Hawaii lawmakers again seek disclosure about inmate deaths

Hawaii lawmakers are once again trying to bring greater transparency to incidents of inmates dying in Hawaii’s jails and prisons after a past effort to force Hawaii’s Department of Public Safety to release such information largely failed.

Two years ago, the state passed Act 234 requiring the Public Safety director to provide the governor and Legislature with reports on inmate deaths. The reports are required to include the name of the inmate, their gender, age, where they died and whether there is any indication that a sexual assault was associated with the incident. Follow-up reports are required when the official cause of death is determined.

But the Department of Public Safety has routinely withheld much of this information from both lawmakers and the public since the law was enacted, arguing that federal law forbids its release even though other states routinely make it public.

A new bill, passed out of the House Committee on Corrections, Military and Veterans on Wednesday, specifies that the public safety director doesn’t have the discretion to withhold such information. If its release does contradict a federal or state law, the bill requires the department to cite the statute.

The measure also requires the Department of Public Safety to make a copy of the report available to both the family of the inmate who died and the media.

The bill has the backing of the state’s Office of the Public Defender, as well as the Community Alliance on Prisons, led by Kat Brady, a longtime advocate for inmate protections and prison reform. The Department of Public Safety is opposing the measure.

Public Safety Director Max Otani told lawmakers during Wednesday’s hearing that the requirements violate a family’s privacy rights and that the state attorney general’s office recommended the department only give an age range for the deceased prisoner, the date the person died and their gender, essentially ensuring that the inmate cannot be identified.

The department has argued that the information about a deceased inmate is protected under the federal Health Insurance Portability and Accountability Act of 1996, which imposes safeguards to protect patients’ private health care information.

That argument has perplexed lawmakers and advocates for more transparency within the correctional system.

“I don’t know that HIPAA applies to dead people,” said Rep. Matt LoPresti (D, Ewa Villages-Ocean Pointe-Ewa Beach), who introduced the bill.

Brady told lawmakers during Wednesday’s hearing that nothing in the bill pertains to an inmate’s private medical information. “This is public information. When someone gets arrested, their name, their picture , their offense and everything goes all over the news,” said Brady. “Why can’t the public know, in a publicly funded facility, that someone has passed away?”

Jacquie Esser, an attorney with the public defenders office, told lawmakers that she found it ironic that the public safety department was relying on the privacy interests of the family when Act 234 was passed in part to ensure they had access to information about their relative.

Passage of Act 234 was cheered by advocates for correctional reform who at the time were particularly concerned about a rash of suicides among prisoners. Recent inmate deaths related to COVID-19 have amplified concerns about the lack of public information.

Esser said that not disclosing information on inmate deaths “undermines public trust and accountability” and limits oversight of policies and practices that could be putting the health and safety of inmates at risk.