- ORIGINAL Of Counsel: SUMIDA AU WONG A Limited Liability Law Company KEVIN P.H. SUMIDA 2544-0 ANTHONY L. WONG 6018-0 LANCE 3. AU 6244-0 735 Bishop Street, Suite 411 Honolulu, Hawai?i 96813 Telephone No. 808-356-2600 Attorneys for Defendant 4% A cmcun count FILLB 29? It.? 25 AH 36 .I. (ALBA Th IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII KATHERINE KEALOHA, Plaintiff, vs. CITY AND COUNTY OF and DEPARTMENT OF THE PROSECUTING ATTORNEY, Defendants. DEO MOTION FOR PRELIMINARY AND PERMANENT INJUNCTIVE MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY AND PERMANENT INJUNCTIVE NOTICE OF CERTIFICATE OF SERVICE Date: JUNZ 1 2017 Time: 5_ .m . Judge: MOTION FOR PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF Comes now Plaintiff above-named, by and through her attorneys, and pursuant to Rule 65 of the Hawaii Rules of Civil Procedure, respectfully moves this Honorable Court for a preliminary and permanent injunction, prohibiting defendants from disclosing to Honolulu Civil Beat, or to anyone with a like pending freedom of information request for the same, any of plaintiff?s employment records. . This motion is supported by the attached memorandum and declaration. MAY 2 3 2017 KEVIN P. H. SUMIDA ANTHONY L. WONG LANCE 8. AU Attorneys fOr Plaintiff DATED: HONOLULU, HAWAII, THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII KATHERINE KEALOHA, CIVIL NO. Plaintiff, MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY AND vs. PERMANENT INJUNCTIVE RELIEF CITY AND COUNTY OF and DEPARTMENT OF THE PROSECUTING ATTORNEY, Defendants. MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF Honolulu Civil Beat, a purported news organization, has apparently ?led a Freedom of Information Act request request?) for the employment records of the plaintiff. Plaintiff noted her objection to the release of such personal records, which are protected by the right of privacy embodied in the Hawaii State Constitution. Notwithstanding plaintiff?s objection, defendants have informed plaintiff tahta they intend to turn over plaintiff?s employment records, to include her salary, leave time, resume, commendations, training information, information in an employment questionnaire stamped WIDE CONFIDENTIAL SUPPLEMENTAL QUESTIONS: with FOR INTERNAL USE certain university students interviewed by plaintiff, but not hired, by the defendant, vacation time, and salary information broken down by month. The release of such detailed salary infomtation is especially problematical because, by ?reverse engineering? the information, any reviewer of the information can calculate the amount of time taken by plaintiff for medical leave. These ?v 0 records are protected by the right of privacy embodied in the Constitution of the State of Hawaii and must therefore be fully protected and not disclosed. I. THE EMPLOYMENT RECORDS ARE PROTECTED BY THE CONSTITUTIONAL RIGHT OF PRIVACY. Article I, Section 6 of the Hawaii Constitution was added to the Hawaii Bill of Rights at the 1978 Constitution Convention. It provides: The right of people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. . . This amendment was proposed and adopted, in part because of the recognition that: [t]here has been a trend in modern-day society to require that a person complete forms detailing 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 dissemination of such information. Standing Comm. Rep. No. 69, in 1 Proceedings of the Constitutional Convention of Hawaii of 1978, at 674 (emphasis supplied). The Standing Committee continued: Your Committee believes that the right of privacy encompasses the common law right of privacy or tort privacy. This is a recognition that the dissemination of private and personal matters, be it true, embarrassing or not, can cause mental pain and distress far greater than bodily injury. For example, the right can be used to protect an individual from invasion of his private affairs, public disclosure of embarrassing facts, and publicity placing the individual in a false light. Id., (emphasis added). Rule 501 of the Hawaii Rules of Evidence, now codi?ed as law in chapter 626 of the Hawaii Revised Statutes, provides that a privilege can arise from the United States 0 Constitution, the Hawaii Constitution, or by an Act of Congress or the Hawaii Legislature. The privilege at stake here is the right to prevent disclosure of private records. What makes this privilege unique and powerful is that, unlike that of the attorney-client privilege or others contained in the Hawaii Rules of Evidence, which are based upon common law, the right to informational privacy is a privilege grounded in our most fundamental document, the Hawaii Constitution. The Hawaii Constitution provides in relevant part that "[t]right of the people to privacy is recognized and shall not be infringed upon without the showing of a compelling state interest." Haw. Const. Art. I, 6. Very few matters are more private than the information contained in one's personnel and employment records. That such records fall within the parameters of the right of privacy accorded citizens of this State in Article I, Section 6 of the Hawaii Constitution cannot be doubted. Such protection afforded against otherwise relevant information is by no means a novel idea. For years, litigants and courts have respected the attorney-client privilege. The common law has long recognized that con?dential communications between an attorney and his client were privileged and not subject to discovery, even though the information sought to be discovered was highly material and relevant. In fact, such a privilege was subsequently codi?ed as law. See Rule 503 of the Hawaii Rules of Evidence. It is equally well-founded that "privileged" matters in general, even if of no constitutional import, falls outside the scope of discovery. Hawaii Rules of Civil Procedure (HRCP) 6 6 It is inconceivable to think that the attorney-client privilege, which is merely statutory or common law based, would bar disclosure of relevant material and could possibly enjoy pre-eminence over a privilege recognized by the Hawaii Constitution. The Constitutional Convention reported that it intended "to insure that privacy is treated as a fundamental right for the purposes of constitutional analysis." Comm. Whole Rep. No. 15, in 1 Proceedings of the Constitutional Convention of Hawaii of 1978, at 1024 (emphasis added). And "[p]rivacy as used in this sense," the Convention clarified, "concerns the possible abuses in the use of highly personal and intimate information in the hands of government or private parties." Id. (emphasis added). It was speci?cally contemplated that this right of privacy be considered fundamental, and extend to informational privacy, "the ability [of a person] to control the privacy of information about himself." Stand. Comm. Rep. No. 69, in 1 Proceedings of the Constitutional Convention of Hawaii of 1978, at 674. And it was contemplated that this privacy right be broad enough to even encompass information even in the hands of "private parties." This right of informational privacy is "so important in value to society that it can be infringed upon only by the showing of a compelling state interest." Id. at 675. And even after such a showing is made, "the State must use the least restrictive means should it desire to interfere with the right." Id. This privacy right is "separate and distinct" from the privacy protections found in Article I, Section 5 of the state Constitution. Section 5 is limited to the criminal area, whereas Section 6 relates to "privacy in the informational and personal autonomy sense". Id. at 674. 6 6 The Hawaii Supreme Court decided that this constitutional amendment extends to "informational" privacy. Nakano v. Matayoshi, 68 Haw. 140, 148, 706 P.2d 814, 818- 19 (1985). The [decisions of the United States Supreme Court] sometimes characterized as protecting 'privacy' have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions." Whalen v. Roe, 429 US. 589, 598-600 (1977) . . . We think the convention meant to protect the ?rst interest described above when it spoke of privacy in the "informational" sense. And we can only conclude from the committee reports cited earlier that the people of Hawaii have a legitimate expectation of privacy where their personal ?nancial affairs are concerned. Nakano v. Matayoshi, 68 Haw. 140, 148, 706 P.2d 814, 818-19 (1985) (emphasis added). See also, State v. Lester, 64 Haw. 659, 667, 649 P.2d 346, 353 (1982) (the right?to?privacy provision relates to privacy in the informational and personal autonomy sense, which encompasses ?the ability of a person to control the privacy of information about himself? and ?concerns the possible abuses in the use of highly personal and intimate information in the hands of government or private parties?). The Hawaii Supreme Court in Painting Industry of Hawaii Market Recovery Fund v. Alm, 69 Haw. 449, 746 P.2d 79 (1987) addressed the breadth of the protection afforded by Article I, Section 6 of the constitution, and concluded that this fundamental right of privacy extends to "employment records," among others. In discussing the Constitutional Convention?s statement that the term "privacy" in Article I, Section 6 "concerns the possible abuses in the use of highly personal and intimate information," it equated the phrase "highly personal and intimate" infomation with "?nancial, . Educational. or employment records." 69 Haw. at 453, 746 P.2d at 82 (emphasis added) The settlement agreement does not contain information that is ?highly personal and intimate," such as medical, financial, educational, or employment records. Id. In the case of Brende v. Hara, 113 Hawaii 424, 153 P.3d 1109 (2007), the Hawaii Supreme Court recognized that employment information is considered highly personal information protected by the constitutional right of privacy: ?[A]rticle I, Section 6 ?relates to privacy in the informational and personal autonomy sense.? State of Hawai?i Organization of Police Of?cers (SHOPO) v. Society of Professional Joumalists-University of Hawai ?i Chapter, 83 Hawai?i 378, 397, 927 P.2d 386, 405 (1996) (quoting Stand. Comm. Rep. No. 69 in Proceedings, at 674). ?[T]he privacy right protected by the ?informational privacy? prong of article I, section 6 is the right to keep confidential information which is ?highly personal and intimate.? Id. (quoting Comm. Whole Rep. No. 15 in Proceedings, at 1024 and citing Painting Industry of Hawaii Market Recovery Fund v. Alm, 69 Haw. 449, 746 P.2d 79 (1987)). ?Highly personal and intimate? information that is protected by the informational prong of article I, section 6 includes ?medical, ?nancial, educational, or employment records.? Painting Industry, 69 Haw. at 454, 746 P.2d at 82; State v. Malian, 86 Hawaii 440, 443 n. 4, 950 P.2d 178, 181 n. 4 (1998). 113 Hawaii at 430, 153 P.3d at 1115 (emphasis supplied). Courts in otherjurisdictions with similar constitutional provisions have held that that ?employment records? or ?personnel files? are constitutionally protected. In State ex rel. Crowden v. Dandurand, 970 340, 343 (Mo. 1998), the Supreme Court of Missouri held that mployees have a fundamental right of privacy in employment records.? (Citation omitted). 0 Similarly, in Flesh v. Board of Trustees of Joint School District Mineral and Missoula Counties, 786 P.2d 4, 8 (Mont. 1990), the Supreme Court of Montana held as follows: This Court has previously held employment records are subject to the state Constitutional right to privacy. ld. (Citation omitted). In Valley Presbyterian Hospital v. Superior Court, 94 Cal. Rptr. 2d 137, 141-42 (Cal. App. 2nd Dist. 2000), the Court stated that the class of clearly protected information under the state Constitutional right to privacy includes ?personnel records.? See also Board of Trustees of Leland Stanford Junior University v. Superior Court, 174 Cal. Rptr. 160, 165 (Cal. App. 1st Div. 1981). It should be pointed out that the right of privacy is endangered not by the keeping of records, but by their disclosure to third parties. inner, Privacy Of Employment Records In The Private Sector, 1986 Ann. Surv. of Am. L. 569, 586 (1987). II. THERE IS NO COMPELLING STATE INTEREST WHICH WOULD WARRANT INFRINGEMENT OF THE RIGHT TO PRIVACY The constitutional right of privacy may be infringed upon only when there is a "compelling state interest." Haw. Const., art. I, 6. ?[T]he interests of national security, law enforcement, the interests of the State to protect the lives of citizens or other similar interests will be strong enough to override the right to privacy." Stand. Comm. Rep. No. 69, in 1 Proceedings of the Constitutional Convention of Hawaii of 1978, at 675. In the case at bar, there is no compelling state interest warranting the deprivation of the plaintiff?s right to privacy in her employment records. It has been suggested that the task faced by the state of showing a compelling interest is, in most situations, an -9- impossible one. Clearly the delegates place a very high value on the right of privacy, and they forcefully indicated that the courts were to accord it every protection available under this most stringent standard of judicial review. Montana Human Rights Division v. City of Billings, 199 Mont. at 439, 649 P.2d at 1286 (quoting Gorman, Rights in Collision: The Individual Right of Privacy and the Public Right to Know, 39 Mont. L. Rev. 249, 251 (1978)). See Messerli v. State, 626 P.2d 81, 84 (Alaska 1980) (government must meet substantial burden of establishing that abridgment of right to privacy is justi?ed by a legitimate and compelling governmental interest). The fact that a news organization has a casual interest in the information sought does not rise to the level of a compelling state interest. Indeed, courts have found that the right of privacy is often stronger than the public right to know. Missoulian v. Board of Regents of Higher Education, 675 P.2d 962 (Mont. 1984); Trenton Times Corp. v. Board of Education, 138 N.J. Super. 357, 351 A.2d 30 (1976). THERE IS SUFFICIENT STATE ACTION IN THIS CASE. State action is implicated when an agency of the State, pursuant to a FOIA request that applies only to state agencies, proposes to take action to release information in its care and custody. IV. PLAINTIFF IS ENTITLED TO INJUNCTIVE RELIEF The test for granting or denying temporary injunctive relief is three-fold: (1) whether the plaintiff is likely to prevail on the merits; (2) whether the balance of irreparable damage favors the issuance of a temporary injunction; and (3) whether the public interest supports granting an injunction. Life of the Land v. An'yoshi, 59 Haw. 156, -10- 158, 577 P.2d 1116, 1118 (1978); see also Morgan v. Planning Dept?, 0f Kauai, 104 Hawaii 173, 86 P.3d 982 (2004). The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success. Thus, the appropriate test in Hawaii for determining whether a permanent injunction is proper is: (1) whether the plaintiff has prevailed on the merits; (2) whether the balance of irreparable damage favors the issuance of a permanent injunction; and (3) whether the public interest supports granting such an injunction. Of?ce of Hawaiian Affairs v. Hous. Cmty. Dev. Corp., 117 Haw. 174, 177 P.3d 884 (Haw. 2008) (rev?d on other grounds, Hawaii v. Office of Hawaiian Affairs, 556 US. 163, 129 S. Ct. 1436, 173 L. Ed. 2d 333, (US. 2009). However, as noted by the ICA in Penn v. Transportation Lease Hawaii, Ltd., 2 Haw. App. 272, 630 P.2d 646 (1981), "[t]he more the balance of irreparable damage favors issuance of the injunction, the less the party seeking the injunction has to show the likelihood of his success on the merits." Id. at 276, 630 P.2d at 650 (citations omitted). A. Plaintiff is Likely to Prevail On the Merits. The constitutional right to privacy in employment records is recognized as fundamental no compelling state interest can be shown to override this right. In addition to the disclosure of employment records is the fact that the proposed release of information will also result in disclosure of medical information pertaining to plaintiff's medical leave, because the detailed level of disclosure will allow any reviewer to ?reverse engineer? and calculate the leave time taken by plaintiff in any given period. -11- - . . a. *JWdQI-ia?m. r~u B. Plaintiff will Suffer Irreparable Harm. Public disclosure of highly personal and con?dential information, results in harm that is considered both substantial and irreversible. See Plante v. Gonzalez, 575 F.2d 1119, 1135 (5th Cir. 1978) ("when a legitimate expectation of privacy exists, violation of privacy is harmful without any concrete consequential damages"). The harm at issue here--disclosure of confidential information--is the quintessential type of irreparable harm justifying injunctive relief. See Hawaii Soc'y, 481 F. Supp. at 1052 (disclosure of highly personal information in ?les constitutes irreparable harm). Moreover, when a balancing of the harm tips decidedly toward the plaintiff, she need not show as substantial a likelihood of success on the merits. Similarly, where the probability of success on the merits is high, defendant need only show a mere ?possibility? of irreparable harm. lntemational Brotherhood of Boilermakers, etc. v. lntemational Brotherhood of Boilermakers, etc, 506 F. Supp. 1246, 1251, (D. Mont. 1981); Hawaii Society, District Branch of the American Ass'n v. Ariyoshi, 481 F. Supp. 1028 (D.Hawaii 1979). C. The Public Interest Supports Granting This Injunction Obviously, the protection of a citizen?s constitutional rights is a result in which the public has a strong and abiding interest. V. THE PRIVILEGE IS VIOLATED EVEN BY IN CAMERA INSPECTION. A privilege in con?dential information is violated even by an order compelling in camera disclosure. See Navedo v, Nichols, 650 15 (NY. AD. 1996) (court erred in ordering in camera inspection of privileged medical information); Baltimore City -12- nuwkh? *5 0 Police Dept. v. State, 857 A.2d 148, 156 (Md. App. 2004) (privilege protects against even in camera disclosure). Vi. CONCLUSION. For the reasons stated above, plaintiff respectfully prays that this Honorable Court issue preliminary and permanent injunction, prohibiting defendants from disclosing to Honolulu Civil Beat, or to anyone with a like pending freedom of information request for the same, any of plaintiff?s employment records. DATED: HONOLULU, HAWAII, May 23, 2017 A KEVIN P. H. ANTHONY L. WONG LANCE 8. AU Attorneys for Plaintiff m??Mu-t n. -13- . IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII KATHERINE KEALOHA, CIVIL NO. Plaintiff, DECLARATION OF KEVIN P.H. SUMIDA VS. CITY AND COUNTY OF and DEPARTMENT OF THE PROSECUTING ATTORNEY, Defendants. DECLARATION OF KEVIN P.H. SUMIDA STATE OF HAWAII ss. CITY AND COUNTY OF HONOLULU KEVIN P.H. SUMIDA, declares under penalty of perjury and says that: 1. He is an attorney duly licensed to practice in all courts in the State of Hawaii. 2. He is one of the attorneys for Plaintiff in the above-entitled case. 3. On Friday, May 19, 2017, your declarant was informed that the Honolulu Civil Beat, a purported news organization, made a Freedom of lnfonnation Act request for certain personnel records of plaintiff, and that a determination was made by defendants to produce to Civil Beat some of the records requested. 4. On that same day, your declarant wrote to the defendant the Department of the Prosecuting Attorney and noted, on plaintiff?s behalf, her strong objection to the disclosure of her personnel records, which are protected by the right of privacy embodied in the Hawaii State constitution. -14- 5. On that day, your declarant was informed that, notwithstanding plaintiffs objection, defendants were intending to turn over plaintiff?s employment records, to include her salary, leave time, resume, commendations, training information, information in an employment questionnaire stamped CONFIDENTIAL SUPPLEMENTAL QUESTIONS: with FOR INTERNAL USE certain university students interviewed by plaintiff, but not hired, by the defendant, and salary information broken down by month. 6. Your declarant informed Keith Kaneshiro, of the defendant Department of the Prosecuting Attorney, that plaintiff would be immediately seeking injunctive relief. He indicated that he understood. On Monday, May 22, 2017, your declarant also informed Corporation Counsel, through its deputy Corporation Counsel, Ernest Nomura, of plaintiffs intention to seek immediate injunctive relief. He indicated that he understood and was prepared for such action. Further declarant sayeth naught. I declare under penalty of law that the foregoing is true and correct. Executed in Honolulu, Hawaii, on May 23, 2017. Mad P.H. SUMIDA -15- IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII KATHERINE KEALOHA, NO. Plaintiff, NOTICE OF HEARING VS. CITY AND COUNTY OF and DEPARTMENT OF THE PROSECUTING ATTORNEY, Defendants. NOTICE OF HEARING TO: KEITH KANESHIRO, ESQ. ERNEST NOMURA, ESQ. Office of the Prosecuting Attorney Deputy Corporation Counsel 1060 Richards Street, 10th Floor 530 South King Street Honolulu, Hawaii 96813 Room 110 Honolulu, Hawaii 96813 PLEASE TAKE NOTICE that the undersigned will bring plaintiff?s MOTION FOR PRELIMINARY AND PERMANENT RELIEF, on for hearing before the Honorable Judge of the above-entitled Court, in his or her o'clock . m. on . 2017, or as soon courtroom in the Kaahumanu Hale, 777 Punchbowl Street, Honolulu, Hawaii, at I thereafter as counsel can be heard. DATED: HONOLULU, HAWAII, MAY 23 2017 i KEVIN P. H. SUMIDA ANTHONY L. WONG LANCE S. AU Attorneys for Plaintiff -16? IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII KATHERINE KEALOHA, Plaintiff, CERTIFICATE OF SERVICE VS. CITY AND COUNTY OF and DEPARTMENT OF THE PROSECUTING ATTORNEY, Defendants. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was duly served on the following attorney(s) by hand delivery, on this 073% day of Mg]! 2017: KEITH KANESHIRO, ESQ. Office of the Prosecuting Attorney 1060 Richards'Street, 10th Floor Honolulu, Hawaii 96813 ERNEST NOMURA, ESQ. Deputy Corporation Counsel 530 South King Street Room 110 Honolulu, Hawaii 96813 DATED: HONOLULU, HAWAII, 2 3 2017 KEVIN P. H. SUMIDA ANTHONY L. WONG LANCE 8. AU Attorneys for Plaint'rff -17-