The governor is prohibited by DPS from telling anyone else because the stamp on the death report in bold print stating that sharing prisoner death information with the public is prohibited by law. That stamp is placed on the reports by DPS.
“Learning when and how prisoners die in custody is critically important,” stated law professor Michele Deitch in an interview with the non-profit newsroom Honolulu Civil Beat. “To me this is just so fundamental as a way to have some transparency about what’s going on in our prison systems.”
“These are the most closed institutions in our society, and there’s nothing more fundamental about how they’re operating than whether they are keeping the people in their custody safe and alive,” Deitch stated. She is currently a senior lecturer at the University of Texas’ Law School and Lyndon B. Johnson School of Public Affairs.
A written statement from DPS stated a federal law called the Health Insurance Portability and Accountability Act (HIPAA) prevents “publicly releasing individually identifying health information.” Prisoners’ health care is managed in-house or by for-profit providers. No insurance is involved and the post-mortem information is concerning a prisoner’s death, not health. The Civil Beat Law Center’s President and Executive Director, Brian Black, stated DPS’s position on refusing to release prisoner death information is “a stubborn commitment to secrecy,” adding DPS is incorrectly interpreting HIPAA.
In agreement with Deitch and Black, state representative Matt LoPresti stated, “If somebody is in state custody and they become the victim of extreme violence, it’s in the public interest to know that, because we can’t fix those kinds of problems if we don’t know about them.” Continuing, LoPresti reasoned “For too long, we haven’t known about those kinds of things, and people haven’t been wanting to talk about those kinds of things, and it has led to I thing, a culture of looking the other way. I don’t think that’s the right moral response.”
LoPresti’s statement comes after DPS’s public disclosure of just two COVID-19 prisoner deaths during 2020, out of 16 total prisoner deaths. In 2021 DPS continued only publicly disclosing prisoner deaths caused by COVID-19 for a total of seven as of March.
Pending House Bill 796 requires disclosure of prisoner death information from the death notices DPS is already lawfully required to send the governor. DPS “strongly opposes” HB 796. Although DPS Director Max Otani did tell lawmakers he has no problem disclosing prisoner death information provided that laws exist to specifically allow it.
One of Otani’s suggestions to the state’s House Judiciary and Hawaiian Affairs committees is to consider allowing DPS to withhold an information release if a criminal investigation is pending. A similar law in Texas has been being misused for years to withhold in-custody prisoner death information. [Criminal Legal News, May 2019, p. 11]
Other items on Otani’s suggestion list are for the legislature “to identify criteria when public interest outweighs privacy, identify who legally a family member is, … and finally, allow public safety to redact reports that could harm or bring shame to the [surviving] family.”
Otani told the legislative committees “If you can address those issues, then by all means, I’m willing to release that information.” A previous law by the 2019 legislative session entitled Act 234 requires prisoner death information disclosure. It has been skirted by DPS since its passage.
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