of a three-judge panel that heard arguments in the case here in November. Judges Michael Hawkins and Robert Beezer joined in the opinion without dissent.

The opinion lauded Magistrate Kobayashi's "exhausting if not exhaustive" review of thousands of pages of records filed in the Kamakana civil suit and her rulings on which records should be open for public inspection.

In one of those rulings, Kobayashi expanded on the findings of a "special master" who determined that many documents, or parts of documents, should remain confidential.

Allegations in the case, Kobayashi ruled, "raise issues about the conduct of state and federal law enforcement officials, and therefore, the court concludes that the testimony and documents concerning the matter are of significant public concern."

In yesterday's opinion, the court said that the city "seeks to cast this comprehensive review (by Kobayashi) in a negative light by suggesting that the decision to overrule the special master was somehow unfair or unwarranted.

"To the contrary, we embrace the judge's decision to carefully review every document," the opinion said.

And it said government arguments for secrecy were "somewhat tepid and general justifications."

City spokesman Bill Brennan said yesterday the ruling is being reviewed. An outside attorney who represented the city in the case, Jerold Matayoshi, is out of town and "we're awaiting his advice," Brennan said.


City Corporation Counsel Carrie Okinaga has previously disqualified herself from involvement in the case because she was one of Kamakana's attorneys before being named to the city post by Mayor Mufi Hannemann.

Another attorney who represented Kamakana before moving to a government job is Hawai'i Attorney General Mark Bennett.

U.S. Attorney Ed Kubo could not be reached for comment.

Kamakana, a highly decorated officer who specialized in organized crime and narcotics trafficking cases, alleged in the suit that his civil rights were violated when the police department transferred him out of the Criminal Intelligence Unit and investigated him for alleged criminal and administrative wrongdoing after he gave evidence of corruption and misconduct to federal authorities.

He named the department, then-chief Lee Donohue and then-Capt. Milton Olmos, the head of CIU, as defendants in the case. Donohue and Olmos, who have since retired, were dismissed as defendants shortly before the city agreed to settle the case. The city did not admit to wrongdoing in the settlement.

"For Ken, this case was always a matter of principle," McCorriston said yesterday. "There was a brutal pushback against him for blowing the whistle on wrongdoing in the police department."


Portnoy said that the city and federal government can appeal yesterday's decision but added that, given the "unequivocal" language of the opinion, "I think the chances of the Supreme Court granting certiorari (agreeing to hear the case) are less than slim."

How much the city paid in legal fees in the case is unknown, although in late 2003, it was estimated that $1 million in taxpayer funds had been paid before the city's insurance policy kicked in to cover an additional $1 million in legal expenses, plus the $650,000 settlement cost.

"I think the city has wasted enough taxpayers' dollars," Portnoy said. "It would be really sad if they continue this futile jousting at windmills just to keep from the public allegations of wrongdoing at the police department."


McCorriston said, "I think Mayor Hannemann's administration, which inherited this case, should call for a public accounting of all the public money that was spent trying to cover up this mess."

Advertiser editor Saundra Keyes said, "This has been a long fight and an expensive fight for us. But we've stuck with it because the principle involved is so important.

"The ruling means court records that should be open can't be kept secret based on vague assertions by government officials. That's not just a victory for The Advertiser, it's a victory for the public."

Reach Jim Dooley at jdooley@honoluluadvertiser.com.