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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.



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