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Electronically Filed
Supreme Court
SCPW-16-0000038
12-DEC-2016
09:18 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
OAHU PUBLICATIONS INC., dba The Honolulu Star-Advertiser,
a Hawaiʻi corporation, Petitioner,
vs.
THE HONORABLE BARBARA T. TAKASE, Judge of the District Court
of the Third Circuit, North and South Hilo Division,
State of Hawaiʻi, Respondent Judge,
and
THE STATE OF HAWAIʻI and ETHAN FERGUSON, Respondents.
SCPW-16-0000038
ORIGINAL PROCEEDING
(CR. NO. 16-1-000030)
DECEMBER 12, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
This case requires us to consider the procedures that
Hawaiʻi courts should follow when an individual’s personal
information has been included in a publicly accessible document
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that was filed in violation of Rule 9 of the Hawaiʻi Court
Records Rules (HCRR).
I. BACKGROUND
On January 7, 2016, Ethan Ferguson, a law enforcement
officer for the Hawaiʻi Department of Land and Natural Resources
(DLNR), was taken into custody pursuant to a warrantless arrest
and charged with five counts of sexual assault. Ferguson’s
arrest was widely reported in the media.
On January 7 and 8, 2016, the State of Hawaiʻi filed in
the District Court of the Third Circuit, South Hilo Division
(district court) an application for judicial determination of
probable cause for Ferguson’s warrantless arrest and for his
extended restraint (collectively, Ferguson Probable Cause
Application). The Ferguson Probable Cause Application contained
the full name and residential address of the minor complainant,
as well as the full social security numbers of individuals
depicted in a photographic lineup.1 The Ferguson Probable Cause
Application was signed by Judges Lloyd Van De Car on January 7,
2016, and Harry P. Freitas on January 8, 2016. Upon judicial
approval, the documents became part of the record of the case
1
Both the first application for judicial determination of probable
cause filed on January 7, 2016, and the second filed on January 8, 2016,
contained the name and address of the minor complainant and the social
security numbers of individuals depicted in the lineup. The second
application reflected a reclassification of all of the sexual assault
charges.
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and could have been reproduced for public distribution by court
personnel if a request had been made for copies.
On January 14, 2016, the State filed an ex parte
motion with the district court requesting that the court seal
the Ferguson Probable Cause Application to protect the minor
complainant’s full name, which had been included in the filing.
The motion stated in relevant part as follows:
The grounds for this Motion are the Application and
Declaration for Judicial Determination of Probable Cause
for Warrantless Arrest and for the Extended Restraint of
Liberty of Warrantless Arrestee and Attachments Filed on
January 7, 2016 and January 8, 2016, contained the victim’s
full name.
The State, therefore, applies to this Honorable Court
for an order requiring that the herein mentioned
Application and Declaration for Judicial Determination of
Probable Cause for Warrantless Arrest and for the Extended
Restraint of Liberty of Warrantless Arrestee and
Attachments Filed on January 7, 2016 and January 8, 2016,
be sealed in an envelope and that disclosure of its
contents be denied to any and all persons requesting such
information until such time as the court deems it necessary
to be disclosed.
The same day, Judge Takase granted the State’s request without
hearing and ordered the Ferguson Probable Cause Application to
“be sealed in an envelope and that disclosure of its contents be
denied to any and all persons requesting such information until
such time as the Court deems it necessary to be disclosed.”
One week later, on January 21, 2016, the State
submitted a Notice of Filing to the district court with an
attached redacted version of the Ferguson Probable Cause
Application (Redacted Application). The Redacted Application
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was identical to the sealed Ferguson Probable Cause Application,
except that the State had crossed out the minor complainant’s
name and address as well as the social security numbers of the
individuals pictured in the photographic lineup.
II. THE PETITION
On January 22, 2016, Oahu Publications Inc., dba the
Honolulu Star-Advertiser (Oahu Publications), filed a petition
requesting this court to issue two writs: (1) a writ of
prohibition prohibiting Judge Takase from enforcing her order
sealing the Ferguson Probable Cause Application in State v.
Ferguson, Cr. No. 16-1-000030 (Ferguson case); and (2) a writ of
mandamus ordering Judge Takase to (a) make public the contents
of the sealed Ferguson Probable Cause Application subject to
HCRR Rule 9.1 (2012), and (b) refrain from future document
sealings in the Ferguson case and any other criminal proceeding
without first providing notice, an opportunity to be heard, and
specific factual findings indicating the reason for preventing
public access to the documents. In its petition, Oahu
Publications contends that such procedures are required by the
First Amendment to the United States Constitution, article 1,
section 4 of the Hawaiʻi Constitution, and this court’s decision
in Oahu Publications Inc. v. Ahn, 133 Hawaiʻi 482, 331 P.3d 460
(2014). On January 28, 2016, this court directed Judge Takase,
the State, and Ferguson to answer the petition.
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Both the State and Judge Takase timely answered the
petition and argue that it should be denied as moot.2 The State
indicates that Oahu Publications’ petition was submitted one day
after the Redacted Application had already been filed with the
district court. Similarly, Judge Takase submits that the filing
of the Redacted Application renders Oahu Publications’ claims
moot and that its request for a writ of mandamus is unnecessary.3
With this court’s permission, Oahu Publications filed
a reply memorandum to address the mootness arguments submitted
by Judge Takase and the State. Oahu Publications initially
states that since it is not a party to the underlying
proceeding, it is not on the service list and, therefore, did
not know that a redacted document had been submitted to the
court at the time that it filed its petition. Oahu Publications
also maintains that the State’s belated efforts to make publicly
available the Ferguson Probable Cause Application do not render
its petition moot because of the applicability of the public
interest and “capable of repetition, yet evading review”
exception to the mootness doctrine. Oahu Publications contends
2
Ferguson filed a joinder to Judge Takase’s answer. He argues
that the petition should be dismissed based on the reasons set forth in Judge
Takase’s answer.
3
In her answer to the petition, Judge Takase also indicates that
the language “until such time as the Court deems it necessary to be
disclosed” was included in the district court’s order sealing the Ferguson
Probable Cause Application to allow the court to “revisit the sealing” of the
application “if anyone had objected and requested a hearing.”
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that the district court’s unconstitutional sealing procedure is
capable of repetition but likely to evade review and that an
authoritative determination of the proper sealing procedure is
highly desirable. This exception to the mootness doctrine,
according to Oahu Publications, is particularly necessary in the
context of the First Amendment right to public criminal trials
because they are generally short in duration and thus difficult
to timely challenge.
Supplemental Briefing
This court entered an order directing the parties to
file supplemental briefs regarding “the procedures that a court
should follow when an application for judicial determination of
probable cause for warrantless arrest that has been submitted or
filed with the court includes confidential information subject
to Rule 9 of the Hawaiʻi Court Records Rules.” The order
requested that the briefs address the timing and necessity of a
court hearing, the manner of providing notice thereof,
procedures with regard to a motion to seal or redact, and the
applicability of HCRR Rule 9.1(a). The parties timely
responded.4
Oahu Publications acknowledges that confidential
personal information subject to HCRR Rule 9 should not be
4
Judge Takase received permission from this court not to file a
supplemental brief in light of her recent retirement.
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disclosed in a publicly filed probable cause application. Oahu
Publications also acknowledges that a court that receives a
probable cause application that mistakenly or inadvertently
includes such information should take prompt steps to sequester
the confidential information and prevent its dissemination.
However, Oahu Publications contends that the procedure for
determining that the information is confidential must follow the
principles set forth in Ahn, 133 Hawaiʻi 482, 331 P.3d 460, and
respect the public’s right to access the non-confidential
portion of the filing. Specifically, Oahu Publications
maintains that the trial court must follow a procedure that,
while allowing for swift or even immediate removal of
confidential personal information, (1) provides notice of the
sealing and an opportunity to object via hearing as soon as
practicably possible, and (2) provides specific factual findings
indicating the reason for preventing access to a presumptively
public document.
Oahu Publications takes no position on what
constitutes sufficient notice in any given circumstance. It
does, however, recognize that notice may need to occur after the
court takes action in order to immediately protect disclosed
information that should be protected pursuant to HCRR Rule 9.1.
To this end, Oahu Publications suggests that, as soon as
reasonably possible, the court should notify the public of the
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sealing with a detailed explanation of the reasons for the
sealing and provide a retroactive opportunity to object. The
court, according to Oahu Publications, should then have a
hearing on the sealing for the parties to present their
objections and provide a detailed and timely explanation for its
decision to seal.
The State argues that if a court is aware that a
public document contains confidential personal information, the
court should have the ability to immediately seal the document
until it can be properly redacted in accordance with HCRR Rule 9
or redact the information from the document itself. According
to the State, an order sealing the document, the act of
redacting the document, or the newly filed redacted document can
serve as notice to the parties and the public and, if there is
an objection, a motion may be filed to address any concerns. At
that point in time, the State indicates that the court should
hold a hearing and determine if the document should remain
sealed.
The State also provides other procedures that may be
utilized to correct filed documents containing personal
information. First, the State suggests that any party or person
who has a lawful interest may file a motion and proposed order
to seal the document along with a corrected or redacted version
of the document. The State explains that the simultaneously
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filed corrected document would allow the public to have access
to the record, while also protecting the confidential personal
information and reducing the need for a hearing. If a party or
member of the public has an objection to the possible sealing or
redaction, the State maintains that a motion may be filed and
the district court should schedule a hearing. The State
explains that in any such scenario, the personal information
should be protected until after a hearing or until the district
court determines that the information should be made public.
Like the State, Ferguson contends that a court should
take prompt action to seal or redact any information that is
deemed confidential and subject to HCRR Rule 9. Ferguson
further suggests that the following steps should be taken: (1)
any party may immediately file an ex parte motion to seal the
document along with a redacted version of the document; and (2)
if the motion is granted, the court should then file the
redacted document and an order stating the reasons for the
sealing and redaction. If anyone objects to the court order
granting the ex parte motion, Ferguson submits that the court
should then set a hearing.
III. DISCUSSION
A. Mootness
This case raises questions regarding the procedures
Hawaiʻi courts should follow when personal information is
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included in filings of publicly accessible documents in
contravention of HCRR Rule 9 (2012). The State contends,
however, that its submission of the Redacted Application into
the public record renders Oahu Publications’ petition moot.
This court has recognized an exception to mootness in
cases involving issues that affect the public interest and are
capable of repetition yet evade review. Okada Trucking Co. v.
Bd. of Water Supply, 99 Hawaiʻi 191, 196, 53 P.3d 799, 804
(2002). Indeed, this exception to the mootness doctrine has
been used by this court in a similar case involving access to
judicial proceedings and documents. See Oahu Publ’ns Inc. v.
Ahn, 133 Hawaiʻi 482, 493 n.13, 331 P.3d 460, 471 n.13 (2014).
In Ahn, the petitioners sought a writ of prohibition and a writ
of mandamus to (1) compel access to sealed portions of a
transcript that were later unsealed during proceedings before
this court and (2) prohibit future courtroom closures without
giving notice to the public and an opportunity to respond. Id.
at 486, 331 P.3d at 464. We concluded in Ahn that “the likely
evasion of full review and the public interest criteria of the
public nature of the issue, the likelihood of recurrence, and
the desirability of an authoritative determination” called for
this court to “address the merits of the [p]etitioners’
arguments.” Id. at 493 n.13, 508, 331 P.3d at 471 n.13, 486.
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As discussed in greater detail below, there are no
clear remedial procedures for protecting sensitive personal
information inadvertently disclosed in filings in Hawaiʻi courts,
and the parties agree that such information as defined in the
Hawaiʻi Court Records Rules should be shielded if improperly made
public. Further, accidental submission of such personal
information in court filings is likely to recur and may cause
significant emotional distress or economic loss to individuals
whose information is entered into the public record. Incidents
of recurrence are likely to evade judicial review because
sealings of the record contended to be improper may be rectified
by the trial court before review can be accomplished. Thus, the
considerations that permitted review of the petitioners’
substantive arguments in Ahn, the public nature of the issue,
the likelihood of future recurrence and evasion of review, and
the importance of an authoritative determination of the issue
counsel this court to address the merits of Oahu Publications’
claims in this case.
B. HCRR Rule 9
Rule 9 of the Hawaiʻi Court Records Rules, titled
“Parties’ Responsibility to Protect Personal Information,”
provides a general prohibition against submission of personal
information in publicly accessible court filings:
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9.1. Prohibition; Form.
(a) Except as provided in this Rule 9 and notwithstanding
any other rule to the contrary, a party shall not include
personal information in any accessible document filed in
any state court or with ADLRO.[5] Required personal
information shall be submitted by means of a Confidential
Information Form that substantially conforms to HCRR Form 2
of these rules; provided the name and birth date of a minor
charged with a traffic infraction may be displayed on the
citation and the name of a minor may be displayed in
submissions in proceedings under HRS chapter 586 and
section 604-10.5. The Confidential Information Form shall
be designated confidential, protected, restricted, sealed,
or not accessible.
HCRR Rule 9.1(a) (2012) (emphasis added). Thus, under HCRR Rule
9.1(a), parties may not submit personal information in any
publicly accessible6 document filed with either the state courts
or with ADLRO. HCRR Rule 9.1(a). If necessary to the filing,
such personal information must be separately submitted by using
a sealed Confidential Information Form. Id.
Personal information is defined by HCRR Rule 2.19 as
including the following:
[S]ocial security numbers, dates of birth (except for
traffic citations), names of minor children, bank or
investment account numbers, medical and health records, and
social service reports.
HCRR Rule 2.19 (2012). The definition of personal information
also provides special procedures with respect to social security
5
“ADLRO” is defined by HCRR Rule 2.4 as the Administrative
Driver’s License Revocation Office (ADLRO). See HCRR Rule 2.4 (2010).
6
“Accessible” is defined by HCRR Rule 2.1 as “available to the
public for inspection and/or copying.” See HCRR Rule 2.1 (2010).
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and other account numbers, birthdates, and personal information
of minors:
To the extent a social security or account number is
required in an accessible document, the last 4 digits may
be displayed, provided that no more than half of the social
security or account digits are disclosed. To the extent a
birthdate is required in an accessible document, the birth
year may be displayed. Except as provided in Rule 9.1, to
the extent the name of a minor is required in an accessible
document, the initials of the minor may be displayed. To
the extent a complete social security number, account
number, birthdate, or name of a minor child is required for
adjudication of a case, the complete number or birthdate
shall be submitted in accordance with Rule 9.1 of these
rules.
HCRR Rule 2.19. Therefore, the prohibitions in the Hawaiʻi Court
Records Rules as to inclusion of personal information in
publicly accessible documents include the use of full social
security numbers, birthdates (except for birth year and the
birthdates of minors as to traffic citations), names of minor
children, bank or investment account numbers, medical and health
records, and social service reports. See HCRR Rules 2.19,
9.1(a).
Additionally, HCRR Rule 9.1(b) sets forth special
procedures for use of certain personal information in charging
documents in criminal proceedings or where such information is
required to state a claim. HCRR Rule 9.1(b) provides in
relevant part as follows:
(b) When the identity or age of a non-defendant minor is
required to charge a criminal offense or to state a claim,
the accessible charging instrument, complaint, information,
indictment, or petition shall include the initials and
birth year of the minor. When the identity of an account
is required to charge a criminal offense or to state a
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claim, the accessible charging instrument, complaint,
information, indictment, or petition may include the last 4
digits of the account number, provided not more than half
of the account’s digits are disclosed, as provided by Rule
2.2 of these rules. A full name, birthdate, or account
number shall be submitted on a confidential information
form in accordance with section (a) of this rule.
HCRR Rule 9.1(b) (2012) (emphasis added). Therefore, when the
identity or age of a non-defendant minor is necessary to charge
a criminal offense or state a claim, use of personal information
under HCRR Rule 9.1(b) is restricted to the minor’s initials and
birth year.7 HCRR Rule 9.1(b). Additionally, when an “identity
of an account” is necessary, the filing may include the last
four digits of the account number, provided that not more than
half of the account’s total digits are disclosed. HCRR Rule
9.1(b).
Violations of HCRR Rule 9 are partially addressed by
HCRR Rule 9.5 (2012), which allows the court or the hearing
7
In isolation from HCRR Rule 9.1(a), the portion of HCRR Rule
9.1(b) relating to non-defendant minors reads as mandatory rather than
prohibitory: the relevant filing “shall include the initials and birth year
of the minor.” Standing alone, HCRR Rule 9.1(b) could therefore be
interpreted as permitting the inclusion of personal information beyond that
of “the initials and birth year of the minor.” See HCRR Rule 9.1(b). We do
not, however, read HCRR Rule 9.1(b) as permitting the inclusion of other
personal information beyond initials and birth year in contravention of Rule
9.1(a). Rather, the import of HCRR Rule 9.1(b) is to permit, with respect to
the inclusion of personal information, only “the initials and birth year of
the minor” when necessary to allege the identity or age of a non-defendant
minor in a charging document or to state a claim. To read HCRR Rule 9.1(b)
as allowing the inclusion of personal information beyond the minor’s initials
and birth year would directly contradict the express prohibition against such
inclusion contained in HCRR Rule 9.1(a). See Richardson v. City & Cty. of
Honolulu, 76 Hawaiʻi 46, 55, 868 P.2d 1193, 1202 (1994) (“[L]aws in pari
materia, or upon the same subject matter, shall be construed with reference
to each other. What is clear in one statute may be called in aid to explain
what is doubtful in another.” (quoting Hawaii Revised Statutes (HRS) § 1-16
(1985); Kam v. Noh, 70 Haw. 321, 325, 770 P.2d 414, 417 (1989))).
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officer to impose “appropriate monetary or other sanctions upon
parties or attorneys” who fail to comply with the rule.
However, other than providing for the imposition of monetary or
other sanctions, the Hawaiʻi Court Records Rules do not specify
procedures to remedy an improper disclosure of personal
information under HCRR Rule 9.
C. Applicable Procedures
Accordingly, the Hawaiʻi Court Records Rules provide
strict rules regarding the use and accessibility of personal
information that reflect an acute concern with protecting the
privacy of members of the general public and additionally afford
special protection to information pertaining to minors. Indeed,
personal and informational privacy in general has long been
respected in the State of Hawaiʻi and is codified in article I,
section 6 of the Hawaiʻi Constitution. Haw. Const. art. I, § 6
(“The right of the people to privacy is recognized and shall not
be infringed without the showing of a compelling state
interest.”). Like the authors of HCRR Rule 9, the drafters of
article I, section 6 were similarly cognizant of the possible
accessibility and misuse of personal information in an
increasingly digital age:
Another area of concern that may be alleviated by [article
I, section 6] is the issue of informational privacy, or the
ability of a person to control the privacy of information
about himself. . . . There is often a legitimate need for
government or private parties to gather data about
individuals, but there is danger of abuse in the use and/or
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dissemination of such information. The danger of inclusion
of inaccurate data being retained in some computer bank,
thereby affecting the life of an individual, is inherent in
our modern day . . . .
Stand. Comm. Rep. No. 69 in 1 Proceedings of the Constitutional
Convention of Hawaiʻi of 1978, at 674 (1980) (emphasis added).
Dissemination of personal information may, for example, invade
the privacy of persons reporting or victimized by crimes.
Improperly disseminated personal information can also be used to
commit fraud, identity theft, and other financial and property
offenses. See State v. Pacquing, 129 Hawaiʻi 172, 181-82, 297
P.3d 188, 197-98 (2013) (discussing legislative history of
criminal offense of unauthorized possession of confidential
personal information and noting dangers and frequency of
commerce-based identity theft in Hawaiʻi); Greidinger v. Davis,
988 F.2d 1344, 1353-54 (4th Cir. 1993) (discussing dangers of
identity theft and noting that “the harm that can be inflicted
from the disclosure of a SSN to an unscrupulous individual is
alarming and potentially financially ruinous.”). HCRR Rule 9
also protects against dissemination of medical and mental health
records that, if improperly disclosed, may reveal highly
intimate matters. See Cohan v. Ayabe, 132 Hawaiʻi 408, 418, 322
P.3d 948, 958 (2014) (“If citizens feel that their privacy
rights in health care information are not adequately protected,
this may lead to various negative outcomes for patients,
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including ‘social and psychological harm through embarrassment,
economic harm through job discrimination and job loss, patient
difficulty in obtaining health insurance, health care fraud, and
patient reluctance to share sensitive information with their
doctors or pharmacists.’” (quoting Christopher R. Smith,
Somebody’s Watching Me: Protecting Patient Privacy in
Prescription Health Information, 36 Vt. L. Rev. 931, 943
(2012))). HCRR Rule 9 therefore performs the integral function
of protecting informational privacy and respecting the right of
every individual to be free from the distress, harm, or economic
loss that often results from unwarranted disclosure of personal
information.8
In recognition of the importance of protecting against
such disclosures, HCRR Rule 9 explicitly permits courts to issue
monetary and other sanctions for its violation. See HCRR Rule
9.5 (2012). Rule 9 does not, however, set forth the procedures
to undertake when personal information has been impermissibly
included in a publicly filed document.
8
Although the Hawaiʻi Court Records Rules contain a general
requirement that court and ADLRO records be publicly accessible aside from
prescribed exceptions, they do not supplant or otherwise displace statutes,
rules, or court orders that provide greater or more specific protections of
documents and records filed with the court and the ADLRO. See HCRR Rule 10.1
(2010) (“Except as otherwise provided by statute, rule, or order, court and
ADLRO records shall be accessible during regular business hours . . . .”
(emphasis added)).
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Other provisions of the Hawaiʻi Court Records Rules
provide guidance as to the drafters’ intent respecting the
inadvertent filing of incorrect documents. HCRR Rule 3, titled
“Duty to Maintain Record; Corrections,” grants the clerk of the
court the authority to replace incorrect documents without first
requesting an order of the court:
Where documents are maintained in an electronic document
management system, the Clerk may, with such technical
assistance as required and without order of a court replace
incorrect documents that were inadvertently uploaded by
parties or that have been corrupted, with the documents
that should have been uploaded . . . provided such
replacements . . . are completed within 10 business days
following the initial filing and all parties are notified
of the replacement . . . .
HCRR Rule 3.3 (2012) (emphases added). Therefore, when a party
has “inadvertently” filed an “incorrect” document, the court
clerk may replace it with a corrected version provided that such
replacement occurs within ten business days of the filing and
notice is given to all parties of the replacement. HCRR Rule
3.3.
HCRR Rule 3.3 also gives the clerk authority to
temporarily seal9 documents and provides in relevant part:
The Clerk may temporarily seal any document or record or
mark any document for in-camera review pending review and a
9
“Sealed” is defined by the Hawaiʻi Court Records Rules as meaning
“not accessible, i.e. not available for public inspection and copying.
Synonyms include, but are not limited to, confidential, protected, and
restricted.” HCRR Rule 2.24 (2012). “Seal” is similarly defined by Black’s
Law Dictionary as “to fasten up or enclose securely with or as if with a
seal,” or alternatively, “to prevent access to (a document, record, etc.),
especially by court order[.]” Seal, Black’s Law Dictionary (10th ed. 2014).
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determination of accessability [sic] by the court for which
the record is maintained or by the Hawaiʻi Supreme Court.
HCRR Rule 3.3. Thus, the Hawaiʻi Court Records Rules allow for
both (1) the replacement of incorrect documents inadvertently
filed and (2) the sealing of documents or records pending
determinations of future accessibility by the court. HCRR Rule
3.3.
Though useful to this court’s analysis, HCRR Rules
2.19, 3.3, and 9 do not clearly delineate the steps to be taken
when personal information has been impermissibly included in a
publicly accessible court filing. In considering such
procedures, the public’s right of access to judicial proceedings
and documents under the First Amendment to the United States
Constitution and article I, section 4 of the Hawaiʻi Constitution
weighs in favor of careful tailoring. See Oahu Publ’ns Inc. v.
Ahn, 133 Hawaiʻi 482, 494-95, 331 P.3d 460, 472-73 (2014).
If personal information is impermissibly filed, the
improper filing may be discovered by either (1) the parties or a
member of the general public or (2) the court itself. See,
e.g., N.Y. Comp. Codes R. & Regs. (N.Y.C.R.R.) tit. 22, §§
212.4(b)(2), 214.12(2), 210.4(b)(2), 208.4(b)(2) (2016) (where
“confidential personal information” has been improperly
disclosed in certain New York state court filings, the “court
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sua sponte or on motion by any person may order a party to
remove” such information).
i. Improper Filing Discovered by Parties and Non-Parties
Given the importance placed by HCRR Rule 9 on the
protection of personal information and because of its mandatory
prohibition against inclusion within a publicly accessible
document,10 a party who discovers personal information in its
filing in violation of HCRR Rule 9 must take immediate steps to
effectuate the sealing of the document or of the offending
content. If the error is discovered by a party who was not
responsible for the filing, principles of professional conduct
and civility suggest that counsel should promptly alert the
filing party and the court of the error.11 Additionally, because
of the likelihood that the improper release of personal
information will compromise the privacy of the individual whose
information was disclosed, non-parties to the proceeding should
also be permitted to request the court to seal the relevant
record. See, e.g., 22 N.Y.C.R.R. §§ 212.4(b)(2), 214.12(2),
210.4(b)(2), 208.4(b)(2) (permitting “any person” to move to
seal confidential personal information in publicly accessible
10
See HCRR Rule 9.1 (2012) (“[A] party shall not include personal
information . . . .” (emphasis added)); HCRR Rule 9.5 (authorizing imposition
of sanctions against “parties or attorneys who do not comply with Rule 9”).
11
See Hawaiʻi Rules of Professional Conduct (HRPC) Preamble at [5]
(2014) (“A lawyer should demonstrate respect for the legal system and for
those who serve it, including judges, other lawyers and public officials.”).
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court filings); Nevada Rules for Sealing and Redacting Court
Records (SRCR) Rule 3(1) (2008) (same).
The motion to seal should, when feasible, include an
attached copy of the properly redacted document or an indication
that such document has been filed.12 See, e.g., Illinois Supreme
Court Rules (ILCS S. Ct.) Rule 138 (2014) (motion requesting
redaction of improperly included personal information in
Illinois state court filings “shall have attached a copy of the
redacted version of the document”). The redacted document
should be narrowly tailored to only remove from public view the
personal information within the meaning of the Hawaiʻi Court
Records Rules.
Protecting the safety and security of personal
identifying information and ensuring the privacy of
complainants, minors, and others are of paramount importance.
Indeed, the parties to this case recognize that violation of
HCRR Rule 9 may require immediate action to protect the
individual whose personal information was improperly disclosed;
the parties further agree that such immediacy may require the
court to give notice and conduct a hearing after sealing a
document. The Hawaiʻi Court Records Rules similarly contemplate
12
Although this opinion considers that a motion may be the usual
means of effectuating the sealing of documents containing personal
information, submission of stipulations to seal or other procedures deemed
acceptable by a court may be utilized.
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that sealing of records may be necessary prior to a judicial
determination of their accessibility. See HCRR Rule 3.3
(authorizing the sealing of documents by the court clerk pending
a court’s subsequent determination of public accessibility).
Thus, if a court receives a motion to seal,13 it should promptly
seal those portions of the filing contended to be in violation
of HCRR Rule 9. See, e.g., ILCS S. Ct. Rule 138 (where personal
identity information has been impermissibly included in Illinois
state court filings and motion to order redaction has been
filed, the court clerk “shall remove the document or exhibit
containing the personal identity information from public access
pending the court’s ruling on the substance of the motion”).
To the extent technologically feasible and in
consideration of the use of electronic filing and record-
keeping, the sealing should be narrowly tailored so that those
portions of the filing containing non-personal information
remain in the public record.14 See Ahn, 133 Hawaiʻi at 507, 331
P.3d at 485 (sealing of a transcript should be tailored to
13
Because of the importance and urgency of motions to seal
documents due to improper inclusion of personal information, counsel should
ensure that the filing of such a motion is brought to the court’s immediate
attention.
14
Although the rules and regulations of other jurisdictions may
contemplate the redaction of the offending matter from documents by the
court, such a procedure may not be appropriate or possible given the Hawaiʻi
state courts’ general use of electronic filing and record-keeping, which may
allow only for sealing of the entire document.
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respect constitutional right of access to judicial proceedings
and, therefore, the court should only “seal [] such parts of the
transcript as necessary to preserve the anonymity of the
individuals sought to be protected” (alteration in original)
(quoting Press–Enter. Co. v. Superior Court of Cal., 464 U.S.
501, 513 (1984))); see also 22 N.Y.C.R.R. §§ 212.4(b)(2),
214.12(2), 210.4(b)(2), 208.4(b)(2) (where court seals record to
protect confidential personal information, it must “seal the
papers or a portion thereof containing [confidential personal
information] in accordance with the requirement . . . that any
sealing be no broader than reasonably necessary to protect the
[information]”).
When the court seals a document on the basis that it
may contain personal information in violation of the Hawaiʻi
Court Records Rules, it should promptly issue a written order in
the case giving notice of and briefly stating the reason for the
sealing.15 The order should provide that any individual may file
a motion objecting to the sealing of the document. The order
15
We recognize that members of the media that are not parties to a
proceeding may not be on the list of recipients receiving electronic service
of documents in a given case and may, therefore, not receive automatic
notification of a court’s order regarding sealing. However, as we concluded
in Ahn, “[t]o the extent practicable, a reasonable attempt should be made to
notify entities or persons who have requested ‘Extended Coverage’ of a case.”
133 Hawaiʻi at 497 n.19, 331 P.2d at 475, n.19; see also Application of the
Herald Co., 734 F.2d 93, 103 (2d Cir. 1984) (noting intention not to
“foreclose any [court] from electing to supplement the [public] docketing
requirement [the court] has outlined with steps of its own, such as
notification to one of the news media”).
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should also impose the requirement that, if the record does not
include a redacted version of the filing, the party that filed
the document containing personal information should
expeditiously file with the court a redacted version of the
document.16 See, e.g., Connecticut Practice Book § 11-20B (2011)
(orders sealing documents to protect personal information must
require party to submit redacted version of the filing within 10
days); Wis. Stat. § 801.19 (2016) (“[U]pon motion or its own
initiative, [the court may] seal the improperly filed documents
and order new redacted documents be prepared.”).
If the court does not receive a motion objecting to
the sealing, then no further action is required. If the court
receives such a motion, then it must address the motion as
appropriate under the circumstances.17
ii. Improper Filing Discovered by the Court
It is also foreseeable that a court may discover an
impermissible disclosure of personal information before
corrective action is taken by the parties or other interested
16
If the court receives a motion to seal but does not receive an
attached or concurrently filed redacted version of the record, the court may
consider setting a hearing date or a proof of compliance date in the order
providing notice.
17
If the motion identifies a legitimate dispute regarding whether a
filing impermissibly includes personal information, then the court should,
when appropriate, promptly schedule a hearing to resolve the dispute.
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individuals.18 If the court becomes aware that a filing of
publicly accessible documents impermissibly contains personal
information within the meaning of HCRR Rules 2.19 and 9,
although not obligated to take corrective measures, the court’s
inherent authority enables it to take remedial action.19 See
Enos v. Pac. Transfer & Warehouse, Inc., 79 Hawaiʻi 452, 457, 903
P.2d 1273, 1278 (1995) (“[I]t is well settled that ‘courts have
inherent equity, supervisory, and administrative powers as well
as inherent power to control the litigation process before
them.’” (quoting Richardson v. Sport Shinko (Waikiki Corp.), 76
Hawaiʻi 494, 507, 880 P.2d 169, 182 (1994))). In such a
situation, the court may, in its discretion, follow the
procedures identified above to remedy violations of the Hawaiʻi
Court Records Rules resulting from the impermissible inclusion
of personal information in publicly accessible documents.
D. Disposition of Oahu Publications’ Petition
In this case, the State properly filed a motion to
seal the Ferguson Probable Cause Application to protect the
18
We emphasize, however, that judges and court staff are not under
an affirmative obligation to review pleadings submitted by the parties to
determine if they contain personal information. As noted above, HCRR Rule 9
explicitly places the obligation on the parties to protect against inclusion
of personal information within publicly accessible filings.
19
This procedure is also consistent with HCRR Rule 3.3, which
authorizes the clerk of the court to replace incorrect documents
inadvertently filed and to seal records pending a judicial determination of
their accessibility. See HCRR Rule 3.3.
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personal information of the minor complainant and of the
individuals whose social security numbers were included in the
photographic lineup. Upon receipt of the motion, the court
correctly took prompt action to seal the document. However, the
State failed to submit a redacted version of the Ferguson
Probable Cause Application with its motion to seal and, in fact,
did not submit the Redacted Application until seven days after
filing the motion. The district court also did not order the
State to expeditiously file the Redacted Application or provide
notice in its order that any person who wished to object to the
sealing could request a hearing. Consequently, the delay in the
filing of the Redacted Application and the omission in the
court’s order to provide notice of a procedure to object to the
sealing of the document compromised the balance of protection of
personal information under HCRR Rule 9 and the public’s right of
access to judicial proceedings and documents provided by the
federal and state constitutions.
In its petition, Oahu Publications seeks (1) a writ of
prohibition prohibiting Judge Takase from enforcing her order
sealing the Ferguson Probable Cause Application and (2) a writ
of mandamus ordering Judge Takase to make public the sealed
Ferguson Probable Cause Application and to refrain from future
document sealings in the Ferguson case and any other criminal
proceeding without first providing notice and an opportunity to
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be heard. The State filed the Redacted Application with the
district court on January 21, 2016.
Therefore, the relief Oahu Publications requests in
its writ of prohibition has already been provided.
Additionally, the relief requested in its writ of mandamus is
unnecessary in light of the directives of this opinion and the
subsequent submission of the Redacted Application. See Oahu
Publ’ns Inc. v. Ahn, 133 Hawaiʻi 482, 493 n.13, 508, 331 P.3d
460, 471 n.13, 486 (2014) (dismissing petitioners’ writ of
prohibition and denying writ of mandamus in light of substantive
directives in opinion). Accordingly, under the present
circumstances of this case, the forms of relief requested by the
petition are not warranted.
IV. CONCLUSION
When personal information has been improperly included
in a publicly accessible document in violation of the Hawaiʻi
Court Records Rules, remedial measures must be taken to rectify
the rule violation. A party who learns of improperly included
personal information in its filing must take steps to effectuate
the immediate sealing of the document or of its offending
content and file a properly redacted version of the document.
Upon receiving such a motion, the court should promptly seal the
document or the content contended to be in violation of the
Hawaiʻi Court Records Rules by entering an order stating the
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reason for the sealing, informing the public and the parties of
the right to file a motion objecting to the sealing of the
document, and requiring the filing of a redacted version of the
document if it has not been submitted. When the court itself
discovers the improper inclusion of protected personal
information, it may follow similar procedures.
These measures further the intent of HCRR Rule 9 to
protect against disclosure of sensitive personal information
while also respecting the Hawaiʻi courts’ “long tradition of
accessibility by the public.” Oahu Publ’ns Inc. v. Ahn, 133
Hawaiʻi 482, 494, 331 P.3d 460, 472 (2014); see also In re Estate
of Campbell, 106 Hawaiʻi 453, 462, 106 P.3d 1096, 1105 (2005)
(“[O]ur jurisdiction also has a long-established ‘policy of
openness in judicial proceedings.’” (quoting Gannett Pac. Corp.
v. Richardson, 59 Haw. 224, 233, 580 P.2d 49, 56 (1978))). Any
inability to access non-protected information in a sealed
document would be short in duration because a redacted version
of the document should typically be accessible concurrently with
the motion to seal or filed expeditiously as provided by the
court’s order. The public, through the court’s order, will also
receive notice of the sealing and an opportunity to contest it.
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These procedures reflect a balanced approach to individual
privacy concerns and public accessibility.20
For the reasons discussed, the writ of prohibition is
dismissed and the writ of mandamus is denied as unnecessary in
light of the directives of this opinion and the subsequent
filing of the Redacted Application.
Jeffrey S. Portnoy, /s/ Mark E. Recktenwald
John P. Duchemin
/s/ Paula A. Nakayama
for petitioner
/s/ Sabrina S. McKenna
Douglas S. Chin,
/s/ Richard W. Pollack
Patricia Ohara, and
Robyn B. Chun /s/ Michael D. Wilson
for respondent the Honorable
Barbara T. Takase
M. Kanani Laubach
for respondent Ethan Ferguson
Haʻaheo M. Kahoʻohalahala
for respondent State of Hawaiʻi
20
A court may modify the procedures outlined in this opinion to
protect personal information inadvertently included in a publicly accessible
filing provided that such procedures strike an equivalent balance between
informational privacy and public accessibility.
29