Beyond “Seal or Remove”: The Hawaiʻi Supreme Court Defines the Constitutional Limits of Record-Sealing under HRS § 831-3.2(f)

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:

  1. It interprets “seal or otherwise remove” as presenting alternative—not cumulative—remedies, thereby rejecting the view that sealing is automatic.
  2. 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.
  3. 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

  1. 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).
  2. Qualified—not absolute—right. Sealing may occur, but only after Oahu Publications/Grube procedural & substantive tests are satisfied.
  3. 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.

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