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Electronically Filed Supreme Court SCPW-XX-XXXXXXX 04-AUG-2025 10:04 AM Dkt. 111 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
Case No. 21908
STATE OF HAWAIʻI, Plaintiff-Appellee,
vs.
JEROME ROGAN, Defendant-Appellant.
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SCPW-XX-XXXXXXX
NICK GRUBE, Petitioner,
THE HONORABLE ROM A. TRADER, Judge of the Circuit Court of the First Circuit, State of Hawaiʻi, Respondent Judge,
and
STATE OF HAWAIʻI; ALAN AHN; and TIFFANY MASUNAGA, Respondents.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (1PC970001153) AND ORIGINAL PROCEEDING (CASE NO. 1PC151001338) *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
AUGUST 4, 2025
RECKTENWALD, C.J., McKENNA, EDDINS, AND GINOZA, JJ., AND CIRCUIT JUDGE VIOLA, IN PLACE OF DEVENS, J., RECUSED
OPINION OF THE COURT BY EDDINS, J.
Courts must “seal or otherwise remove” all records
pertaining to a qualifying person’s “judiciary files” from the
“judiciary’s publicly accessible electronic databases.” Hawaiʻi
Revised Statutes (HRS) § 831-3.2(f) (2014 & Supp. 2024).
HRS § 831-3.2(f) recognizes privacy and restorative
interests for those arrested for, or charged with, but not
convicted of a crime, those wrongly convicted, and those who
have had a charge dismissed following a deferred acceptance of a
guilty or no contest plea.
Jerome Rogan qualified “to seal or otherwise remove” his
court records because his case ended without conviction. Alan
Ahn qualified because a court granted a deferred acceptance of
his no contest plea, and later per HRS § 853-1 (2014), the
charges against him were dismissed.
Rogan and Ahn ask this court to seal their cases. Both had
received expungement certificates from the Department of the
Attorney General.
Nick Grube objects to Ahn’s request.
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We consolidated Rogan’s and Ahn’s cases and invited
briefing from the Department of the Attorney General and the
Office of the Public Defender.
HRS § 831-3.2(f)’s “seal or otherwise remove” language
gives a court two choices. The court may remove the pertinent
judicial files from the “judiciary’s publicly accessible
electronic databases” or it may seal the records. Because
sealing impacts the Hawaiʻi Constitution’s article I, section 4
right to public access, a court must comply with procedural and
substantive measures if it decides to seal.
We hold that Rogan’s and Ahn’s judicial records must be
removed from eCourt Kōkua, the judiciary’s publicly accessible
electronic database, but the judicial records must remain
publicly accessible for in-person review at the courthouse.
I.
We start with HRS § 831-3.2, titled “Expungement orders.”
HRS § 831-3.2 promotes privacy and restorative interests by
avoiding the substantial effects disclosure of records may have
on a person’s employment, housing, lending, and educational
options. See 2023 Haw. Sess. Laws Act 159, § 1 at 478 (amending
HRS § 831-3.2(f) and identifying these interests in the
preamble).
Hawaiʻi has a simple path to expungement relief. Per HRS
§ 831-3.2, expungement is available to those (1) “arrested for,
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or charged with but not convicted of a crime”; (2) “found
eligible for redress under [HRS] chapter 661B”; or (3) who had a
charge dismissed after a deferred acceptance of a guilty or no
contest plea. HRS § 831-3.2(a); HRS chapter 661B; and HRS
§ 853-1(e).
Eligible persons may submit a “written application” to the
attorney general or the attorney general’s authorized
representative to obtain an expungement order. HRS § 831-
3.2(a). The Department of the Attorney General must then “issue
an expungement order annulling, canceling, and rescinding the
record of arrest.” Id. The expungement order prompts county
and state law enforcement agencies to forward the person’s
arrest records to the attorney general for placement in a
“confidential file.” HRS § 831-3.2(c). It also induces the
attorney general or their authorized representative (Hawaiʻi
Criminal Justice Data Center) to issue a certificate that allows
the person to represent they have “no record regarding the
specific arrest.” HRS § 831-3.2(e).
The legislature added subsection (f) to HRS § 831-3.2 in
2016. The expungement statute no longer related to only arrest
records. A person with an expungement order could now ask the
court to “seal or otherwise remove all judiciary files”
associated with the arrest:
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(f) Any person for whom an expungement order has been entered may request in writing that the court seal or otherwise remove all judiciary files and other information pertaining to the applicable arrest or case from the judiciary’s publicly accessible electronic databases. The court shall make good faith diligent efforts to seal or otherwise remove the applicable files and information within a reasonable time.
2016 Haw. Sess. Laws Act 231, § 66 at 772-73.
Act 231 amended several laws related to criminal
prosecution recommended by the Penal Code Review Committee.
2016 Haw. Sess. Laws Act 231, § 1 at 733-34. In 2015, pursuant
to House Concurrent Resolution No. 155, the Penal Code Review
Committee convened to review and provide recommended revisions
to the Hawaiʻi Penal Code. Penal Code Review Committee, Report
of the Committee to Review and Recommend Revisions to the Hawaiʻi
Penal Code 1 (Dec. 30, 2015), https://www.courts.
state.hi.us/docs/news_and_reports_docs/2015_PENAL_CODE_REVIEW_RE
PORT-FINAL-12-30-15.pdf [https://perma.cc/5G9R-FPVH] (2015 Penal
Review Report); H.C.R. No. 155, S.D. 1, 28th Leg., Reg. Sess.
(2015).
As to HRS § 831-3.2, the Committee proposed amendments “so
that persons who have obtained an expungement order may request
in writing that the court seal or remove judiciary files or
judiciary information from public access, including from the
judiciary’s electronic databases.” 2015 Penal Review Report at
10. The legislature rejected that approach. Compare 2015 Penal
Review Report at 73 (“seal or otherwise remove all judiciary
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files and other information relating to the expunged offense,
including from the judiciary’s electronic databases, from public
access”) (emphasis added), with 2016 Haw. Sess. Laws Act 231,
§ 66 at 772-73 (“seal or otherwise remove all judiciary files
and other information pertaining to the applicable arrest or
case from the judiciary’s publicly accessible electronic
databases”).
In 2023, the legislature revised HRS § 831-3.2(f).
Effective July 1, 2025, the law now mandates that the judiciary
seal or otherwise remove the case records for anyone with an
expungement order. Requests for relief are no longer necessary.
2023 Haw. Sess. Laws Act 159, §§ 2, 4 at 478 (“The court shall
seal or otherwise remove from the judiciary’s publicly
accessible electronic databases all judiciary files and other
information pertaining to the applicable arrest or case of any
person for whom an expungement order listing the court case
number has been entered and transmitted to the court.”).
In 2025, the legislature amended HRS § 831-3.2(f) again.
It gives the Hawaiʻi Criminal Justice Data Center the authority
to transmit expungement orders to the judiciary. Act 3, H.B.
145, H.D. 1, § 1 (signed Apr. 10, 2025). The amendment also
provided that the “court’s duties” do not apply “where the
person for whom the order has been entered[] . . . [i]s only one
of multiple defendants in the case at least one of whom has not
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been the subject of a prior expungement order.” Id. at § 2.
Citing HRS § 831-3.2, Jerome Rogan and Alan Ahn (Movants),
both self-represented, filed letters with this court requesting
to seal their case files. Those court records include
frequently cited opinions. State v. Rogan, 91 Hawaiʻi 405, 984
P.2d 1231 (1999); Grube v. Trader, 142 Hawaiʻi 412, 420 P.3d 343
(2018) (Grube I).
Rogan’s case is straightforward. In 1998, a jury found him
guilty of four counts of sexual assault in the third degree.
This court reversed Rogan’s conviction. Prosecutorial
misconduct tainted the case. It was so egregious that Hawaiʻi’s
double jeopardy clause, article I, section 10, prevented re-
trial. Our courts and litigants have repeatedly cited Rogan.
See State v. Hirata, 152 Hawaiʻi 27, 36 n.18, 520 P.3d 225, 234
n.18 (2022) (“From this point on, for appeals that allege
prosecutorial misconduct, the briefs do not need to address the
double jeopardy issue first identified in State v. Rogan[.]”).
Because he was “not convicted of a crime,” Rogan requested and
received an expungement order. See HRS § 831-3.2(a).
Ahn’s case has more procedural complexity. In 2015, a
grand jury indicted Ahn, a former Honolulu police officer, and
his girlfriend with drug-related crimes. Grube I, 142 Hawaiʻi at
418, 420 P.3d at 349. During the case, the circuit court sealed
records pertaining to a closed hearing. Id.
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Petitioner Nick Grube moved to unseal those records. The
circuit court denied his motion. Id. at 419-21, 420 P.3d at
350-52. Grube filed writs of mandamus and prohibition, asking
this court to unseal the records. Id. at 421, 420 P.3d at 352.
Grube prevailed. We ordered the circuit court to unseal
the records. Id. at 429, 420 P.3d at 360. “[T]he public has a
constitutional right of access to criminal proceedings
generally, as well as the records thereof.” Id. at 422, 420
P.3d at 353. Courts often cite to Ahn’s case, Grube I, for the
procedural and substantive requirements for closing courtrooms
and sealing court records. See, e.g., Roy v. Gov’t Emps. Ins.
Co., 152 Hawaiʻi 225, 232-34, 524 P.3d 1249, 1256-58 (App. 2023).
Eventually, Ahn pled no contest and resolved his criminal
case. At sentencing he moved to defer his plea. The court
denied that request. Later, Ahn moved to reconsider. The court
did. It granted his motion and deferred his plea. HRS § 853-
1(a). In 2021, the circuit court discharged Ahn and dismissed
the charges against him. See HRS § 853-1(c). Then, because he
had a charge dismissed after a deferred acceptance of a guilty
or no contest plea, Ahn requested and received an expungement
order. See HRS § 831-3.2(a); HRS § 853-1(e).
Rogan and Ahn have moved to seal all their case records.
Rogan sent this court a letter requesting that, per HRS
§ 831-3.2, the judiciary seal his case, “dissociate[] [his name]
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from future judicial research,” and “redact[]” his name from
“everything.”
Ahn mailed a letter to the circuit court requesting that
his court records be sealed. At a hearing with Ahn’s counsel,
co-defendant’s counsel, and the deputy attorney general, the
circuit court proposed creating separate case files so Ahn’s
case file could be sealed, while his co-defendant’s case file
remained accessible. No party objected.
Ahn then mailed a letter to this court: “I am writing to
request that all my court records be sealed” per HRS § 831-
3.2(f).
Years after this court decided Grube I, Ahn and Grube’s
legal clash rekindles. After Ahn asked this court to seal,
Grube filed a position statement. The court should “interpret
HRS § 831-3.2(f) narrowly to avoid infringing on the public’s
constitutional right of access and the Judiciary’s authority to
administer its own records and procedures.” Ahn’s position,
Grube warned, “raises serious constitutional concerns.”
We treated the letters to this court from the self-
represented Rogan and Ahn as motions and consolidated the cases.
Then we invited the Office of the Public Defender and the
Department of the Attorney General (Amici) to submit amicus
briefs. They did. For Grube, the Public First Law Center
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(formerly the Civil Beat Law Center for the Public Interest)
responded to those briefs.
Per our order, Amici and the Public First Law Center
addressed:
(1) Whether sealing the entire case file under HRS § 831- 3.2(f) violates the public’s right of access under the first amendment of the U.S. Constitution and/or article I, section 4 of the Hawaiʻi Constitution;
(2) whether narrower remedies are available, short of a total sealing, that would protect the interests advanced by HRS § 831-3.2(f), and if so, what are those remedies; and,
(3) the extent, if any, HRS § 831-3.2(f) encroaches on the Judiciary’s independence and power to administer its own records. See generally Haw. Const. art. VI, §§ 1, 7; HRS §§ 601-5 (2016), 602-5.5 (2016).
II.
A. HRS § 831-3.2(f) contemplates alternatives to sealing
HRS § 831-3.2(f) commands a court to “seal or otherwise
remove all judiciary files and other information pertaining to
the applicable arrest or case from the judiciary’s publicly
accessible electronic databases.”
The Office of the Public Defender (OPD) argues that HRS
§ 831-3.2(f) requires the total sealing of judiciary files with
no judicial review. As OPD puts it, HRS § 831-3.2(f) provides
“[n]o other option” to sealing the case records.
The Department of the Attorney General takes the same
position in its supplemental briefing: “sealing case files under
HRS § 831-3.2(f) does not violate the public’s right of access,”
so the court does not need to consider “whether narrower
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remedies, short of total sealing, are available.” “The Court
should apply the statute as written and grant the motions.”
Grube maintains that the law allows remedies short of total
sealing. Otherwise, he says, HRS § 831-3.2(f) violates the
public’s article I, section 4 right to access court records.
Grube is right.
Statutory interpretation begins with the law’s words.
Alpha, Inc. v. Bd. of Water Supply, 154 Hawaiʻi 486, 490–91, 555
P.3d 173, 177–78 (2024). Ambiguity arises when there is more
than one plausible textual meaning. Id. To clarify ambiguity,
we consider sources outside the text, such as legislative
history and the purpose and spirit of the law. Id. at 491, 555
P.3d at 178. Statutory construction doctrines may also aid us.
Id.
HRS § 831-3.2(f) reads, “seal or otherwise remove[.]”
(emphasis added). The import of the word “or” is clear. It is
a disjunctive that signals an alternative. See State v. Kalani,
108 Hawaiʻi 279, 284, 118 P.3d 1222, 1227 (2005). The statute
does not require sealing. There’s another option – “remove” the
judicial records from the “judiciary’s publicly accessible
electronic databases.”
It is also clear that the “judiciary’s publicly accessible
electronic databases” refers to eCourt Kōkua, as it is the only
database that matches the criteria. Neither the Judiciary
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Information Management System (JIMS) nor the Judiciary
Electronic Filing and Service System (JEFS) is publicly
accessible. JIMS is for court staff only; JEFS is for
registered parties, attorneys, and staff. Generalized access
routes through eCourt Kōkua. This leaves eCourt Kōkua as the
only publicly accessible electronic database.
But the statute is unclear as to its definition of
“otherwise remove.” See HRS § 831-3.2. “Remove” means to
“change the location, position, station, or residence of” or
“eliminate” or “get rid of.” Remove, Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/remove
[https://perma.cc/M8SD-HARX].
Did the legislature intend “otherwise remove” to mean the
equivalent of a total seal such that the public has no knowledge
about a case’s existence? Or did the legislature intend to
limit online access while allowing the public on-site access?
After all, records from non-confidential case files are not only
available from the judiciary’s publicly accessible electronic
database, but are available on-site at courthouses across the
state. See Hawaiʻi Electronic Filing and Service Rules Rule 1
(eff. 2010) (defining the Judiciary Information Management
System (JIMS) and the electronic filing system within JIMS),
Rule 11.1 (eff. 2010) (requiring the clerk to provide the public
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with on-site access to the dockets and documents of non-
confidential cases maintained in JIMS).
Given the statute’s ambiguity, we turn to the legislative
history. Alpha, 154 Hawaiʻi at 491, 555 P.3d at 178.
The legislature did not mention subsection (f)’s purpose
when it grafted it to Hawaiʻi’s expungement statute in 2016. See
2016 Haw. Sess. Laws Act 231, § 1 at 734; Conf. Comm. Rep. No.
138-16, in 2016 House Journal, at 1399, in 2016 Senate Journal,
at 824-25. The 2023 Legislature, though, offered context. It
expressed a restorative purpose to HRS § 831-3.2(f), one
designed to forestall the long-lasting aftershocks posed by easy
online access to court records. The legislature identified
adverse impacts to employment, housing, lending, and educational
opportunities. See 2023 Haw. Sess. Laws Act 159, § 1 (amending
the law and identifying these interests in the preamble).
Neither the 2016 Legislature nor the 2023 Legislature
adopted the 2015 Penal Code Review Committee’s recommendation to
prohibit all public access under subsection (f). Compare 2015
Penal Review Report at 73, with 2016 Haw. Sess. Laws Act 231,
§ 66 at 772-73, and 2023 Haw. Sess. Laws Act 159, § 2 at 478.
Where the adopted law deviates from the recommendation, “all
changes in words and phraseology will be presumed to have been
made deliberately and with a purpose to limit, qualify or
enlarge the adopted law to the extent that the changes in words
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and phrases imply.” See Levy v. Kimball, 51 Haw. 540, 544-45,
465 P.2d 580, 583 (1970).
The differences between the proposed language and the
adopted language suggest the legislature had no intent to
require automatic sealing under subsection (f). The legislature
could have written the statute to remove all public access to
the files, like the Committee recommended. It also could have
written the statute to say “seal all judiciary files.” But it
did neither. Instead, it used the words “otherwise remove,”
suggesting removal is a narrower remedy than total sealing. The
softened language implies the legislature did not intend HRS
§ 831-3.2(f) to have the broad sweep Amici claim.
This interpretation is also supported by the doctrine of
constitutional doubt. “The doctrine of constitutional doubt, a
well-settled canon of statutory construction, counsels that
where a statute is susceptible of two constructions, by one of
which grave and doubtful constitutional questions arise and by
the other of which such questions are avoided, our duty is to
adopt the latter.” Morita v. Gorak, 145 Hawaiʻi 385, 391, 453
P.3d 205, 211 (2019) (cleaned up).
Interpreting “otherwise remove” as synonymous with sealing
raises constitutional questions. Under that interpretation,
sealing is required. There’s no other option.
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But in that case, HRS § 831-3.2(f) necessarily invokes the
Applying the doctrine of constitutional doubt, we interpret
“otherwise remove” as a narrower remedy, short of sealing, that
is available under the statute. This construction of “otherwise
remove” paves a way to avoid the constitutional questions raised
by the other construction. And it still protects Rogan’s and
Ahn’s interests.
Thus, the options are to either seal the judicial records
or remove them from eCourt Kōkua. While “otherwise remove”
remains ill-defined, the central point is that it encompasses a
remedy short of sealing.
We hold that HRS § 831-3.2(f) offers options to (1) seal or
(2) remove judicial records from eCourt Kōkua.
But this construction of the statute does not avoid article
I, section 4 questions entirely. Because sealing is one option
under the statute, we must determine whether the article I,
section 4 public right of access attaches to expunged judicial
records in criminal proceedings, and, if so, impart guidance on
procedural and substantive safeguards.
Next, we turn to the first constitutional concern raised by
the total and automatic sealing of judicial records: whether
such sealing defies the public’s right of access under article
I, section 4 of the Hawaiʻi Constitution.
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B. Automatic sealing under HRS § 831-3.2(f) implicates the public’s right of access to court records under article I, section 4 of the Hawaiʻi Constitution
Amici both contend that automatically sealing judicial
records is constitutional.
Grube takes the opposite position. He believes blanket
sealing violates the public’s article I, section 4 right to
access court records.
The Hawaiʻi Constitution provides that no law shall be
enacted “abridging the freedom of speech or of the press[.]”
Haw. Const. art. I, § 4.
When interpreting article I, section 4, this court
“considers” the U.S. Supreme Court’s First Amendment
jurisprudence. Oahu Publ’ns Inc. v. Ahn, 133 Hawaiʻi 482, 494,
331 P.3d 460, 472 (2014). But like all our state constitutional
provisions with federal counterparts, we independently interpret
the Hawaiʻi Constitution. Otherwise, we dishonor our
constitution and overlook federalism principles. State v.
Wilson, 154 Hawaiʻi 8, 14, 543 P.3d 440, 446 (2024) (“Hawaiʻi’s
people are entitled to an independent interpretation of State
constitutional guarantees. . . . That means this court, not the
U.S. Supreme Court, drives interpretation of the Hawaiʻi
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Constitution. If we ignore this duty, we fail to live up to our
oath to defend Hawaiʻi’s Constitution.”) (cleaned up).
Here, there is no U.S. Supreme Court case to consider. The
Supreme Court has not decided a case involving the First
Amendment’s right of public access to court records where a
prosecution ended without conviction and a former defendant
wants to seal all case records.
Article I, section 4 of the Hawaiʻi Constitution grants the
public “a constitutional right of access to criminal proceedings
generally, as well as the records thereof.” Grube I, 142 Hawaiʻi
at 422, 420 P.3d at 353. See also Oahu Publ’ns, 133 Hawaiʻi at
506-07, 331 P.3d at 484-85. This right “inheres in every member
of the public” such that individuals may challenge sealings.
Grube I, 142 Hawaiʻi at 417, 420 P.3d at 348. And it aligns with
our state’s “deeply ingrained traditional mistrust [of] secret
trials.” Id. at 422, 420 P.3d at 353 (cleaned up).
Hawaiʻi has a rich history of public access to court
proceedings, dating to the 1820s. Sally Engle Merry, Colonizing
Hawaiʻi: The Cultural Power of Law 70 (2000) (“A second major
change in the system of law and legal procedure in the 1820s was
the use of public trials by jury[.]”). At the end of the 19th
century, Queen Liliʻuokalani recounted that, during her 1895
trial by military tribunal, the courtroom was “crowded with
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curious spectators” including “a liberal representation from all
classes.” Liliʻuokalani, Hawaiʻi’s Story by Hawaiʻi’s Queen 279
(1898).
Decades later, the Massie trial drew nationwide attention
and regularly attracted a full courtroom. See Russell Owen,
Massie Jury Is Out, N.Y. Times, Apr. 28, 1932, at 1 (“It seemed
that everyone in Honolulu wanted to enter the trial room this
morning.”); Russell Owen, Massie Takes Blame in Hawaiian Murder,
N.Y. Times, Apr. 17, 1932, at 1 (“The entire roomful of
spectators sat forward on their seats, oblivious to the heat and
the discomfort of their crowded quarters[.]”).
For sure, history and tradition alone do not drive the
spirit of openness that animates article I, section 4. “The
Hawaiʻi Supreme Court values history and tradition to aid
statutory and constitutional interpretation. But unlike the
United States Supreme Court, we do not subscribe to an
interpretive theory that nothing else matters.” Wilson, 154
Hawaiʻi at 23, 543 P.3d at 455 (internal citations omitted).
Open courtrooms and accessible records are structural
features of our judicial system. The public’s ability to watch
court cases and check court records advances societal interests,
like promoting transparency, ensuring fairness and
accountability, enabling informed public discussion, and
preserving the integrity of the judicial process. Grube I, 142
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Hawaiʻi at 422, 420 P.3d at 353 (article I, section 4 serves as a
“safeguard of the integrity” of the judicial system); Oahu
Publ’ns, 133 Hawaiʻi at 502, 331 P.3d at 480 (open courts offer
an “assurance that the proceedings were conducted fairly to all
concerned thereby promoting a perception of fairness”) (cleaned
up).
The judicial system gains from public access. Because
court proceedings are open for all to see, and court records are
available for all to read, a transparent approach instills
confidence in, and respect for, the judiciary’s work. Id.
(citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 594
(1980) (Brennan, J., concurring)).
Open proceedings curb misconduct. Since all participants
are exposed to public scrutiny, accountability increases and
injustice recedes. Id. (citing Richmond Newspapers, 448 U.S. at
569 (plurality opinion)); see also Times Mirror Co. v. U.S., 873
F.2d 1210, 1213 (9th Cir. 1989) (“[A] better-informed
citizenry . . . tends to deter government officials from abusing
the powers of government.”). On the flip side, closed hearings
and sealed records may hide prosecutorial or judicial misconduct
from public view.
Amici argue that the presumptive right of public access
expires when a case has a no conviction outcome. They say
Commonwealth v. Pon, 14 N.E.3d 182 (Mass. 2014) supports the
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idea that any benefits of openness are significantly diminished
after a case ends.
But societal interests in open proceedings persist even
after a criminal case ends. See Globe Newspaper Co. v. Pokaski,
868 F.2d 497, 503-04 (1st Cir. 1989). This court has often
explained the right of public access continues after a case’s
conclusion. See Gannett Pac. Corp. v. Richardson, 59 Haw. 224,
235, 580 P.2d 49, 57 (1978) (“[A] complete record of those parts
of the proceedings closed to the public shall be kept and made
available to the public for a legitimate and proper purpose
following the completion of trial or disposition of the case
without trial.”); Oahu Publ’ns, 133 Hawaiʻi at 507, 331 P.3d at
485 (stating that the public’s qualified right of access to a
transcript of closed proceedings persists even after the trial
is completed); Grube I, 142 Hawaiʻi at 422, 420 P.3d at 353
(holding that the public has “a constitutional right of access
to criminal proceedings generally, as well as the records
thereof”) (emphasis added).
Time does not determine whether a right of public access
exists. Whether a proceeding is ongoing, concluded yesterday,
or ended eighty years ago, is not decisive. Societal interests
can endure. See, e.g., Korematsu v. United States, 323 U.S. 214
(1944); Korematsu v. United States, 584 F.Supp. 1406 (N.D. Cal.
1984).
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For a right of public access to attach, the focus centers
on the nature of the proceedings, not simply when a person makes
a request to seal. See Globe Newspaper Co. v. Super. Ct. for
Norfolk Cnty., 457 U.S. 596, 605 n.13 (1982) (explaining that
the court must evaluate the State’s interest in restricting
access to a criminal proceeding which is presumptively open).
For example, outside criminal proceedings, the right of public
access may not attach. See, e.g., HRS §§ 346-45(a) (2015)
(limiting those who may inspect family court records of adult
protective proceedings); 571-84(a) (2018 & Supp. 2019)
(mandating that certain family court records be withheld from
public inspection); 571-84.6(b) (2018) (same, and providing that
other family court records be presumptively open for public
inspection).
But here, because the public has a presumptive right of
access to criminal proceedings, the public does not forfeit its
constitutional right to access the records of those proceedings
when a defendant is not convicted. See Pokaski, 868 F.2d at
507-09.
We hold that under article I, section 4 of the Hawaiʻi
Constitution, the public maintains a presumptive right of public
access to a criminal case’s judicial records where the defendant
was not convicted and obtained an expungement of their records.
See Grube I, 142 Hawaiʻi at 422, 420 P.3d at 353. Where the
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right of public access attaches, automatic restrictions on that
right are constitutionally unsound. See id. See also Pokaski,
868 F.2d at 505-06.
Thus, nothing has changed. If Rogan and Ahn want to seal
their cases, they must satisfy the procedural and substantive
requirements article I, section 4 commands. See Oahu Publ’ns,
133 Hawaiʻi at 497, 331 P.3d at 475; Grube I, 142 Hawaiʻi at 423,
420 P.3d at 354.
Next, we examine this framework.
C. The public’s right of access to court records is not absolute
The public’s article I, section 4 constitutional right to
enter criminal courtrooms and review judicial records is not
absolute. Oahu Publ’ns, 133 Hawaiʻi at 496, 331 P.3d at 474.
The right of public access may be overcome in limited
circumstances — situations where closure or sealing is necessary
to protect an interest that outweighs the importance of public
access. Grube I, 142 Hawaiʻi at 423, 420 P.3d at 354. Courts
decide on a case-by-case basis: “individualized determinations
are always required before the right of access may be denied.”
Globe Newspaper Co., 457 U.S. at 608 n.20.
To overcome the presumption of public access, procedural
and substantive requirements must be met. Grube I, 142 Hawaiʻi
at 423, 420 P.3d at 354. The procedural requirements are (1)
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those objecting to sealing must be given a reasonable
opportunity to be heard; and (2) the reasons that support
sealing must be articulated in findings. See id.
Here, the procedural requirements are not in play.
Petitioner Grube has been heard. We turn to the substantive
requirements. Grube says Ahn “has not satisfied the
constitutional standards to seal this matter.”
1. The substantive requirements to seal judicial records
The substantive test that a court uses to address a request
to seal court records involves whether (1) the sealing serves a
compelling interest that overcomes the right of public access to
the records; (2) there is a substantial probability that this
interest would be harmed absent the closure or sealing; and (3)
there are no alternatives to closure or sealing that would
adequately protect the compelling interest. See Grube I, 142
Hawaiʻi at 424, 420 P.3d at 355 (citing Oahu Publ’ns, 133 Hawaiʻi
at 497–98, 331 P.3d at 475–76).
a. Compelling interest for sealing judicial records
The compelling interest must be “an overriding interest” to
the public’s right of access, and the court must find that
“closure is essential to preserve” the higher values underlying
this compelling interest and “is narrowly tailored to serve that
interest.” Oahu Publ’ns, 133 Hawaiʻi at 496–97, 331 P.3d at 474–
75.
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While a privacy interest may often prove compelling, the
interest must be sufficiently consequential to “outweigh both
the right of access of individual members of the public and the
general benefits to public administration” granted by access to
judicial records. See Grube I, 142 Hawaiʻi at 425, 420 P.3d at
356.
Where a defendant has obtained an expungement order from
the attorney general, the privacy and restorative interests are
usually important enough to override the public’s right of
access. But before a court seals judicial records, there must
be individualized attention.
Here, sealing Rogan’s and Ahn’s records serves compelling
privacy and restorative interests. Society benefits when a
person is afforded a certain measure of privacy. Privacy grants
a person the liberty to explore opportunities without the stigma
attached to their judicial records. Hawaiʻi’s people value
fairness, kindness, and forgiveness. See HRS § 5-7.5(a) (2009).
Through HRS § 831-3.2(f), the legislature has expressed the
importance of privacy and restorative interests. That law has a
laudable remedy. Easy access to judicial records may harm a
person charged but not convicted of a crime. HRS § 831-3.2(f)
curbs one-click access to judicial records for a good reason -
to ease the adverse societal impacts for a person whose case
ended without conviction.
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Here though, we find these compelling interests do not
overcome the public’s constitutional right of access.
First, in most cases that qualify for HRS § 831-3.2(f)
relief, public interest is slight. Our two cases, however, are
far from routine. Both resulted in published opinions. Courts,
including this one, have frequently cited them.
Second, the cases are different from other cases in which
this court has recognized privacy rights. Rogan’s and Ahn’s
privacy interests diverge from the privacy rights this court has
recognized, like those involving medical and financial records.
See Brende v. Hara, 113 Hawaiʻi 424, 430, 153 P.3d 1109, 1115
(2007). Medical and financial records have privacy protections.
See id. (medical and financial records are “‘highly personal and
intimate’ information” protected from public disclosure by the
informational prong of article I, section 6 of the Hawaiʻi
Constitution).
The judicial records here are public. Do court events, and
the records that shape them, vanish due to HRS § 831-3.2?
No. The presumption of openness is strong. It is even
stronger in cases of public importance. It defies the
principles that fortify the right of public access —
accountability, transparency, and the integrity of the criminal
justice system — to automatically seal once-accessible judicial
records, and thereby erase history and the public record.
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For these reasons, Rogan’s and Ahn’s privacy and
restorative interests are not compelling enough to overcome the
public right to access their judicial records.
b. Substantial probability of damage
To satisfy the second substantive requirement, “a court
must find that disclosure is sufficiently likely to result in
irreparable damage to the identified compelling interest.” Grube
I, 142 Hawaiʻi at 426, 420 P.3d at 357. “[T]here must be a
‘substantial probability’ that disclosure will harm the asserted
interest.” Id. (quoting Press-Enter. Co. v. Super. Ct. of Cal.
for Riverside Cnty., 478 U.S. 1, 15 (1986)). Further, the
potential damage “cannot be fleeting or readily curable through
remedial measures; it must be irreparable in nature.” Id.
(citations omitted).
We accept that, like most cases under HRS § 831-3.2(f),
there is a substantial probability that disclosure of Movants’
case files will harm their respective privacy interests.
Movants satisfy the second substantive requirement for
sealing.
c. Narrow tailoring
Rogan and Ahn do not meet the third substantive
requirement.
To satisfy that requirement to seal, a court must find
“there are no [less restrictive] alternatives” that would
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“adequately protect the compelling interest.” Id. at 427, 420
P.3d at 358; see also Pokaski, 868 F.2d at 506 (explaining that
courts must determine whether the state has selected the “least
restrictive means of promoting its objective”). Where there is
a feasible alternative to total sealing that would both protect
the right of public access and the compelling interest, courts
must choose that alternative. Grube I, 142 Hawaiʻi at 427, 420
P.3d at 358 (citing United States v. Brooklier, 685 F.2d 1162,
1172 (9th Cir. 1982)).
OPD maintains there is no alternative to total sealing.
Grube counters that there are less restrictive
alternatives to sealing that would adequately protect the
Movants’ interests.
We conclude there are narrower remedies available that
protect Rogan’s and Ahn’s interests, such as removing their
respective judicial records from eCourt Kōkua. Thus, Movants
fail to satisfy the third substantive requirement for sealing.
Next, we discuss a constitutional rationale separate from
article I, section 4 that forecloses automatic sealing of
criminal case records.
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D. The separation of powers doctrine gives this court control over judicial records
We hold that HRS § 831-3.2(f) encroaches on the judiciary’s
independence and power to administer its own records.
The Hawaiʻi Constitution vests judicial power with the
courts. Haw. Const. art. VI, § 1. Article VI, section 7 gives
this court the “power to promulgate rules and regulations in all
civil and criminal cases for all courts relating to process,
practice, procedure and appeals, which shall have the force and
effect of law.” Haw. Const. art. VI, § 7.
Judicial power extends to procedural responsibilities such
as control over judicial records. See In re Dorothy D. v. New
York City Prob. Dep’t, 400 N.E.2d 1342, 1343 (N.Y. 1980) (noting
that courts possess the power to control records of their own
proceedings).
HRS §§ 601-5 (2016) and 602-5.5 (2016) set forth the
statutory framework further fortifying the independence of the
judiciary and the power of this court to determine the custody
of all judicial files. HRS § 602-5.5 grants this court the
statutory authority to “determine whether, and the extent to
which, the judiciary, will create, accept, retain, or store in
electronic form any case, fiscal, and administrative records and
convert written case, fiscal, and administrative records to
electronic records.”
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HRS § 602-5.5’s legislative history evinces a law crafted
with separation of powers principles in mind. The judiciary has
the exclusive responsibility to maintain judicial records. S.
Stand. Comm. Rep. No. 1542, in 1997 Senate Journal, at 1477
(“Your Committee finds that as a separate and co-equal branch of
government, the Judiciary should have the exclusive
responsibility for maintaining its records.”) (emphasis added).
The legislative history also reveals the intent to give this
court “complete authority to promulgate rules for the use,
retention, and destruction of all judiciary records.” H. Stand.
Comm. Rep. No. 340, in 1997 House Journal, at 1242 (emphasis
added).
Thus, the statutory framework governing judicial records
aligns with this court’s constitutional authority over judicial
records under article VI, section 7.
Separation of powers concerns arise when one branch of
government interferes with another’s authority. No single
constitutional provision defines the separation of powers
doctrine. Alakaʻi Na Keiki, Inc. v. Matayoshi, 127 Hawaiʻi 263,
275, 277 P.3d 988, 1000 (2012). But in Hawaiʻi, this court
recognizes the “sovereign power is divided and allocated among
three co-equal branches.” Id.
The Department of the Attorney General claims there is no
separation of powers issue because the legislature and the
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judiciary have jointly governed the administration of court
records throughout Hawaiʻi’s history. It says that the
legislature has long mandated limitations on access to certain
types of court records, so there’s no intrusion. See, e.g., HRS
§§ 346-45(a) (restricting access to family court records of
adult protective proceedings); 571-84(a) (requiring that certain
family court records be withheld from public inspection); 571-
84.6(b) (dictating which family court records are presumptively
open for public inspection).
It also highlights that the judiciary has promulgated rules
that recognize the restrictions set by sealing statutes. See,
e.g., Hawaiʻi Court Record Rules Rules 3.1 (eff. 2010) (stating
that the court clerk shall maintain records “as required by
statute or rule.”), 10.1 (eff. 2010) (noting court records shall
be accessible “[e]xcept as otherwise provided by statute, rule,
or order”), 10.4 (eff. 2019) (restricting access to confidential
files “[e]xcept as otherwise provided by statute or court rule
or as ordered”); Hawaiʻi Family Court Rules Rule 7.2(b) (eff.
2022) (stating all documents in proceedings authorized by
certain chapters of the HRS shall be sealed).
These arguments are unpersuasive. Not only are the
proceedings covered by those statutes and rules not at issue
here, those proceedings are also substantively different from
criminal proceedings. Courts have historically recognized a
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need for confidentiality in certain proceedings and recognized
the societal benefits supporting that confidentiality. In
short, there are historical and value-driven reasons why courts
allow family court sealing.
None of the family-court-related statutes apply to criminal
proceedings. And nothing suggests the legislature has the
unilateral authority to determine how the judiciary maintains
its own records. HRS § 831-3.2(f) provides for the total
sealing of judicial records without judicial discretion.
Eliminating judicial review, especially when that review covers
constitutional dimensions, invades the judiciary’s independence.
Rather than entrusting control of judicial records to both
the legislature and judiciary, article VI, section 7 grants
exclusive authority to the judiciary over its own records. Haw.
Const. art. VI, § 7. Plus, this court possesses sole statutory
authority to determine how to handle judicial records. HRS
§ 602-5.5. We hold that article VI, section 7 gives the
judiciary the authority to exercise exclusive control over
judicial records.
E. The practical solution
HRS § 831-3.2(f) has admirable goals. We respect the
privacy and restorative interests the legislature sought to
address with HRS § 831-3.2(f). These interests are emblematic
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of the “Aloha Spirit” that coats our state and guides this
court. See HRS § 5-7.5(a).
We also recognize that HRS § 831-3.2(f) provides two
options (1) seal or (2) remove from eCourt Kōkua.
Thus, we hold that Rogan’s and Ahn’s judicial records must
be removed from eCourt Kōkua, but the judicial records must
remain publicly accessible for in-person review at the
courthouse. This removal obscures the subject case files from
immediate and quick online public access. It thereby protects
both the privacy and restorative interests advanced by HRS
§ 831-3.2(f).
This remedy satisfies HRS § 831-3.2(f) without dulling the
public’s constitutional right of access to judicial records
under article I, section 4 of the Hawaiʻi Constitution. It also
averts interference with the judiciary’s article VI, section 7
powers.
To effectuate § 831-3.2(f)’s legislative intent, this court
will soon promulgate rules to guide this removal process.
We stress that qualifying persons may move a court for
selective redactions and sealing as to any case record. To
comply with article I, section 4, courts must assess requests to
seal under HRS § 831-3.2(f) on a case-by-case basis.
the Attorney General, the privacy and restorative interests are
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typically compelling enough to override the public’s
constitutional right of access such that a total sealing of a
case file is appropriate. So we believe, in most cases, these
interests will override the public’s right to access.
III.
We deny the motions in part as to the Movants’ request to
seal the judicial records, and we grant the motions in part to
order the removal of all case records for Case No. 21908 and
SCPW-XX-XXXXXXX from eCourt Kōkua.
Robert Brian Black /s/ Mark E. Recktenwald for petitioner /s/ Sabrina S. McKenna Sara K. Haley /s/ Todd W. Eddins for amicus curiae The Office of /s/ Lisa M. Ginoza the Public Defender /s/ Matthew J. Viola Thomas J. Hughes for amicus curiae Attorney General of the State of Hawaiʻi