Beyond “Seal or Remove”: The Hawaiʻi Supreme Court Defines the Constitutional Limits of Record-Sealing under HRS § 831-3.2(f)
Introduction
On 4 August 2025 the Supreme Court of Hawaiʻi issued a consolidated opinion in
State v. Rogan (Case No. 21908) and Nick Grube v. Trader (SCPW-17-0000927).
Although the caption suggests two unrelated matters, both turned on the same statutory
mechanism: HRS § 831-3.2(f), which allows people who obtain an expungement order
to request that the Judiciary “seal or otherwise remove” all related court
records from “publicly accessible electronic databases.”
Jerome Rogan (whose sexual-assault convictions were vacated for prosecutorial
misconduct) and former police officer Alan Ahn (whose charges were dismissed after a
deferred acceptance of a no-contest plea) each held valid expungement orders and asked
the Supreme Court to seal their entire case files—including two precedential opinions
(State v. Rogan, 91 Haw. 405 (1999) and Grube v. Trader,
142 Haw. 412 (2018)). Journalist Nick Grube opposed sealing Ahn’s records, invoking
the public’s constitutional right of access. The Court invited the Office of the
Public Defender (OPD) and the Department of the Attorney General (AG) to file
amicus briefs.
The judgment is momentous for three reasons:
- It interprets “seal or otherwise remove” as presenting alternative—not
cumulative—remedies, thereby rejecting the view that sealing is automatic.
- It re-affirms that article I, § 4 of the Hawaiʻi Constitution grants a
continuing, presumptive right of public access to criminal court records even when
a case ends without conviction.
- It safeguards judicial independence by holding that automatic, mandatory
sealing would violate separation-of-powers principles in article VI, § 7.
Summary of the Judgment
- Statutory holding: HRS § 831-3.2(f) gives courts two distinct options:
(1) seal the records; or (2) “otherwise remove” them from the Judiciary’s publicly
accessible electronic database, eCourt Kōkua. The phrase “otherwise remove” is
not equivalent to sealing.
- Constitutional holding (public access): Automatic sealing of criminal
records infringes the public’s article I, § 4 right of access. Before sealing,
courts must apply the procedural and substantive tests articulated in
Oahu Publications v. Ahn and Grube I.
- Constitutional holding (separation of powers): Mandatory sealing would
encroach upon the Judiciary’s exclusive authority—conferred by
article VI, § 7 and HRS § 602-5.5—to control its own records.
- Disposition: Rogan’s and Ahn’s motions to
seal were denied; however, the Court ordered that all documents in both
cases be removed from eCourt Kōkua. Hard-copy and
courthouse-terminal access remains available.
Analysis
A. Precedents Cited
The Court drew on a rich line of Hawaiʻi openness jurisprudence:
- Oahu Publications v. Ahn, 133 Haw. 482 (2014) – established the
three-prong substantive test (compelling interest, substantial probability of harm,
no less restrictive alternative) and accompanying procedural requirements (notice,
opportunity to be heard, and written findings) for sealing criminal records.
- Grube v. Trader, 142 Haw. 412 (2018) – reiterated and elaborated on
those safeguards; first clash between Ahn and journalist Grube.
- Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) &
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) – U.S. Supreme
Court cases illustrating “experience and logic” analysis; persuasive (not binding)
authority for Hawaiʻi courts when construing article I, § 4.
- Commonwealth v. Pon, 14 N.E.3d 182 (Mass. 2014) – cited by amici
as support for automatic sealing; the Court distinguished it.
B. Legal Reasoning
1. Statutory Construction of HRS § 831-3.2(f)
- Plain meaning: The disjunctive “or” gives courts a choice. The term
“remove” cannot be mere surplusage.
- Ambiguity: “Otherwise remove” could mean (a) remove entirely
(i.e. seal) or (b) limit only online availability. The text alone is unclear.
- Legislative history:
- 2015 Penal Code Review Committee proposed total removal “from public
access”; Legislature rejected this sweeping language.
- 2023 & 2025 amendments emphasised
restorative aims but still did not compel total secrecy.
- Constitutional-doubt canon: Where two interpretations exist, courts adopt
the one that avoids serious constitutional problems. Treating “remove” as less
restrictive than “seal” avoids article I, § 4 conflict.
2. Public-Access Analysis under Article I, § 4
- Presumptive openness continues after acquittal, dismissal, or
vacatur. The Court relied on Hawaiʻi’s “deeply ingrained” tradition of open
criminal proceedings and the structural values transparency serves (fairness,
accountability, informed public discourse).
- Qualified—not absolute—right. Sealing may occur, but only after
Oahu Publications/Grube procedural & substantive tests are satisfied.
- Application to Rogan & Ahn:
- Privacy/restoration are compelling interests
in most expungement cases, but the particular public importance of these
two cases (published precedent, frequent citation) tips the balance toward
transparency.
- Substantial probability of harm to privacy exists, yet a
less-restrictive alternative (removal from online database only) is available.
Therefore sealing fails prong 3 (narrow tailoring).
3. Separation-of-Powers Analysis
Article VI, § 7 empowers the Judiciary to regulate “process, practice,
procedure,” including control over its own records. HRS § 602-5.5 codifies that
exclusive custodial authority. A statutory directive that
forces total sealing—without judicial discretion—would impermissibly invade
that domain. By interpreting § 831-3.2(f) to preserve judicial choice, the Court
avoids such encroachment.
4. Remedy Selected
Records must be removed from eCourt Kōkua, but remain
available at courthouse terminals or in paper form. The Court signalled that it
will promulgate rules to implement the new protocol and reiterated that movants
may still seek partial redactions or targeted sealing (e.g. medical or financial
exhibits) under the standard access framework.
C. Impact of the Decision
- Clarifies statutory landscape: Litigants, judges, and clerks now have
a definitive interpretation of “seal or otherwise remove.”
- Sets constitutional baseline: The decision cements that the article I,
§ 4 right of access extends to expunged cases; future legislative efforts at
automatic secrecy will face heightened scrutiny.
- Operational changes: The Judiciary must develop technical and
administrative procedures to delist qualifying cases from eCourt Kōkua while
preserving in-courthouse access.
- Guidance for practitioners:
- Advocates for privacy should frame requests narrowly or propose redactions;
blanket motions to seal will rarely prevail where published precedent is
involved.
- Media and public-interest litigants retain standing to intervene whenever
electronic access is curtailed.
- Separation-of-powers reaffirmation: The decision will likely be
invoked whenever statutes purport to dictate the internal handling of judiciary
records (e.g. proposed automatic sealing of juvenile criminal dockets).
Complex Concepts Simplified
- Expungement vs. Sealing
Expungement (under § 831-3.2) annuls arrest records held by executive
agencies and entitles the person to a certificate indicating “no record.”
Sealing relates to court files; it hides documents from any public view.
- “Otherwise Remove”
Think of it as delisting: the documents stay in the clerk’s office but
are no longer visible in Google-style electronic searches.
- Article I, § 4 Right of Access
A state-constitutional analogue to the First Amendment’s openness doctrine.
It gives every member of the public—and the press—standing to contest closed
proceedings or sealed records.
- Separation of Powers (Haw. Const. art. VI)
The Legislature makes law; the Judiciary interprets and administers it.
When a statute prescribes how courts must handle their own files without
leaving discretion, it risks crossing the constitutional line.
Conclusion
The consolidated opinion in State v. Rogan / Grube v. Trader is a
landmark declaration that privacy and rehabilitation, though strongly valued in
Hawaiʻi law, do not eclipse the public’s constitutional right to observe and
scrutinize the work of criminal courts. By reading “seal or otherwise
remove” as two distinct tools—and selecting the narrower one—the Court
fashioned a pragmatic balance: individuals with expunged records gain protection
from the relentless permanence of online search engines, while the historical and
institutional record remains intact for anyone willing to visit the courthouse.
Looking ahead, the decision will influence statutory drafting, judicial
rule-making, and litigation strategy in every context where privacy interests are
invoked to restrict access to court files. It underscores that transparency is a
cornerstone of Hawaiʻi’s justice system—one that the Legislature may
accommodate, but not abolish.