A new state law requires prison officials to report within 48 hours any death of an inmate or correctional employee to the governor, who is required forward notification to state lawmakers. The reporting includes name, age, gender, location and cause of the death and whether there’s any indication a sexual assault was involved.
But the reach of accountability comes to an abrupt halt there. There’s no requirement for general public notification. What’s more, the new law allows the state Department of Public Safety’s director to block disclosure of any information that could be perceived as protected from release by state or federal law.
The upshot is a law that falls short of needed transparency on a matter of public concern, and enables more secrecy in an agency that already has a negative reputation for being unforthcoming in regards to public information requests.
The measure’s weaknesses surfaced in the first set of one dozen inmate death reports obtained by the Honolulu Star-Advertiser last week under the law, Act 234. Prison officials redacted almost every detail — in some cases, even cause of death — from documents pertaining to deaths, most which occurred between Aug. 1 and Dec. 25.
In one case, an inmate died on Christmas morning after being assaulted at Oahu Community Correctional Center on Nov. 19. Although initially classified by Honolulu police as a homicide resulting from an inmate-on-inmate assault, the prison system did not publicly announce the attack or the death.
The law’s intent was to provide lawmakers who shape public policy for corrections with information that helps piece together a full picture of systemwide conditions. One key piece should be a straightforward basic accounting about deaths that occur while in custody or at work in corrections facilities.
Contrary to that sensible aim, the law is being used as a sort of shield that leaves the Legislature in the dark.
State Sen. Clarence Nishihara, who pushed for the bill that became Act 234, said lawmakers may need to amend the law to force the prison system to release more information. Also, he may schedule a hearing to question administration officials about their reasons for withholding information. On both scores, Nishihara is on the mark.
The state Attorney General’s Office supports discretion to redact information because the Public Safety Department is subject to the federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, which imposes safeguards to protect patients’ private health care information.
HIPAA prevents “covered entities” from disclosing identifiable health information under a prohibition that continues up to 50 years after death. Even so, some states don’t apply HIPAA as an absolute secrecy shield, and do publicly announce inmate deaths, and routinely name decedents. Nevada’s Department of Correction posts information — including all the details that might be redacted here — on a public website.
Hawaii lawmakers, in tandem with the Attorney General’s Office and Public Safety Director Nolan Espinda, should look closely at how other states manage to comply with HIPAA while providing the public with a responsible level of accounting — and follow suit.
Act 234 should concern even those who rate corrections problems as a low priority; consider that each inmate and corrections employee is someone’s son or daughter. In its current form, the law’s lack of transparency feeds into an already festering climate of mistrust.
With Gov. David Ige’s support, Espinda was reconfirmed to his post in April, despite the state Senate’s own Public Safety Committee recommending against, questioning his ability to improve dire prison conditions. Espinda pledged to do better. Setting right the new law’s provisions presents opportunity to make good on that pledge.
