http OIP Opinion Letters Opinion 92-19

8/4/2019 http www.state.hi.us OIP Opinion Letters Opinion 92-19

1/8

KAT:AN

ATTORNEY GENERAL FAX (808) 58 6-141 2STATE OF HAWAIIDEPARTMENT OF THE ATTORNEY GENERAL

OFFICE OF INFORMATION PRACTICES426 QUEEN STREET. ROOM 201HONOLULU, HAWAII 9681-29Q4

October 7, 1992

Honorable Kathleen N. A. WatanabeCounty Atto rn eyCounty of Kauai4396 Rice Street, Suit e 202Lih ue, Hawaii 96766A tten tion : Galen T. NakamuraDeputy County Atto rney

Re: D isclosure of the Identity of a Coun ty Employee Who isth e Subje c t of a Crim in al Investigation

This is in rep ly to a letter to the Offic e of In fo rm atio nPractices (OIP) from Deputy County A ttorney Galen T. Nakamura,requesting an adv isory opinion from th e OIP concernin g wheth er,under the Uniform In fo rm atio n Practic es Act (M odif ied), chapte r92F, Haw aii Revised Statutes (UIPA), the county should publiclydisclose, upon request, the name of a suspect in a crim inalinvestigation when the suspect has not been arrested, charged, orindicted.ISSUE PRESENTED

Whether, under the UIPA , th e Kauai Polic e Departm ent (KPD )should , upon request, disclose th e identity of a suspectcurrently being investigated fo r having committed a crim in a loffense, when that person has not been arrested, charged, orindicted fo r having committe d the offense.BRIE? .NSWER

The UIPA provid es that an ind iv id ual has a significantprivacy interest in [i)nform atio n identifiable as part of aninvestigation in to a possible violation of crim inal law, exceptto the exten t that disclosure is necessary to prosecute theviolation or to continue th e investigation. Haw. Rev. Stat. 92F-l4 (b) (2) (Supp. 1991). Court decis ions under the federalFreedom of Inform ation Act, 5 U.S .C . 552 (1988) (FOIA), a ls oindicate that an in d iv idual possesses a substantial priv acyOIl Op. Ltr. No. 92-19

www.pixelpatriot.blogspot.com


2/8

Honorab le Kath le en N. A. WatanabeOcto ber 7, 1992Pag e 2

interest in in form ation that identifies th e indiv id ual as th etarget of a crim inal law enfo rc em ent investigation.

Based upon an exam in ation of federal court decisions underthe FOIA, we belie ve that under th e UIPAs public interestbala ncin g test, sectio n 92F14(a), Hawaii Revised Statutes, anindividuals significant personal priv acy interest in in form ationidentifying the individ ual as a suspect in a crim inalinvestigation is not outw eighe d by the public interest indisclosure.

Specifically, in th e fac ts of this particular case, weconclu de that, unless the KPDs d isclosure of th e suspectsidentity is necessary to prosecute th e violation or to continuethe investigation, or un less for oth er reasons th ere is a greaterpub lic interest in d isclosu re , the KPDs d is closure of thisin fo rm atio n wou ld constitute a clearly unwarranted invasio n ofpersonal p riv acy . Haw. Rev. S ta t. 92F-l3 (l ) (Supp. 1991).

In contrast, once an in dividual has been arreste d , charg ed,or ind ic ted , we conclude that the d isclo sure of a suspectsidentity would not constitute a clearly unwarranted invasio n ofpersonal pri vacy under th e UIPA. Likewise , where the disclosureof a suspects identity is neces sary to contin ue a crim inalin vestigatio n , to apprehend the suspect, or to prosecute theviolation, we find that no clearly unwarranted invasion ofpersonal priv acy would result from disclosure. See Haw. Rev.Stat. 92F14(b)(2) (Supp. 1991).

Because no exceptional circumstances ex ist in the factspre sented to the OIP in this case, and becau se dis closure is not,at this date, necessary to pro secute th e vio lation or to continuethe investi ga tio n , we conclude that the KPD should not d is closethe suspects name in order to avoid a clearly unwarrantedin vasion of that individuals privacy.

FACTS

Recently , while on duty, a Kauai County employee wasin volv ed in a traffic accident that resu lted in a fatality. As aresult of the fatality, th e KPD is in vestigating whether th ecounty employee committed any crim inal o ffenses in connectionwith th e traffic accident.

It is th e po licy of the KPD to not publicly disclose acrim in al suspec ts name, until such tim e that th e suspect hasbeen either arrested or charged with a crim inal offense.

01? Op. Ltr . No. 9219



3/8

Honorable Kathleen N. A. WatanabeOctober 7, 1992Page 3

In h is letter to the OIP requesting an advisory opinion,Deputy County Attorney Galen T. Nakamura stated that th e CountyAttorneys Office is currently reviewing th e KPDs policy, andrequests an advisory opinion from th e OIP concerning whether,under th e UIPA, the name of th e county employee currently beinginvestigated for possible criminal violations should be publiclydisclosed upon request .

DtSCUSS IONUnder th e UIPA, all government records must be made

available fo r publ ic inspection and copying, unless one of th eexceptions set forth in section 92F-13, Hawaii Revised Statutes,permits an agency to withhold access to th o se r ec or ds . See Haw.Rev. Stat. 92Fll(b) (Supp. 1991) ([e]xcept as provided insection 92Fl3, each agency upon request by any person shall makegovernment records available fo r in sp ec tio n and copying).

Under section 92F l3(l), Hawaii Revised Statutes, agenciesare not required to disclose (g]overnment records which, ifdisclosed, would constitute a clearly unwarranted invasion ofpersonal privacy. The UIPA further provides that [djisclosureof a government record shall not constitute a clearly unwarrantedinvasion of personal privacy if th e public interest in disclosureoutweighs th e privacy interests of th e individual. Haw. Rev.Stat. 92F14(a) (Supp. 1991).

Under this balancing test, if a privacy interest is notsignificant, a scintilla of public interest in disclosure willpreclude a finding of a clearly unwarranted invasion of personalprivacy. H. Conf. Comm. Rep. No. 11288, 14th Leg. , 1988 Reg.Sess., Haw. H.J. 817, 818 (1988); S. Conf. Comm. Rep. No. 235,1 4th L eg ., 1988 Reg. Sess., Haw. S.J. 689, 670 (1988). Indeed,th e legislative history of th e UIPAs privacy exception indicatesthat th e exception only appl ies if an individuals privacyinterest in a government record is significant. See id .(to]nce a significant privacy interest is found, th e privacyinterest wil l be balanced against th e publ ic interest indisclosure).

In section 92F-14(b), Hawaii Revised Statutes, th eLegislature provided examples of information in which anindividual is deemed to have a significant privacy interest.Subsection (b) of section 92F-14, Hawaii Revised Statutes,provides in pertinent part:

(b) The following are examples of informationin which th e in d iv id u al has a significant privacyinterest:

OlPOp. Ltr. No. 92-19



4/8

Hono rable Kathleen N. A. WatanabeOctober 7, 1992Page 4

(2) Informati on identifiable as part ofan investigation in to a possibleviolation of cr iminal law , exceptto the ex ten t that disc losure isnecessary to pro secute th eviolation or to continue th einvestigation; . .

Haw. Rev. Stat. 92Fl4(b)(2) (Supp. 1991).The ab ove quoted provision was taken verbatim from sect ion

3-102(b ) (2) of the Uniform Info rmation P rac ti ces Code(M ode l Code), adopted by th e National Conference ofCommissioner s on Uniform S ta te Laws , upon which th e UIPA wasmodeled by the Legislature. The commen tary to this Model Codesection mere ly states that it not only identif[ies] in form ationpossessin g a significant privacy interest, but als o identifties]closely related in fo rm atio n which is outs id e th e scope of th epriv acy interest. Model Code 3-201 commentar y at 24 (1981 )(emphasis in original).

Moreove r, federal court decisio ns under the federal Freedomof In form ation Act, 5 U.S .C . 552 (1988) (FOIA) in d ic atethat an agencys d isclosure that a third party has been th esub je c t of a crim in al investigation is likely to constitute anunwarranted invasion of personal privacy. In Baez v. U.S. Deptof Justice, 647 F.2d 1328 (D.C. Cir. 1980), the court held thatthe disclosure of th e names of third persons who had beeninvestigated by th e F .B.I . would constitute an unwarrantedinvasion of priv acy . The court stated:

We think that disclosure of th ese materia ls wouldconstitute an unwarra nted in vasion of the privacy ofthose in dividuals involved . Although neither we northe FBI can anticipate precisely what th e reactio n ofea ch ind iv idual would be if it were revealed to thepublic that th e ind iv id ual had been th e subje ct of anFBI investigation, we may surm ise that many at leastmight be either embarra ssed or experie nce some

1he legislative history of sectio n 92Fl4(b), Hawaii RevisedStatutes, states that case law un der th e [fede ral FOIA) should beconsult ed for additional guidance. S. Stand. Comm. Rep. No. 2580 ,14th Leg., 1988 Reg. Sess., Haw. S .J . 1093 , 1094 (1988) .

OIP Op. Ltr . No. 9219



5/8

Honora ble Kathle en N. A. WatanabeOcto ber 7, 1992Page 5

discom fort from th e d isclo su re of this kind of personalin form ation.Baez , 647 F.2d at 1338.

S im ila rly , in K iraly v. F.B.I., 728 F.2d 273 (6 th C ir .1984), th e court held that th e F .B .I. properly withheld th e nam esof people who were investig ated fo r suspecte d criminal activityor who were oth erw ise mentioned therein, but were not indicted ortried. Like th e court in the Baez case, the court in K iraly ,noted that th e [d]isclosure of su ch inform ation could subject aperson to embarrassment, harassment, and even physical danger.K ir a ly , 728 F.2d at 277..

More recen t federal appell a te court decis io ns under th e FOIAa ls o support a finding that ind iv iduals suspected of crim in alactivity have substantial privacy interests im plicated by thepub lic disclosure of their names in connectio n with a crim inalinvestigation. See Landano v. U.S . Dept of Justice, 956 F.2d422, 426 (3rd C ir . 1992) (suspects . . . have privacy interestsim plic ate d by the release of their names in connection w ith acrim ina l investigation); Nadler v. U.S . Departm ent of Justice955 F.2d 1479 , 1489 (11th C ir. 1992) (the men tion of a personsname in th e contex t of a law enfo rcement investig ati on willengender comment and specu la tio n and carries a sti gm ati z ingconnotation); Safe card Servic es, In c. v. Securities andExch ange Commission, 926 F.2d 1197 (D.C. Cir . 1991) ([tjhere islittle question that d is c lo sin g th e identity of targets of law-enforcement investigations can sub je c t those identified toembarrassment and potentially more serious reputa tional harm1.

Balancing a crim inal investigation suspects significantpriv acy interest in th e fact that th ey are being in vestigate d fo rcrimina l activity again st th e pub lic interest in disclosure undersection 92F-14(a), Haw aii Revise d Statutes, we have previo uslynoted that the publi c interest in d is c losu re under th e UIPA isthe pub li c interest in d is clo sure of [ojfficial inform ation thatsheds light on an agencys perform ance of its statutory purpose,se e OIP Opinion Letter No. 90-7 (Feb. 9, 1990), and inin fo rm ation which sheds light on th e actions of governmentofficials, se e QIP Opinion Lette r No. 9017 (April 24, 1990).

W hi le th e fact that th e person in this case beinginvestigated for possib le crim inal charges is a public emplo yee,and while th e disclosure of this individuals name would to somedegree reveal inform ation about th e acti on of a governmen tofficial, we also observe that this person does not hold amanageri al position, or a position with significant authorityw ithin an agency, suc h that th ere may be more th an some pub li c

OIP Op. Ltr . No. 92 -19



6/8


interest in th e disclosure of th e employees identity. See, e.g.,Stern v. FBI, 737 F.2d 84 , 94 (D.C. Cir. 1984). Court decisionsunder th e FOIA indicate that th e names of individuals that appearin criminal investigation files would virtually never be veryprobat ive of an agencys behavior or performance. SafecardServices , 926 F.2d at 1205. Indeed, th e court held that th edisclosure of such information would serve a significant publicinterest only if there is compelling evidence that th e agency . . is engaged in illegal activity. [cj

Based upon our examination of case law under th e FOIA, andupon section 92F-14(b)(2), Hawaii Revised Statutes, we concludethat th e disclosure of th e fact that an individual has been th esubject of a criminal investigation would general ly constitute aclearly unwarranted invasion of personal privacy. Because thereis no compelling evidence in the facts presented indicating thata government agency is engaged in illegal activity, and becauseit does not appear that disclosure is necessary to continue th einvestigation, we se e no basis to find th e exis tence of a publicinterest in disclosure that would outweigh th e suspects privacyinterest.

However, we wish to note that: (1) once an agency haspubl icly confirmed th e existence of such an investigation becausedisclosure of a suspects identity is necessary to prosecute th eviolation or to continue th e investigation;, or (2) once anarrest has been made, or th e suspect has been charged, there islittle or no privacy interest implicated by th e disclosure of th esuspect s identity. See OIP Op. Ltr. No. 91-4 (March 25, 1991)(access to pol ice arrest lo g is not a clearly unwarrantedinvasion of privacy>.

Finally, it is possible that an agencys disclosure of th eidentity of an individual who is being invest igated fo r allegedcriminal offenses may result in th e frustration of a legi t imategovernment function in situations where th e very fact of acriminal investigations existence is as yet unknown to th esuspect , and that such a disclosure could reasonably be expectedto interfere with enforcement proceedings. However, such isnot th e case in th e facts present here. Specifically, we areinformed that the county employee is aware of th e existence ofthis investigation.

2ee OIP Op. Ltr. No. 91-9 (July 18 , 1991) fo r a discussion ofth e UIPAs protection of [r]ecords or information compiled fo r lawenforcement purposes th e disclosure of which could reasonably beexpected to interfere with enforcement proceedings.

OIP Op. Ltr. No. 92-19



7/8


CONCLUS IONWe conclude that under th e UIPA, an individual has a

significant privacy interest in th e fact that th e individual issuspected of alleged cr iminal activity. In th e absence ofevidence that an agency has been engaged in illegal conduct, orother except ional circumstances that would lead to th e exis tenceof a significant public interest in dis c lo sure , an agencysdisclosure that an in d ividual is suspected of criminal activitywould generally constitute a clearly unwarranted invasion ofpersonal privacy.

Very trul

Hugh R. Jo eStaff Attor y

APPROVED

Kathleen A. CallaghanDirectorHRJ:scWatariabesp

OlPOp. Ltr. No . 9219



8/8

I

I

Iwww.pixelpatriot.blogspot.com

http OIP Opinion Letters Opinion 92-19

Documents

Transcript of http OIP Opinion Letters Opinion 92-19