John Hill: Judge hides documents on child’s death because otherwise we might get the wrong impression

Nearly three years after the death of six-year-old Isabella Kalua, the public is still unclear why the state and a family court handed her over to the Waimanalo couple accused of killing her.

And the latest obstacle? Family Court Judge Matthew Viola believes that releasing redacted court records could give the public a “distorted and misleading picture” of the official handling of the case.

Now the Hawaii Supreme Court must decide whether this is a legitimate reason to withhold from the public how the Department of Human Services, the Family Court and other parties decided to place Isabella with a couple with a criminal past and financial problems.

Let’s think about this for a moment. Viola is not arguing that the privacy of Isabella’s surviving siblings would be violated if she revealed the horrific things Isaac and Lehua Kalua are alleged to have done to her, and may have done to them as well.

No – he says that information about the surviving children can be safely redacted. But the judge fears that the resulting records would leave us with “a distorted and misleading picture of the contents of the court files and in particular the factual and legal documents on the basis of which the decisions of the authority and the court to release the children to the Kaluas were made.”

I cannot understand how this can be. Why should deletions intended to protect privacy contain information that would cast the state’s actions in a more negative or favorable light?

And even if that were somehow the case, couldn’t DHS or other actors simply resolve the matter themselves without compromising anyone’s privacy?

The state and family court use privacy as a shield to prevent any public scrutiny of their actions in this and other sickening cases of abuse and neglect.

Even if they did this out of cynicism, protecting privacy is a legitimate interest.

But the reputation of the state bureaucracy and the family court? How can these considerations outweigh the compelling interest of the public whose tax dollars fund these operations, knowing how the child protection system could make such a terrible decision? For all we know, they had many reasons to remove these children from the Kalua household as soon as possible, not to have Isabella adopted by them.

The judge says the theoretical harm caused by the public having a false impression of the child protection system based on redacted records, or not getting a full picture of how it operates, is more serious than the harm caused by keeping the public in the dark about how a child was placed in a home where he was allegedly tortured and starved.

Just imagine the chaos that will ensue if citizens run around thinking the government could have done a better job in this case. Who knows, they might even demand a change. And all this on the basis of a redacted report!

The whole saga of Isabella’s file began last year when I found out that the federal government requires states to release certain information about deaths and near-deaths of children due to abuse and neglect.

I’ve asked DHS for this information over the past few years, and they’ve given me minimal facts on some cases. But I noticed Isabella’s case wasn’t included. So I asked why.

Initially, DHS told me that the reason was because she had not been officially declared dead. The girl’s body was never found.

Then a judge declared her dead, but DHS said it was still in shackles because they didn’t get the judge’s declaration, so I took it upon myself to send it to them.

Still not good enough. Yes, a judge declared Isabella dead, DHS said, but the declaration did not mention that it was due to abuse. See, the 6-year-old girl could have simply run away and never been heard from again, even though her adoptive parents are charged with murder. (OK, they didn’t say that, but how else can you explain her disappearance except abuse?)

That’s where the Public First Law Center, which advocates for open government, comes in. Inspired by my columns, the law center filed motions in December to release portions of Isabella’s records from when she was a foster child with the Kaluas and also when the couple adopted her.

The Legal Center requested case files and records that could provide the legal and factual basis for the recommendations and decisions made by DHS, the Family Court, and other parties in Isabella’s cases.

Her adoptive father, Isaac Kalua, who is awaiting trial in jail, opposed the requests, as did DHS and the Court Appointed Special Advocates Program, whose staff represent the interests of abused or neglected children. They had various arguments – Isaac Kalua, for example, cited the publicity of his criminal case before the trial.

In June, Viola delivered a ruling, acknowledging that releasing the information would serve a legitimate purpose, as it would allow the public to assess the actions of the state and the court. Viola was willing to release a redacted version of a special main report on the Kaluas’ backgrounds and some of the allegations against them.

Wouldn’t that be enough? Not at all, and here’s why.

According to Public First’s petition to the Supreme Court, the special counsel’s report reflects allegations made in a civil lawsuit against DHS and others related to Isabella’s death.

I can’t think of the right word to describe this concerted effort to keep these records secret. The word that comes to mind is “obscene.”

The lawsuit makes a number of outrageous claims, including that DHS received an eyewitness report that Isabella was beaten and starved by her foster mother. The lawsuit cites four separate medical examinations that showed signs of abuse – suspicious bruising, broken fingers, broken collarbones, and several broken legs. A teacher allegedly reported Isabella’s disturbing behavior and apparent fear of talking about her life at home.

What is missing from the special report and the complaint is an explanation of how and why DHS and the Family Court made their recommendations and decisions.

Viola did not want to release parts of the court records that would reveal these decisions because the deletions could potentially paint a “distorted and misleading” picture.

According to Public First, one of the problems with this ruling is that when the legislature created laws allowing the disclosure of court records in child protection cases where there is a “legitimate purpose”, it did not make an exception in the case where these could provide an incomplete picture of the actions of bureaucrats and judges.

Every child welfare case would have to be redacted to some degree, so if that were a reason to keep court records secret, the law would be meaningless – or as Public First puts it, “This exception swallows the legitimate purpose.”

It’s a strange rationale for withholding records: “It might put us in a bad light.” I mean, I think that’s often the motivation – they just don’t usually say it out loud. (OK, it’s possible that the “distorted” picture Viola fears is an overly rosy portrayal of the officers’ actions. If you believe that, I have an energy weapon I’d like to interest you in.)

Public First said it could not find any laws in Hawaii or elsewhere that would withhold otherwise public records on this “distorted image” ground.

And speaking of subjective standards, should judges summon a dozen randomly selected citizens and ask them whether they would think less of their government officials if these redacted records were made public?

I can’t think of the right word to describe this concerted effort to keep these records secret. I can think of “obscene.” The reasons for opening them are so obvious.

“The death of a child whose parents were referred by DHS deserves the harsh light of public scrutiny to assess what went wrong and how to make it right,” Public First said, especially given that since Isabella’s death, another innocent child has died under very similar circumstances.

Public First is asking the Supreme Court for a preliminary injunction to block Viola’s order and order the records to be unsealed. There is no telling when the Supreme Court will take up the case, or even if it will ask the parties to present their arguments. The court could simply deny the motions.

Whatever the decision – and I sincerely hope it is the right decision – we will be watching it.

The Public First Law Center, formerly the Civil Beat Law Center for the Public Interest, is an independent organization founded with funding from Pierre Omidyar, who is also a co-founder of Civil Beat. Civil Beat editor Patti Epler sits on the board