Electronically Filed Supreme Court SCAP-XX-XXXXXXX 17-SEP-2021 07:57 AM Dkt. 105 OP IN THE SUPREME COURT OF THE STATE OF HAWAI‘I ---o0o--- STATE OF HAWAII ORGANIZATION OF POLICE OFFICERS, exclusive representative for Bargaining Unit 12, Police, Plaintiff-Appellant/Cross-Appellee, vs. CITY AND COUNTY OF HONOLULU, Defendant/Cross-Claim Defendant-Appellee/Cross-Appellee, and HONOLULU CIVIL BEAT, INC., Intervenor-Defendant/Cross-Claimant-Appellee/Cross-Appellant. SCAP-XX-XXXXXXX APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-XX-XXXXXXX; CIV. NO. 18-1-0823-05) SEPTEMBER 17, 2021 RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ., AND CIRCUIT JUDGE CAHILL, IN PLACE OF POLLACK, J., RECUSED OPINION OF THE COURT BY RECKTENWALD, C.J. I. INTRODUCTION The Uniform Information Practices Act (UIPA) promotes government transparency and accountability by requiring state agencies to make their records available for public scrutiny. Hawai‘i Revised Statutes (HRS) § 92F-2 (2012); HRS § 92F-11(a) (2012). However, “[t]he policy of conducting government business as openly as possible must be tempered by a recognition of the right of the people to privacy, as embodied in section 6 . . . of article I of the [Hawai‘i Constitution.]” HRS § 92F-2. Accordingly, UIPA mandates disclosure of public records but furnishes an exception for “[g]overnment records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy[.]” HRS § 92F-13(1) (2012). This case requires us to apply this exception to records about police misconduct. We have recognized a “compelling public interest in instances of police misconduct given the importance of public oversight of law enforcement.” Peer News LLC v. City & Cty. of Honolulu, 138 Hawai‘i 53, 74, 376 P.3d 1, 22 (2016). But under UIPA, the public’s interest must be balanced against any countervailing privacy interests. HRS § 92F-14(a) (2012). Here, plaintiff State of Hawaii Organization of Police Officers (SHOPO) sued under UIPA to prevent the disclosure of certain police misconduct records, invoking the privacy exception. Preliminarily, we hold that there is no private cause of action to prevent, as opposed to compel, the release of public records under UIPA. The Circuit Court of the First Circuit (circuit court) correctly dismissed 2 SHOPO’s UIPA claims for that reason. It erred, however, by conflating the constitutional privacy right with the statutory privacy interests codified in UIPA; the core protections of the Hawai‘i Constitution remain unaltered when the legislature chooses to extend greater protections than article I, section 6 requires. Nonetheless, we hold that UIPA requires the release of the requested records. This issue compels us to revisit two cases in which we have previously considered the required scope of disclosure of police misconduct records: State of Hawaiʻi Organization of Police Officers v. Society of Professional Journalists – University of Hawaiʻi (SHOPO v. SPJ), 83 Hawaiʻi 378, 927 P.2d 386 (1996), and Peer News. While SHOPO v. SPJ made clear that police officers did not enjoy a constitutional privacy interest in their misconduct records, Peer News acknowledged that the legislature had recognized a significant privacy interest by statute. Act 47, however, subsequently rescinded that recognition. 2020 Haw. Sess. Laws Act 47, § martinjames@example.net. We apply Act 47 here, and to the extent the records fall within the categories enumerated by HRS § 92F-14(b)(4)(B)(i)-(v) (2012) (excepting certain kinds of misconduct information from the general privacy interest in a personnel file), SHOPO v. SPJ’s holding applies – only a scintilla of public interest will compel disclosure, a threshold easily surpassed here. To the 3 extent the records fall outside those categories, the balancing test prescribed by Peer News applies. We agree with the circuit court that, applying the Peer News test, the public interest in disclosure outweighs the significant privacy martinjames@example.net. Moreover, SHOPO’s challenges to the procedures employed by the circuit court and the City, and to the circuit court’s application of the balancing test, are unconvincing. We accordingly affirm the circuit court’s judgment mandating the records’ release. 1 II. BACKGROUND In September 2014, video from a restaurant’s surveillance camera surfaced and was widely disseminated; the video appeared to show, and was widely reported as portraying, Honolulu Police Department (HPD) Sergeant Darren Cachola in a physical altercation with a woman. 2 In the aftermath of the video, Sergeant Cachola was terminated from HPD. But after arbitration, he was reinstated with back pay, and the disciplinary action was reduced to a suspension. 1 On December 16, 2020, we lifted the stay of the judgment, and the circuit court thereafter released the records. We retained concurrent jurisdiction to issue this opinion. See, e.g., In re AB, 145 Hawai‘i 498, 513, 454 P.3d 439, 454 (2019). 2 The events giving rise to this litigation were widely publicized, and many of the news articles covering the video and its aftermath are in the record. The complaint did not name Sergeant Cachola, and SHOPO has at times objected during this litigation to publicly naming the officer. However, even before this court ordered the lifting of the stay of the circuit court’s judgment, the record was replete with instances of his name. 4 On February 22, 2018, Civil Beat requested that the City release “the arbitration decision involving Darren Cachola” pursuant to UIPA. According to SHOPO’s complaint, HPD notified SHOPO that it was considering releasing the records on April 12, 2018; on April 14, 2018, SHOPO wrote to the Chief and Deputy Chief of HPD to voice its “strenuous[] object[ion]” to the records’ release. HPD officials subsequently informed SHOPO that “the public’s interest in the subject records outweighed the privacy interest of [the] officers” and that it intended to release the records in redacted form. A. Circuit Court Proceedings 1. SHOPO’s Complaint SHOPO sued the City in the circuit court. 3 The complaint requested declaratory and injunctive relief under the Hawaiʻi Constitution, UIPA, and the collective bargaining agreement (CBA) between SHOPO and the City. 4 SHOPO alleged that the release of information related to an officer’s suspension, including the arbitration decision which ordered his reinstatement, would violate the officer’s right to privacy. 3 The Honorable Jeffrey P. Crabtree presided. 4 SHOPO also filed a class grievance under the CBA and a prohibited practice complaint with the Hawaiʻi Labor Relations Board (HLRB). The record indicates that SHOPO obtained a temporary restraining order from the HLRB, blocking the release of the records pending a final decision in the instant case. 5 Specifically, SHOPO’s complaint stated that both the “informational privacy” protection enshrined in article I, section 6 of the Hawai‘i Constitution 5 and UIPA’s statutory protections in HRS §§ 94F-13 6 and 92F-14(b) 7 precluded the City from releasing those records to the public. SHOPO also challenged the lack of “written confirmation or explanation” about HPD’s application of the Peer News balancing test and the basis for the City’s conclusion that the public interest outweighed the privacy interest here. The City’s “failure to provide a written explanation” regarding the balancing test “stripped SHOPO and its affected members with their right of appeal to the [Office of Information Practices 5 Article I, section 6 provides: “The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right.” 6 HRS § 92F-13 provides: “[UIPA] shall not require disclosure of . . . [g]overnment records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy[.]” 7 HRS § 92F-14(a) provides: “Disclosure of a government record shall not constitute a clearly unwarranted invasion of personal privacy if the public interest in disclosure outweighs the privacy interest of the individual.” In turn, HRS § 92F-14(b) provides that “information in an agency’s personnel file” is an “example[] of information in which the individual has a significant privacy interest.” While “employment misconduct that results in an employee’s suspension or discharge” is typically excluded from that example, and therefore disclosable, at the time this litigation commenced, misconduct by “a county police department officer” that did not “result[] in the discharge of the officer” was exempted from the exclusion. HRS § 92F-14(b)(4)(B) (2012). Thus, under HRS § 92F-14 as it existed when the complaint was filed, a county police officer has a significant privacy interest in their personnel file, even if the information therein pertains to misconduct, unless the officer was discharged. In September 2020, the legislature removed the “county police officer” exception from HRS § 92F-14. 2020 Haw. Sess. Laws Act 47, § martinjames@example.net. 6 (OIP)] or Circuit Court,” citing HRS § 92F-42 (2012) (“The director of the [OIP] . . . [s]hall, upon request, review and rule on an . . . agency’s granting of access[.]”). Further, SHOPO stated that the CBA between SHOPO and the City was violated by the attempt to release the records because the CBA – which is “consistent with the right to privacy under Hawaii’s Constitution and the UIPA” - required the City to keep confidential all discipline and dismissal matters. Accordingly, SHOPO requested: (1) “a declaration that Defendant City’s decision to release the subject confidential and private information is a violation of the individual police officers’ privacy rights and in violation of [UIPA]”; (2) “a declaration that Defendant City’s failure to provide SHOPO and its members with information on how it reached its conclusion . . . stripped SHOPO and its affected members [of] their right of appeal to the OIP or Circuit Court” and likewise violated UIPA; (3) “a declaration of law that the right to privacy and the UIPA precludes and prohibits the release of any information regarding HPD officers who were the subject of discipline, unless those officers have exhausted all their administrative remedies and have been discharged due to disciplinary infractions”; and (4) “temporary, preliminary and permanent 7 injunctive relief to prevent and enjoin Defendant City from disclosing the requested information.” 8 2. August 13, 2018 Order Civil Beat was allowed to intervene and moved to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted or, alternatively, for summary judgment (Motion). The City joined in the Motion. Civil Beat argued that SHOPO failed to state a claim for a constitutional violation because “police officers do not have a constitutional right of privacy against disclosure of disciplinary suspension records.” Civil Beat further contended that UIPA furnished no private right of action to parties like SHOPO who “seek[] to withhold records from the public,” and therefore, the court lacked subject matter jurisdiction. “The UIPA is not a confidentiality law that confers rights on any third party to conceal government information from public view,” Civil Beat contended, but it argued that UIPA compelled the documents’ release in any event. SHOPO opposed the Motion, arguing that “police officers have a ‘significant privacy interest’ in their disciplinary suspension records,” and those records “must be 8 The City’s answer to the complaint largely admitted the factual allegations, but claimed it did not violate UIPA and that SHOPO was not entitled to information about how the City reached its conclusion. 8 kept private unless the public’s interest in disclosure outweighs the privacy interest of the individual police officer.” SHOPO contended it was permitted to enforce UIPA because it had standing to do so. It also disagreed with the contention that UIPA is not a confidentiality law; as a result, SHOPO argued it could bring this suit because a purpose of UIPA is to assure open access in balance with individual privacy rights. The circuit court granted the Motion “to the extent [SHOPO]’s claim is based on a violation of the [UIPA]” and denied the Motion in all other respects (August 13, 2018 Order). In the August 13, 2018 Order, the court concluded that “[SHOPO] has no private cause of action for disclosure of government records under the UIPA.” However, the circuit court “f[ound] SHOPO has a cause of action and standing to assert the constitutional privacy claim.” It ordered the City to produce the documents for in camera review. 3. September 28, 2018 Order SHOPO moved to “clarify, modify, or correct” the August 13, 2018 Order (Motion to Clarify). It argued clarification, modification, or correction was necessary for four reasons: (1) SHOPO “sought declaratory relief pursuant to HRS § 632-1 [(2016)], and injunctive relief to enjoin Defendant City from releasing the subject records” until it performs the 9 balancing test, not “a private cause of action under UIPA”; (2) because its requested relief included a declaration of the City’s UIPA obligations, “[i]t is not clear what is left of Plaintiff’s Complaint . . . because UIPA is the mechanism intended to protect the right to privacy which SHOPO’s Complaint seeks to enforce”; (3) dismissal of all UIPA claims and ordering in camera review contradicted each other; and (4) “[i]t is unclear if Plaintiff will be given the opportunity to conduct discovery” and what information the court would consider. The City and Civil Beat opposed the motion. The circuit court issued an Order (September 28, 2018 Order) clarifying that it would “apply a constitutional balancing test as discussed in Peer News.” It saw “no inconsistency between a constitutional balancing test and its finding of no private cause of action under UIPA” per the August 13, 2018 Order. “The Hawaiʻi Constitution sets a floor for privacy interests. The Legislature can establish more protections by statute (such as UIPA) if it chooses to. . . . This court has now ruled that the legislative protections of UIPA do not apply to Plaintiff under the circumstances of this case.” The circuit court stated that after in camera review, it would decide “whether any applicable constitutional privacy protections are outweighed by the public interest in disclosure under the applicable facts.” 10 4. Civil Beat’s Cross-Claim Civil Beat moved for, and was granted, permission to file a cross-claim against the City as a requester “aggrieved by a denial of access to a government record” per HRS § 92F-15 (2012). Civil Beat asserted in the motion that “it appears that SHOPO is abandoning its constitutional privacy claims,” in which case, the circuit court may have been compelled to dismiss the case in its entirety. Civil Beat’s cross-claim against the City alleged that the City denied their renewed UIPA request as a result of the HLRB’s order enjoining the release of the requested records. 9 See supra note 3. Thus, Civil Beat asked for the court to order the City to release “all information sought” by Civil Beat in its UIPA request – namely, the arbitration award, the closing report, and the full investigation. The City’s answer to the cross-claim denied that it had violated UIPA, but admitted that “Civil Beat has a right to access the requested records” and that “it has been and remains the City’s intention to disclose the requested records.” 5. January 3, 2019 Order The circuit court sua sponte reexamined and vacated part of the September 28, 2018 Order (January 3, 2019 Order). 9 The cross-claim alleges that Civil Beat issued another request for the records on August 30, 2018 (while the instant litigation was well underway), which was denied by the City on the grounds of the HLRB order. 11 It recognized that while its prior rulings constituted the law of the case, “so long as a trial court retains jurisdiction, it ‘always has the power to reexamine, modify, vacate, correct and reverse its prior rulings and orders,’” especially when it feels a prior ruling was “probably erroneous.” (Quoting Chun v. Board of Trustees of the Emp. Ret. Sys., 92 Hawaiʻi 432, 441, 992 P.2d 127, 136 (2000).) The circuit court reasoned that the September 28, 2018 Order had conflated the question of whether SHOPO had a statutory cause of action under UIPA with whether UIPA’s substantive, statutory privacy protections apply. “[T]he court now recognizes that the UIPA cause of action issue is separate from and does not nullify the legislature’s ability to create or enlarge statutory privacy exceptions to the UIPA’s broad disclosure requirements.” It determined that the statutory privacy interests granted by the legislature under the UIPA should be applied by this court whether or not the City/HPD chooses to disclose the information or martinjames@example.net. Otherwise, an individual’s statutory privacy interests under the UIPA are ephemeral, and evaporate whenever the agency chooses to disclose, with no relief available from the court. The circuit court reasoned this approach was more consistent “with the underlying purposes of the UIPA, which include making the ‘government accountable to individuals in the collection, use, and dissemination of information relating to them.’” (Citing HRS § 92F-2(4).) 12 6. April 29, 2019 Order On April 29, 2019, the circuit court issued an order after in camera review of the records (April 29, 2019 Order). The April 29, 2019 Order granted summary judgment against SHOPO and in favor of the City and Civil Beat as to the arbitration decision and closing report. It dismissed without prejudice all claims regarding the investigative report, and dismissed all other claims. The court ruled as follows: 1. The Court was asked to review three documents in camera: the arbitration award, the closing report, which is 143 pages, and the investigative report, which is 767 pages. 2. The more serious the misconduct, the more likely the public interest outweighs the individual privacy interest. Here, the alleged misconduct was extremely serious: the use of unauthorized, unjustified, and potentially criminal physical force against another person, completely unrelated to any official law enforcement duties. 3. The proper performance of public duty is a public concern, and it is given great weight when balancing competing privacy interests. This is true whether addressing off-duty acts that bear upon a police officer’s fitness to perform duties, or whether the alleged actions involve official duties. Here, the alleged acts are essentially personal and off-duty, but clearly can bear upon a police officer’s fitness to perform duties. 4. There is a significant public interest in the public knowing how the Honolulu Police Department (HPD) supervises alleged misconduct, responds to misconduct allegations, and investigates alleged misconduct. A large portion of the records reviewed in camera (which the City/HPD themselves decided to release) involve HPD’s investigation and response to the misconduct allegations. 5. Little of the conduct described in these records was of a truly personal, private, or intimate nature. Much of the alleged conduct occurred in front of witnesses, in a restaurant, or in the public areas, and with third parties. 6. For the above reasons, the Court finds that as a matter of law, the public interest in disclosure far outweighs the privacy interests of the records directed to 13 be released in this order. Put another way, consistent with the UIPA’s general policy in favor of disclosure, the City/HPD’s disclosure of these records is not clearly unwarranted. 7. Further, there is a separate and independent ground to release the arbitration award - the requirement to disclose adjudicative orders pursuant to HRS § 92F- 12(a)(2) [(2012)]. 8. Although the arbitration award, as the final adjudication award, is a mandatory disclosure under section 92F-12(a)(2), it is still subject to privacy interests per section 92F-13(1). 9. Disclosing the redacted portions of the arbitration award, to include the City/HPD’s proposed redactions as well as any additional redactions necessary to protect “personal information” as defined by Hawaii Court Records Rules (HCRR) Rule 2.19,[ 10] is clearly unwarranted when weighed against the privacy interests of the civilians involved. 10. The closing report is not a criminal investigation file. It is a disciplinary action file. The Court understands the HPD and the City have voluntarily decided to release the closing report, with certain redactions. This Court is tasked with ruling on the privacy issues presented by the release of the proposed redacted closing report. 11. In essence, the closing report contains more details than the arbitration award concerning the events and investigation that led to the officer’s termination and subsequent reinstatement. In addition to the information redacted in the arbitration award, the closing report redacts the names of various witnesses, and responding and/or investigating officers. Although these identities are redacted, the person’s actions and inactions are disclosed. In other words, with the redacted version, the reader will learn in detail what happened, and will see in detail how the investigation was conducted, but may not learn exactly which witness or exactly which responding or investigating officer did something specific. 12. The Court finds that the HPD/City’s disclosure of the proposed redacted closing report is not clearly unwarranted. HPD is plainly trying to be transparent regarding the disciplinary investigation of the officer who was discharged and then reinstated, while balancing the privacy interests of everyone else involved. It is a fine 10 Hawaiʻi Court Records Rule (HCCR) Rule 2.19 defines “personal information.” HCCR Rule 9 generally prohibits the inclusion of personal information in publicly accessible court filings. 14 line, and time-consuming, to weigh these issues page by page. 13. The bottom line is the Court finds the disclosure and redactions are legally justified. The public’s right to know under the UIPA is satisfied by learning the details regarding the discharged/reinstated officer, as well as the details of what the investigation revealed and how the investigation was conducted. At the same time, the privacy of certain civilian witnesses, and certain information regarding the responding and investigating officers, is redacted. The Court does not believe the redactions materially detract from the voluminous information being disclosed by HPD/City. The public’s right to know should be met by seeing both the final adjudicative decision, and HPD’s response to the entire incident. 14. The Court respectfully disagrees with SHOPO’s claim or inference that the City did not conduct any kind of balancing analysis and that therefore this Court is in essence conducting the first balancing test for these records. The Court sees no evidence in the record to support this claim. Just because the agency is not required to give a plaintiff a written/reasoned explanation for disclosure does not mean no balancing test was performed. 15. For the above reasons, the Court hereby orders release of the redacted arbitration award, subject to additional redactions wherever necessary to protect “personal information” as defined by HCRR Rule 2.19. 16. The Court further orders the release of the redacted version of the closing report[. 11] The court also noted that it had only received the unredacted version of the 767-page investigative report; it understood the City to be working on redactions, but it declined to make those decisions itself. It also “doubt[ed] that the full investigative file adds much to the discussion” as it was duplicative of the arbitration award and closing report; it accordingly did not order the disclosure of the report (except for 72 pages containing “HPD’s policies, procedures and rules 11 The court also ordered further redactions to the closing report. 15 applicable to the incident in question” that did not require redaction). Claims related to the investigative report were dismissed without prejudice. SHOPO moved for, and the circuit court granted, a stay of the judgment pending appeal. 12 B. Proceedings on Appeal SHOPO and Civil Beat cross-appealed. At issue on appeal are the August 13, 2018 Order; the September 28, 2018 Order; the January 3, 2019 Order; and the April 29, 2019 Order. SHOPO’s appeal raises the following points of error. First, it contends that the circuit court erred by failing to address its request for declaratory relief (a declaration of “Defendant City’s duties and responsibilities under the UIPA” and “guidance on how an agency must apply the UIPA balancing test”) and injunctive relief (“prohibiting Defendant City [from] releasing the subject records until such time that it has complied with UIPA”). In the alternative, SHOPO argues that the circuit court failed to properly interpret and apply the UIPA balancing 12 Civil Beat petitioned this court for a writ of mandamus, alleging that the circuit court failed to apply the proper test for a stay pending appeal. See Honolulu Civil Beat Inc. v. Crabtree, SCPW-XX-XXXXXXX, 2019 WL 4678149 (Haw. Sept. 25, 2019) (Order Denying Petition for Writ of Mandamus). We denied the petition. After this court accepted Civil Beat’s application for transfer, Civil Beat moved to lift the stay pursuant to Hawai‘i Rules of Appellate Procedure (HRAP) Rule 8(a). We initially denied the motion on January 24, 2020. As explained below, however, we later lifted the stay upon Civil Beat’s renewed request. 16 test as set forth in Peer News. It specifically challenges the City and the circuit court’s application of the balancing test and the procedural integrity of the process, arguing: it was denied due process; the circuit court should have addressed the CBA, including the arbitrator’s decision to seal the arbitration decision pursuant to the CBA; the circuit court erred by conducting the balancing test de novo, as opposed to “the ‘highly factual’ standard”; the circuit court erroneously limited its in camera review because it was too “time consuming”; the circuit court’s “separate and independent ground[s]” for releasing the records under HRS § 92F-12(a)(2) was erroneous; the circuit court erroneously concluded the City was not required to issue a written explanation justifying disclosure; and the circuit court should have “prohibit[ed] the disclosure of the full investigative report.” Civil Beat’s appeal challenges the circuit court’s January 3, 2019 Order, which applied UIPA privacy standards despite reaffirming that SHOPO lacked a cause of action: “The circuit court’s recognition of an unspecified and amorphous implied cause of action based on the mere existence of the UIPA privacy standards directly contradicts the analysis for judicially implying a private right of action from a statute.” It also asks this court to review “[w]hether the constitutional 17 right of privacy standards are the same as the UIPA privacy standards.” This court accepted transfer of the appeals on October 24, 2019. While the appeals were pending, Act 47 became law. Act 47 amended, as relevant here, HRS § 92F-14 to remove the statutory “significant privacy interest” in the employment misconduct records of a county police officer. 13 The parties 13 More precisely, it removed the exception for county police officers from the exception for disciplinary records from the “personnel file” example on the list of examples of “information in which the individual has a significant privacy interest.” Act 47 amended HRS § 92F-14 as follows (deleted text represented by strikethrough): (b) The following are examples of information in which the individual has a significant privacy interest: . . . . (4) Information in an agency’s personnel file, . . . except: . . . . (B) The following information related to employment misconduct that results in an employee’s suspension or discharge: (i) The name of the employee; (ii) The nature of the employment related misconduct; (iii) The agency’s summary of the allegations of misconduct; (iv) Findings of fact and conclusions of law; and (v) The disciplinary action taken by the agency; when the following has occurred: the highest nonjudicial grievance adjustment procedure timely invoked by the employee or the employee’s representative has concluded; a written decision sustaining the suspension or discharge has been issued after this procedure; and thirty calendar days have elapsed following the issuance of the decision or, for decisions involving county police department 18 requested, and we granted, the opportunity for supplemental briefing that addressed how Act 47 affected the instant case. On December 16, 2020, after supplemental briefing and oral argument, we granted Civil Beat’s request to lift the stay of the judgment. We explained that “[i]t is clear to us that UIPA mandates the disclosure of the documents at issue,” and “[w]e accordingly s[aw] no reason for further delay in effectuating the circuit court’s order[.]” State of Hawai‘i Organization of Police Officers v. City and County of Honolulu, SCAP-XX-XXXXXXX (Haw. Dec. 16, 2020) (Order Lifting Stay Pending Appeal). As a result, the redacted arbitration award and closing report were released. We retained jurisdiction to issue this opinion, and we now elaborate on our reasons for concluding that the records were subject to disclosure. III. STANDARD OF REVIEW On appeal, an order of summary judgment is reviewed under the same standard applied by the circuit courts. Summary judgment is proper where the moving party demonstrates that there are no genuine issues of material fact and it is entitled to judgment as a matter of law. In other words, summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. SHOPO v. SPJ, 83 Hawaiʻi at 389, 927 martinjames@example.net. officers, ninety days have elapsed following the issuance of the decision; [provided that subparagraph (B) shall not apply to a county police department officer except in a case which results in the discharge of the officer;] 2020 Haw. Sess. Laws Act 47, § martinjames@example.net. 19 Whether a document is subject to disclosure under UIPA is reviewed de novo, HRS § 92F-15(b), as are “constitutional questions.” Doe v. Doe, 116 Hawaiʻi 323, 326, 172 P.3d 1067, 1070 (2007). IV. DISCUSSION UIPA requires disclosure of public records unless an exception applies; one of those exceptions lies where disclosure would constitute “a clearly unwarranted invasion of personal privacy.” HRS § 92F-13. In turn, HRS § 92F-14(a) provides that “[d]isclosure of a government record shall not constitute a clearly unwarranted invasion of personal privacy if the public interest in disclosure outweighs the privacy interest of the individual.” HRS § 92F-14(b) supplies a list of examples of information in which an individual has a “significant privacy interest.” One of those examples is “[i]nformation in an agency’s personnel file.” HRS § 92F-14(b)(4). This interest in one’s personnel file, however, is subject to an important exception: particular information related to employee misconduct resulting in suspension or discharge does not enjoy a significant privacy interest. HRS § 92F-14(b)(4)(B). Two cases interpreting these statutes are critical here. First, in SHOPO v. SPJ, we held that “information regarding a police officer’s misconduct in the course of his or 20 her duties as a police officer is not within the protection of Hawaiʻi’s constitutional right to privacy.” 83 Hawaiʻi at 397, 927 martinjames@example.net. Absent a significant privacy interest rooted in statute or the constitution, “a scintilla of public interest in disclosure will preclude a finding of a clearly unwarranted invasion of personal privacy.” Id. at 383–84, 927 P.2d at 391– 92 (quoting Conf. Comm. Rep. No. 112–88, in 1988 House Journal, at 817–18). Said differently, under SHOPO v. SPJ, records in which there is no significant privacy interest – which, at the time SHOPO v. SPJ was decided, was true of police misconduct records – must be released under UIPA if there is at least a scintilla of public interest in disclosure. Second, in Peer News, we recognized that the legislature had amended UIPA to carve out police misconduct records from the employment misconduct records in which an employee generally enjoys no right to privacy. Said plainly, the legislature “recognized a ‘significant privacy interest’ in police officers’ disciplinary suspension records in HRS § 92F– 14(b).” 138 Hawai‘i at 61, 376 P.3d at 9. Accordingly, Peer News held that determining whether police misconduct records are subject to disclosure under UIPA requires “balancing that [significant] privacy interest against the public interest in disclosure of the records.” Id. at 73, 376 martinjames@example.net. 21 Accordingly, the following scheme applies when UIPA’s privacy exception is invoked: The application of section 92F–14 varies considerably depending on whether or not the privacy interest is considered “significant.” [SHOPO v. SPJ, 83 Hawaiʻi] at 383–84, 927 P.2d at 391–92. “[O]nce a significant privacy interest is found, the privacy interest will be balanced against the public interest in disclosure. If the privacy interest is not ‘significant,’ a scintilla of public interest in disclosure will preclude a finding of a clearly unwarranted invasion of personal privacy.” Id. (quoting Conf. Comm. Rep. No. 112–88, in 1988 House Journal, at 817– 18). Id. at 76, 376 P.3d at 24 (Pollack, J., concurring). This case requires us to consider how UIPA, as interpreted by SHOPO v. SPJ and Peer News, applies to the sought records in this case: the redacted arbitration award and closing report. 14 It also requires us to determine whether and how Act 47 changes the analysis insofar as the legislature has now rescinded its recognition of a “significant privacy interest” in police misconduct records. But first, as a threshold matter, we must consider whether SHOPO had the right to bring this martinjames@example.net. A. There Is No Private Right of Action Under UIPA for a Party to Sue to Prevent the Release of Records that an Agency Has Determined Are Subject to Disclosure SHOPO’s complaint challenges the City’s decision to release documents pursuant to UIPA, seeking both declaratory and 14 Civil Beat has not appealed the circuit court’s decision not to order the release of the investigative report. This opinion accordingly does not address whether UIPA requires the disclosure of that record. However, we do address SHOPO’s contention that the circuit court should have prohibited the disclosure of the investigative report in Part IV.J below. 22 injunctive relief. To do so, however, SHOPO must have a right of action. We hold that there is no private right of action under UIPA for a party seeking to prevent the release of documents. As a preliminary matter, SHOPO argues that HRS § 632- 1, which provides for declaratory relief in certain circumstances, itself creates a right of action. 15 It does not. An express or implied right of action must sound from some other law before a party may rely on HRS § 632-1’s remedies. In Alakaʻi Na Keiki, Inc. v. Matayoshi, 127 Hawaiʻi 263, 277 P.3d 988 (2012), the plaintiff – a business that had submitted a proposal to the State to provide health and human services – sought a declaratory judgment that the State had violated HRS Chapter 103F, which establishes rules for health-related procurements by the State. Id. at 266-67, 277 martinjames@example.net. Although the plaintiff sought declaratory relief, we explained, 15 SHOPO also argues that “Civil Beat’s [right of action] argument here fails because it ignores . . . [SHOPO’s] clear standing to assert such claims.” That SHOPO would have standing to seek declaratory relief under Tax Foundation of Hawaiʻi v. State, 144 Hawaiʻi 175, 439 P.3d 127 (2019), is of no matter if it lacks a cause of action. As we explained in County of Hawaiʻi v. Ala Loop Homeowners, 123 Hawaiʻi 391, 235 P.3d 1103 (2010): [O]ur cases make clear that the two inquiries [standing and private right of action] involve distinct policy considerations and distinct tests. The private right of action inquiry focuses on the question of whether any private party can sue to enforce a statute, while the standing inquiry focuses on whether a particular private party is an appropriate plaintiff. Id. at 406 n.20, 235 P.3d at 1118 n.20 (citations omitted). 23 “In order for a party to sue for enforcement under HRS § 632–1, HRS chapter 103F must provide for an express or implied private right of action.” Id. at 285, 277 martinjames@example.net. Thus, the declaratory judgment statute provides a remedy but does not furnish a cause of action; the substantive law the plaintiff seeks to enforce by way of a declaratory judgment must itself do so. In order to enforce UIPA, SHOPO’s cause of action must emanate from UIPA itself, the substantive law it seeks to enforce. First, no express cause of action to prevent disclosure of government records exists under UIPA. UIPA provides an express cause of action for a specific class of people: those aggrieved by nondisclosure. 16 HRS § 92F-15(a) provides: “[a] person aggrieved by a denial of access to a government record may bring an action against the agency at any time within two years after the agency denial to compel disclosure.” (Emphases added.) Thus, UIPA provides for 16 Under federal law, some parties may sue to prevent the release of certain documents pursuant to the Freedom of Information Act (FOIA). CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1133 n.1 (D.C. Cir. 1987). While FOIA and related statutes furnish the substantive law in so-called “reverse-FOIA” lawsuits, “§ 10(a) of the Administrative Procedure Act (APA), 5 U.S.C. § 702 (1982), supplies the cause of action.” Id. (citing Chrysler Corp. v. Brown, 441 U.S. 281, 317, 317 n.47 (1979)). Section 10(a) of the APA provides in relevant part: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” No party has argued that the judicial review provisions of Chapter 91, Hawaiʻi’s equivalent to the APA, provides a cause of action, and Chapter 91 is meaningfully different from the APA in any event. 24 judicial enforcement by a requester who tried, but failed, to acquire government documents. SHOPO is not “a person aggrieved by a denial of access”; SHOPO is aggrieved by the agency’s grant of access. Moreover, SHOPO is not seeking to “compel disclosure” – quite the opposite. Accordingly, SHOPO is not entitled to invoke Chapter 92F’s judicial enforcement mechanism, and UIPA furnishes no other express cause of action to sustain SHOPO’s suit. Thus, if a right of action to prevent disclosure exists under Chapter 92F, it must be implied. To determine whether a statute confers an implied private right of action, this court has adopted the United States Supreme Court’s analysis in Cort v. Ash, 422 U.S. 66 (1975). See, e.g., Reliable Collection Agency, Ltd. v. Cole, 59 Haw. 503, 506–07, 584 P.2d 107, 109 (1978); County of Hawaiʻi v. Ala Loop Homeowners, 123 Hawaiʻi 391, 407-08, 235 P.3d 1103, 1119-20 (2010), abrogated on other grounds by Tax Found. of Hawaiʻi v. State, 144 Hawaiʻi 175, 439 P.3d 127 (2019); Hungate v. Law Office of David B. Rosen, 139 Hawaiʻi 394, 406, 391 P.3d 1, 13 (2017). Cort set forth “several factors” to determine “whether a private remedy is implicit in a statute not expressly providing one”: First, is the plaintiff ‘one of the class for whose especial benefit the statute was enacted[]’ . . . ? Second, is there any indication of legislative intent, 25 explicit or implicit, either to create such a remedy or to deny one? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? 422 U.S. at 78 (citations omitted). 17 In the intervening years, the United States Supreme Court has refined the inquiry to emphasize legislative intent. See Gonzaga Univ. v. Doe, 536 U.S. 273, 283-84 (2002); Alexander v. Sandoval, 532 U.S. 275, 286 (2001). This court has followed suit. In Rees v. Carlisle, 113 Hawaiʻi 446, 153 P.3d 1131, (2007), we explained that “we apply Cort’s first three factors in determining whether a statute provides a private right of action though understanding that legislative intent appears to be the determinative factor.” Id. at 458, 153 P.3d at 1143 (quoting Whitey’s Boat Cruises, Inc. v. Napali-Kauai Boat Charters, Inc., 110 Hawaiʻi 302, 313 n.20, 132 P.3d 1213, 1224 n.20 (2006)). Based on this test, there is no implied cause of action under UIPA for SHOPO to sue to prevent the release of records. Recognizing that UIPA grants county police officers a privacy interest in their personnel files, SHOPO, via its members, is arguably “a member of the class for whose special benefit the statute was enacted” (albeit this contention might 17 The fourth factor in the Cort test is inapplicable here for obvious reasons: “And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?” 422 U.S. at 78. 26 reasonably be called into doubt in light of Act 47). Hungate, 139 Hawaiʻi at 406, 391 martinjames@example.net. But neither legislative intent nor the underlying purposes of the legislative scheme indicate that a party in SHOPO’s position is able to sue to prevent the disclosure of public records. UIPA simply provides no right of nondisclosure. Legislative intent is given the greatest weight. In this case, there is a clear and obvious indicator of legislative intent: UIPA already provides for particular kinds of enforcement actions. “A frequently stated principle of statutory construction is that when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies.” Reliable Collection Agency, 59 Haw. at 510, 584 P.2d at 111 (quoting Nat’l R.R. Passenger Corp. v. Nat’l Ass’n of R.R. Passengers, 414 U.S. 453, 458 (1974)). The legislature chose to provide for judicial review and was quite specific that review is available when a party is aggrieved by an agency’s denial of access. HRS § 92F-15; see Whitey’s Boat Cruises, 110 Hawaiʻi at 314, 132 P.3d at 1225 (reasoning that the existence of enumerated civil penalties weighed against implying a private right of action); cf. Travelers Ins. Co. v. Hawaii Roofing, Inc., 64 Haw. 380, 387, 641 P.2d 1333, 1338 (1982) (disallowing a lawsuit where suing appeared to be an “attempt at 27 circumvention of statutory dictates”). And UIPA elsewhere penalizes wrongful disclosure, as HRS § 92F-17(a) (2012) makes it a misdemeanor to “intentionally disclose[] or provide[] a copy of a government record, or any confidential information explicitly described by specific confidentiality statutes, to any person or agency with actual knowledge that disclosure is prohibited[.]” See Rees, 113 Hawaiʻi at 458–59, 153 P.3d at 1143–44 (concluding that private enforcement would be inconsistent with an ordinance when the law explicitly provided for public enforcement); cf. Molfino v. Yuen, 134 Hawaiʻi 181, 187, 339 P.3d 679, 685 (2014) (declining to impose tort liability under Chapter 92F because the fact that it “expressly imposes criminal penalties for intentional violations of confidentiality statutes” reflected countervailing legislative intent). The legislative scheme also points against implying a cause of action for SHOPO to sue to prevent disclosure because UIPA itself creates no right of nondisclosure. SHOPO does not accurately characterize the law when it says that documents are “protected from disclosure” unless the public interest outweighs the privacy interest. In fact, HRS § 92F-13(1) provides that “[UIPA] shall not require disclosure of,” inter alia, “records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy[.]” (Emphasis added.) “The plain 28 language of a statute is ‘the fundamental starting point of statutory interpretation[.]’” State v. Demello, 136 Hawaiʻi 193, 195, 361 P.3d 420, 422 (2015) (citation omitted). The statutory language here is not prohibitive: that is, HRS § 92F-13 does “not require disclosure” if an exemption applies, but it does not forbid it, either. The statute does not, for instance, say that such records “shall not be disclosed,” language used in other statutes. 18 Indeed, UIPA itself uses more restrictive and unequivocal language prohibiting disclosure in other places within the statutory scheme: under HRS § 92F-19(a) (2012), “[n]o agency may disclose or authorize disclosure of government records to any other agency,” unless a defined exception applies. And the fourth exemption in HRS § 92F-13 provides that an agency need not release “[g]overnment records which, pursuant to state or federal law including an order of any state or federal court, are protected from disclosure[.]” HRS § 92F- 13(4) (emphasis added). This provision recognizes that, unlike documents that are exempt from disclosure per HRS § 92F-13(1), (2), (3), and (5), some records are affirmatively “protected from disclosure” by state or federal law, and an agency does not 18 See, e.g., HRS § 37-77.5(b) (2009) (attorney general’s report about claims against the State “shall not be disclosed pursuant to sections 92F-13 and 92F-19(b)”); HRS § 334-5 (Supp. 2014) (records maintained by health care providers “shall not be disclosed by any person”); HRS § 333F-8.7 (Supp. 2014) (records identifying a person who received services because of a developmental disability “shall not be disclosed by any person”); HRS § 612- 13 (2016) (names of jurors “shall not be disclosed”). 29 violate UIPA, which would otherwise mandate disclosure, by abiding by a countervailing directive. Reading the statute in pari materia, that the legislature could have, but did not, phrase HRS § 92F-13 to prohibit disclosure or protect from disclosure (rather than “not require disclosure”) suggests that the difference was purposeful, and “this court must presume that the legislature meant what it said[.]” Demello, 136 Hawaiʻi at 195, 361 martinjames@example.net. Civil Beat also points out that the Fair Information Practice law once codified in Chapter 92E, which was repealed and replaced with UIPA in the late 1980s, used to expressly prohibit agency disclosure of “personal record[s].” HRS § 92E-4 (1985). The same chapter also provided that “[a]n individual may bring a civil [action] against an agency in a circuit court of the State whenever an agency fails to comply with any provision of this chapter[.]” HRS § 92E-11(a) (1985) (emphasis added). That these provisions were repealed and replaced by a statutory scheme with no analogues suggests that the legislature acted purposefully when it passed UIPA, both by limiting the scope of judicial review and by making the exceptions to disclosure discretionary. This conclusion also comports with the OIP’s understanding of UIPA, and OIP opinions “shall be considered as precedent” unless “palpably erroneous” under HRS § 92F-15(b). 30 When a requested record falls into one of these exceptions [under HRS § 92F-13], an agency is not required to disclose it, but an agency is not forbidden from waiving the exception and disclosing the record, unless exception [HRS § 92F-13(4)] applies and the record is protected by a statute or court order. OIP Op. Ltr. No. 99-04, at 2 (Oct. 15, 1999); see also OIP Op. Ltr. No. 05-03, at 1 (Jan. 19, 2005) (“While the UIPA confers on an agency the discretion to withhold certain types of records (or certain types of information contained in records), it does not require an agency to deny access to those records.”); OIP Op. Ltr. No. 05-18, at 3 (Dec. 9, 2005) (“[G]enerally, the UIPA is a discretionary statute and does not require an agency to withhold a record.”); OIP Op. Ltr. No. 06-04, at 4 (June 14, 2006) (“If disclosure ‘would constitute a clearly unwarranted invasion of personal privacy’ of that third party, it is our opinion that the agency may, and generally should, exercise its discretion to withhold that personal information under section 92F-13(1).” (emphases added)); OIP Op. Ltr. No. 07-11, at 1 n.3 (Sept. 25, 2007) (“OIP notes that the UIPA is not a ‘confidentiality statute’ that requires an agency to withhold records. Rather, the UIPA allows an agency to withhold those records (or information contained in those records) if an exception to disclosure provided by statute applies. An agency, therefore, has the discretion to publicly disclose records that could otherwise be withheld under the UIPA.”). 31 Peer News is not to the contrary. In Peer News, Civil Beat had requested information regarding instances of misconduct from HPD and was denied. 138 Hawaiʻi at 55-57, 376 martinjames@example.net. The procedural posture of Peer News, then, only gave us the opportunity to review when it is appropriate for the circuit court to order disclosure in a UIPA lawsuit brought by an aggrieved requestor; we did not have the occasion to consider when, if ever, the circuit court should enjoin disclosure, nor did we opine as to when disclosure by the agency is merely discretionary or prohibited outright. In other words, our statement that “[d]isclosure of records is appropriate only when the public interest in access to the records outweighs [an officer’s] privacy interest,” id. at 55, 376 P.3d at 3, referred to court-mandated disclosure. Accordingly, there are three classes of documents under UIPA: (1) documents that must be disclosed, (2) documents that may be disclosed, and (3) documents that may not be disclosed. 19 Parties denied access to a record (as the Peer News 19 The same is true under FOIA. FOIA’s exemption provision is also phrased permissively: “This section does not apply to matters that are [one of nine defined exemptions.]” 5 U.S.C. § 552(b). “Subsection (b), 5 U.S.C. § 552(b), which lists the exemptions, simply states that the specified material is not subject to the disclosure obligations set out in subsection (a). By its terms, subsection (b) demarcates the agency’s obligation to disclose; it does not foreclose disclosure.” Chrysler Corp., 441 U.S. at 292. Accordingly, FOIA “does not afford [plaintiffs] any right to enjoin agency disclosure.” Id. at 294. The success of reverse-FOIA cases brought under the APA often depends on whether another law – in Chrysler Corp., for example, the Trade Secrets Act – independently prohibits disclosure, such 32 plaintiffs were) may sue using the judicial review provision, HRS § 92F-15, and the circuit court should order disclosure if the sought information falls under category (1). Parties seeking to enjoin the release of information protected by the constitution (or another confidentiality statute if that statute provides a cause of action) may sue to prevent disclosure for documents under category (3), and criminal penalties likewise provide a remedy for wrongful disclosure of