Of Counsel: SUMIDA AU & WONG A Limited Liability Law Company KEVIN P.H. SUMIDA 2544-0 ANTHONY L. WONG 6018-0 LANCE S. AU 6244-0 735 Bishop Street, Suite 411 Honolulu, Hawai'i 96813 Telephone No. 808-356-2600 Attorneys for Interested Party Katherine Kealoha IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII CASE NO. ICPC-17-000176 STATE OF HAWAII AMICUS BRIEF IN SUPPORT OF Plaintif, MOTION TO QUASH SUBPOENA; ft CERTIFICATE OF SERVICE vs. ALBERT LEE, Defendant. AMICUS BRIEF IN SUPPORT OF MOTION TO QUASH SUBPOENA Interested party Katherine Kealoha respectfully requests leave to submit her ‘amicus brief in this matter for the limited purpose of opposing a subpoena deuces tecum served upon the Office of the Prosecuting Attorney, 1060 Richards St # 10, Honolulu, Hi 96813, for the following records: (1) Katherine Kealoha's employment tle, including but not limited to any and all documents created, maintained, or otherwise in your possession from November 1. 20! 5 through and including December 1, 2017; and (2) a list of Katherine Kealoha's position, tile, and division thatshe was assigned to from November 1, 2016 through and including December 1,2017. Important privacy interests are at stake here, because not only employment records are subject to disclosure, but any medical information contained therein (such as that relating to medical leaves and sick days) are also potentially subject to disclosure as well. |. THE EMPLOYMENT RECORDS ARE PROTECTED BY THE CONSTITUTIONAL RIGHT OF PRIVACY. Article |, 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, Jd., (emphasis added),Rule 501 of the Hawaii Rules of Evidence, now codified as law in chapter 626 of the Hawaii Revised Statutes, provides that a privilege can arise from the United States 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 powertul 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 "[tIright of the people to privacy is recognized and shall not be infringed upon without the showing of a compelling state interest." Haw. Const. Art. |, § 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 |, Section 6 of the Hawaii Constitution cannot be doubted, The significance of an individual's right of privacy in her employment records is also recognized by Chapter 92F of the Hawaii Revised Statutes, pertaining to disclosure of agency records. Therein, the law recognizes that there is a ‘significant privacy interest’ in the following: §92F-14 Significant privacy interest; examples. (a) Disclosure of a government record shall not constitute a clearly unwarranted invasion of personal privacy if the public interest in disclosure outweighs the privacy interest of the individual. (b) The following are examples of information in which the individual has a significant privacy interest: