Government accountability scores a victory at Legislature

It was a victory for government accountability and transparency when the Hawaii Legislature approved a bill authorizing the disclosure to lawmakers of the identities of police officers suspended or fired for misconduct.

Earlier that same day, Monday, July 5, 2020, University of Hawaii communications professor Gerald Kato had discussed the bill, House Bill 285 on Keli’i Akina’s “Hawaii Together program, seen biweekly on the online ThinkTech Hawaii network. Kato and First Amendment attorney Jeffrey Portnoy had written a commentary about the issue in June for the Honolulu Star-Advertiser.

Under current law, Hawaii’s four county police departments do not typically explain fully why officers are suspended or fired. That lack of transparency was allowed under a 1995 exemption to the state’s Uniform Information Practices Act, which otherwise applies to all government employees. Assuming HB 285 is signed by the governor, Hawaii police will continue to be exempt until Dec. 31, 2021, after the state law enforcement standards board has finalized its standards and certification process.

Now if we can only get Honolulu Police Chief Susan Ballard to explain why she denies conceal carry permits to virtually all individuals who would seem to qualify. Asked about that matter by Akina, Grassroot Institute of Hawaii president, Kato responded: “Unless there is some compelling reason not to disclose the information, I think the information should be disclosable. … We’re the taxpayers. We pay for the operation. We should know what’s being done in our name.”

A transcript of the interview is below:

Keli‘i Akina and Gerald Kato
on “Hawaii Together,” ThinkTech Hawaii
July 6, 2020

Topic: “Should police misconduct records be made public?”

Keli’i Akina: Aloha, everyone. Welcome to “Hawaii Together” on ThinkTech Hawaii broadcast network. I’m Keli’i Akina, your host. I’m delighted today to have a guest who is an expert in watching the political scene in Hawaii, writing about it, and now, teaching students how to be great journalists. I’ll introduce him in a moment. You must be completely cut off from the news if you’ve not heard the name George Floyd in the last many weeks. This has been one of the most significant issues broadcast in the news media across the nation and indeed, the world.

What’s at stake here is whether our police conduct is something we are proud of or something we need to change, whether what took place with George Floyd is representative of what takes place every day in police departments across the nation or not. Someone who has studied this very carefully has written on it recently in a newspaper op-ed, and I was very impressed with that. Jeff Portnoy, an attorney, teamed up with Gerald Kato, a professor at the University of Hawaii, and wrote a wonderful little op-ed.

I’d like to talk to him about that, because at heart is the question: Should records of police misconduct be made public? There’s a bill in our Legislature dealing with that. Gerald Kato — you may know him from his years as a journalist and as an interviewer and broadcaster. He also interviewed in political debates. You may have seen him doing that as well. He is now an associate professor in the School of Communications at the University of Hawaiʻi. I welcome him to the program. Gerald, welcome to the program.

Gerald Kato: Thank you, Keli’i. Thank you for inviting me.

Akina: Well, delighted to have you here. You spent so many years on the other side of the microphone doing the interviews, and I hope I can live up a little bit to your skill in that. But now, you’re on the other side as the interviewee. How do you feel about that switch?

Kato: I always feel a little uncomfortable because I know how it is to be the interviewer and ask the tough questions, and put the interviewee — make him a little uncomfortable. I hope I can answer some of your questions, though, with some finesse.

Akina: You’re not only a career journalist, you’re also a teacher now. You’re teaching future journalists a little bit about the craft and the trade. What’s on your heart to pass on to the next generation of journalists?

Kato: Journalism is in a difficult situation now. It is a time when we need more and better journalism, but it’s also a time when we see local news outlets dying. There are just news deserts. We’ve seen the economic impact of COVID-19, and even before that, affecting newspapers. The Star-Advertiser laid off people and were expected to lay off even more people. That amounts to less news here, less news in other communities where newspapers have just gone out of business or have basically surrendered the news franchise at a time when we need more, better, more in-depth local news. I’m proud of the fact that I was a newspaperman. I think every community needs a strong newspaper.

Akina: I’m going to go off on the side, on a little bit of a tangent here because I’ve got you here today so I can ask you: Do you think that the decline of the newspaper industry is so much about the decline of news and reporting as it is about switching media from print media to digital?

Kato: It’s a very complex situation because newspapers were having problems even when I worked as a newspaperman back in the ’60s and ’70s. But certainly, new technologies have really taken over in a way that even I never thought was possible. When I was a young man, I thought, “How could a community live without a newspaper?” The newspaper was a vital part of any community, and it’s proven not necessarily to be true because I think people think that, “Well, we can get the news from new technology, or it’s not that really important to me.” I really hope that in the advent of this pandemic that people think about that. New technologies can provide you with a lot of essential information, but you always need a strong journalistic presence, a newspaper, magazine, to provide the public with essential information about what’s going on.

Akina: There certainly has been a strong presence of media, whether it’s televised or digital or print media over the last several months with the two leading stories, George Floyd and the conduct of police, and the other story, which is the entire coronavirus pandemic. 

What do you think the quality of reporting has been? You’ve observed newspaper and media reporting for decades, are we at an all-time high, an all-time low? [laughs]

Kato: Let me speak to the coronavirus first, that some of the reporting on the coronavirus has just been excellent. I was reading a story in The New York Times, which has devoted a lot of time and effort to this, and they have done some really first-rate, in-depth journalism about the virus, the spread of the virus. They had done it with maps and graphics, everything you need to know about the virus, both here and abroad. To that extent, The New York Times, obviously, is not necessarily reflective of every newspaper in this country, but certainly a lot of newspapers, a lot of news organizations, have done an excellent job in covering the virus.

Akina: Let’s narrow this down to our topic at hand today. Let me ask you the same question with reference to the coverage of the death of George Floyd. How do you think media has done in terms of presenting facts to the American public dispassionately and covering the phenomenon of responses to the death of George Floyd?

Kato: I think the media have — one of the really unfortunate, one of the sad things about all of this is that it took the death of George Floyd to really touch everyone’s conscience about what’s going on in America in terms of policing. One of the reasons people were so outraged was that eight-and-a-half-, nine-minute video taken by a passer-by of what was happening. It’s one of the really good things about new technology, the very positive things in the sense that citizens can take action. They can be the first line, the witnesses, if you will, to a news event and can be the catalyst for moving news forward.

Now, as far as the news, I don’t think anybody expected what happened next, the matter to take hold, to take hold quickly, and to just spread. For the most part, news outlets around the country have done a fairly decent job of covering what’s been happening on a daily basis. But one of the things — and I’ve been thinking about this a lot — that, as news organizations, we’re shocked by all of this police misconduct that’s going on, and shocked into realizing that we need greater reform.

Akina: Let me ask you about that. You refer to all of this police misconduct going on. It reminds me, in our conversation about media here, of the old MGM motto, ars gratia artis. In other words, does art reflect life or does life reflect art? It’s kind of symbiotic here. In a sense, do you think that it’s possible that the media has portrayed the presence of police conduct in our country in such a way that it has inflated our sense of the extent to which there is police misconduct?

Kato: Police misconduct has long existed, though. I don’t think people should be surprised about police misconduct. You can go back — I’m old enough to remember the so-called police riot in Chicago in 1968. The police just went wild. We can go into whether they were justified or not, but was there really justification for, I think, Mike Wallace, who was with CBS News at the time, got punched in the face by a cop? Cops were rounding up journalists, who were clearly identified as journalists, and they didn’t care — arrest them. You see that action still going on even today, where police are assaulting journalists who are doing their job. The point I’m trying to make here is that police misconduct is not something new. It’s been here. It’s been with us for a long time.

Akina: Yes.

Kato: Go ahead.

Akina: Indeed, and you have been an observer of that. Now, let’s go to the op-ed you wrote. Last month, you and attorney Jeff Portnoy, whom I’ve had on the show many times and is a friend of anyone who defends the First Amendment, you both wrote a commentary in the Honolulu Star-Advertiser urging that the records of police misconduct should be made public. 

In fact, there is a bill that you wrote about, House Bill 285. What prompted you to write this? What did you hope to achieve in your op-ed?

Kato: Again, this issue of police misconduct is not something that just happened. Jeff and I have been involved in the issue since the early ’90s. This is the result of students from the Society of Professional Journalists at the University of Hawaiʻi Chapter invoking their rights under the law and asking for information about police officers who had been disciplined by the police department. Now, the law clearly provided that this information was subject to disclosure.

Akina: [You recently co-wrote a commentary for the Honolulu Star-Adveriser] about whether the Legislature should let the public see police misconduct records. … Want to give our viewers a quick summary of your op-ed?

Kato: Sure. In the early ’90s, my students requested information about police misconduct from the Honolulu Police Department as they were entitled to under the law. There was great resistance from the Honolulu Police Department and the SHOPO, the union representing the police officers. They did not want the release of any information involving police officers, and this prompted a really big fight. Some may recall that there was a court hearing once at the Circuit Court building where police officers literally surrounded the building in protest against this request that we had made to the police department, to oppose the request.

In any case, ultimately, the Supreme Court of Hawaii upheld the students and their request for the information. Two major points: The Supreme Court says that this information is not protected by the Hawaii Constitution’s right of privacy, and in light of the fact that the state law provided that the information should be released, SHOPO could not invoke a clause in its contract saying that personal information was private to keep it secret.

SHOPO’s response to this was to go to the Legislature and change law. SHOPO got an exemption from the law about release of information, and police officers were the only group of public workers that were excluded from the requirement that information about disciplinary actions being released as part of the public information law here. They claimed exclusive — “We’re special. We’re a special group, you shouldn’t release information about us.” And the legislature went along with this. In the 1995 session, they enacted a bill that carved an exemption out for SHOPO. 

Now, we come to 2020, times have changed. The Legislature, in effect, has a bill that would bring the police officers back into the public worker fold, so to speak. The police officers would be subject to the same disclosure laws that everybody, every other public employee, including myself, are subject to.

Akina: Now, there’s a bill, House Bill 285, that could achieve your vision of what should take place in our society. What’s going on with that bill?

Kato: The bill, as I understand it, is up for final decision-making by the House and Senate today. It may be passing, as we speak, I hope. I understand that some members of SHOPO were present to protest the bill at the Legislature this morning. But I remain hopeful that the bill will be enacted as a minimum, and I described this as a minimum step towards —

Akina: Its starting point.

Kato:  — police reform and oversight. We need greater accountability by the police, we need greater transparency, and this is a minimum requirement. I mean, I don’t think it should stop here.

Akina: Well, a lot of times, people talk about Hawaii as being different from the mainland. We have the Aloha Spirit. I contrast some of those scenes during the coronavirus lockdown, where people were protesting and rioting in the streets and pictures of people in Hawaii, of people just glad to be able to take a walk at Kapiʻolani Park or on the beach, and they looked so different.

Our police chief, for example, Susan Ballard, has gone public herself with comments that differ from yours, to the effect that the call for greater sunshine is unnecessary in terms of reporting police misconduct, and that it may be a knee-jerk reaction to what’s been happening on the mainland. She, of course, was referring to protests and riots that occurred after the killing of George Floyd. What do you think about this legislation in terms of being a knee-jerk reaction?

Kato: Well, it’s not a knee-jerk reaction because this matter has been before the Legislature for a long time. You think back that our case, the students’ case, go back 25, even more than 25 years. We started this in the early ’90s. Even then, the Honolulu Police Department — I don’t have any doubt, there are lots of good people there — but there are lots of problems as well.

I don’t need to go through the litany of things that have occurred since I was a journalist here. There have been civil rights investigations of the department. There have been instances where the department has hired back people that strike the fire. There’s been scandals involving the police chief. We can make a whole list of things. It’s little to ask of any police department, this or any other police department, to be fully transparent in terms of its dealings with the public. We should expect that the Honolulu Police Department or any police department in the state are professionals, and they act that way and that they take action when necessary to maintain that professionalism.

Akina: Gerald, would you say that more openness with public records at HPD could have influenced the outcome of the recent scandal with its former police chief, which you mentioned?

Kato: I’m not prepared to say that definitively, but sure. I think more openness and transparency by the Honolulu Police Department would be a helpful and useful component. I have a lot of respect for the police. Let me put it to you this way: I have a lot of respect for the police. When I was a young reporter at the Honolulu Advertiser, everybody started their career covering the police department. You did the police beat for about a year or so.

I’m very familiar with the police department and how it operates. I have great respect for people over there. But on the other hand, police departments here and elsewhere tend to see themselves as paramilitary organizations, and as such, anything and everything we do is secret, that you let the public know what I tell you they should know. I don’t think that’s a very good policy.

Akina: This cultural mindset might very well have contributed to the lack of openness.

Kato: I’m sure it did.

Akina: Overall, why do you think it’s been so hard to achieve more openness at our law enforcement agencies? What do you think the major stumbling blocks have been?

Kato: I think because of the nature, the culture of law enforcement, they are something of a … or see themselves as … something of a paramilitary group, and much like the military: “We can’t tell you because it’s secret. What we do is secret.” The culture builds up that, “Well, we’re doing stuff on your behalf. Just don’t ask us.” I think, too often, the public gets complacent about this and say, “Well, take care of things. You take care of things and don’t let us know what you’re doing, but take care of things.”

Obviously, that’s not a very good policy. The public should and must know more about what’s going on in its police department. It instills greater public confidence in the police department if the police department is far more forthcoming than it is. 

By the way, let me say one more thing: Too often, police unions have proven to be obstacles to reform. Now, I am a big supporter of unions, but I think unions should try to be at the forefront of reforming the system so that we professionalize the operation, not as a mechanism for protecting bad officers.

Akina: Transparency, obviously, needs to apply to issues of police misconduct, as you say, but would you say it also needs to apply to procedure? For example, a couple of years ago, the HPD chief refused to tell the police commission what the specific guidelines HPD used to deny concealed carry permits, even if, otherwise, the applicants seemed qualified. Is this a form of secrecy you’re concerned about also?

Kato: Sure. Unless there is some compelling reason not to disclose the information, I think the information should be disclosable. I don’t see any kind of public safety problem if the information is disclosed, and if there’s not, why not release it? Oftentimes, I think the police mentality is that the burden is on the public to prove that the information should be released. I think the burden is on the government agency, in this case, the police department, to make a case that the information should not be released. What’s the compelling reason for not releasing the information? We’re the taxpayers. We pay for the operation. We should know how the operation is, or what’s being done in our name.

Akina: Very good. Gerald, that’s a great note to end on. I want to thank you for your service to the public, your service in promoting transparency and accountability in our institutions, and appreciate you being on the show today.

Kato: Thank you very much, Keli’i. It’s an honor to be here.

Akina: Delighted to have you, Gerald. My guest today has been associate professor Gerald Kato of the University of Hawai’i School of Communications. You can reach him there. I’m Keli’i Akina on ThinkTech Hawaii’s Hawaii Together. We’ll see you next time. Aloha.


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