The state is refusing to release six reports on the correctional system’s efforts to cope with the pandemic inside Hawaii prisons and jails, and the Civil Beat Law Center for the Public Interest has filed a lawsuit in Honolulu Circuit Court to try to force the state to make those records public.

The prison reports were generated by a five-member expert panel that was appointed as part of a settlement of a class-action federal lawsuit. The settlement between the state and the lawyers who filed the case dictates the reports produced by that panel be kept secret.

But Brian Black, executive director of the law center, said those reports must be open to the public under the state open records law despite the terms of the settlement. State law has some exceptions that allow some government records to be kept secret, but none of those exceptions apply to the panel’s reports, he said.

“The government can’t enter into an agreement with a third party and say ‘We’re going to keep these documents confidential,’ unless they can keep them confidential under some other exception to the public records law,” Black said.

Oahu Community Correctional Center.
Oahu Community Correctional Center was the scene of some of the largest Covid-19 infection clusters in Hawaii during the pandemic. A new lawsuit argues the reports by a panel of experts who reviewed infection control procedures in prisons and jails should be made public. Cory Lum/Civil Beat/2022

The reports grew out of a class action lawsuit filed on behalf of state inmates last year alleging that corrections officials “failed to implement most, if not all, of the precautions public health experts have issued to prevent the spread of COVID-19” in prisons and jails.

That lawsuit was filed by the law firm of Eric Seitz, who said it was lawyers for the state who insisted the reports on the findings of the panel to be kept secret.

“We are bound by the settlement agreement, but I hope the court orders the reports to be disclosed,” Seitz said in an emailed statement.

Federal District Court Judge Jill Otake ruled last July that the Department of Public Safety had failed to protect inmates from a series of coronavirus outbreaks inside state correctional facilities, and had failed to follow its own Pandemic Response Plan.

That 69-page ruling on Seitz’s class action suit cited major Covid-19 outbreaks at six correctional facilities where Hawaii inmates are held, and pointed out that thousands of prisoners had been infected.

The state finally settled that lawsuit last September, and the settlement called for the five-member panel including Dr. Homer Venters, an epidemiologist and former chief medical officer of the New York City Correctional Health Services, and former Hawaii prison medical director Dr. Kim Thorburn.

The panel also included current Department of Public Safety Corrections Health Care Administrator Gavin Takenaka, Public Safety Deputy Director for Corrections Tommy Johnson and retired Associate Intermediate Court of Appeals Judge Daniel Foley.

The panel was tasked with inspecting Hawaii’s prisons and jails to assess their efforts to prevent the spread of the coronavirus, and also to interview staff and inmates. The inspectors were to make recommendations or raise concerns about the pandemic response.

According to the Civil Beat Law Center lawsuit, the panel produced six reports from Oct. 1 to March 22, and the law center requested those reports on March 17. Public Safety denied that request, according to the suit.

Public Safety spokeswoman Toni Schwartz deferred comment on the lawsuit to the state Attorney General’s office.

Gary Yamashiroya, special assistant to the Attorney General, said that office is “reviewing the complaint and will respond to the complaint in due course.”

Ten Hawaii prisoners have died from Covid-19 in correctional facilities so far. Autopsies for two other prisoners show they had the disease when they died, but their deaths were attributed to other ailments.

The Civil Beat Law Center for the Public Interest is an independent organization created with funding from Pierre Omidyar, who is also CEO and publisher of Civil Beat. Civil Beat Editor Patti Epler sits on its board of directors.

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