The newspaper website commenter known only as “Taxedtodeath” won’t have to reveal his or her identity, a 3rd Circuit Court judge ruled Friday afternoon.
“The 1st Amendment and privacy issues are compelling,” Judge Elizabeth Strance said, in issuing her ruling to quash the subpoena against the Internet commenter who left a comment on a Hawaii Tribune-Herald article last year regarding the investigation into possible improper actions by county employees on county property.
Two of those employees, then-Elections Division Chief Pat Nakamoto and one of Nakamoto’s employees, Shyla Ayau, are suing former County Council Chairman Dominic Yagong and former County Clerk Jamae Kawauchi, alleging defamation of character for allegedly releasing information about the internal county investigation.
Their attorney, Ted Hong, also subpoenaed the Tribune-Herald for the names of several people who commented on newspaper articles about the investigation, arguing the commenters, including “Taxedtodeath,” had information Hong believed Yagong and Kawauchi must have released. Releasing that information would violate the collective bargaining agreement protecting Nakamoto, Ayau and two other former county employees, one of whom has since died, Hong argued.
Steven Strauss, who represents “Taxedtodeath” argued his client had an expectation of privacy when posting the comment. Further, Hong failed to provide specific allegations of what defaming comments his client had made.
“In Hawaii, we have a constitutional right to privacy,” Strauss said.
Strance asked Strauss how Hong’s clients should be able to discover who leaked confidential information if the commenter won’t release his identity. She said changes in technology have made it easier for people to release information anonymously.
Strauss disagreed, arguing that people have been making anonymous political comments for centuries. The founders of the United States also used anonymous pamphlets to release information, he said.
“We wanted to continue that tradition,” Strauss said. “This is not something newly arriving.”
Hong just wants to talk with “Taxedtodeath” because Hong has already asked Yagong and Kawauchi, in depositions, if they released confidential information to the commenter, and both denied knowing who the commenter was, Strauss said.
“He doesn’t get to pierce the respected tradition of anonymity and say you tell me you didn’t get this from these people,” Strauss said.
The idea that the company selected to make signs for Ka‘u High School, which is at the heart of the comment “Taxedtodeath” made, is confidential doesn’t make sense, Strauss said, because the high school is a public facility. Many people could have known who made the signs, he said.
Hong should not be allowed to “probe or destroy privacy on a fishing expedition,” Strauss said.
Hong said he wasn’t on a fishing expedition.
“We’re trying to find out who he is so we can take a deposition,” Hong said.
The comment that prompted the subpoena said Glen Shikuma, a former elections warehouse manager, made the signs for the high school. Kawauchi fired Shikuma for allegedly running his private sign-making business out of a warehouse the county rented on Makaala Street in Hilo. County employees are barred by law from using government time, equipment or facilities for private business.
Shikuma died of an aneurysm in August before completing a union grievance process.
Shikuma, Nakamoto, Ayau and Elton Nakagawa were also accused by Kawauchi of violating the county’s alcohol policy by drinking at the elections warehouse. Hong said during the hearing those allegations were eventually disproved.
Nakamoto and Ayau filed lawsuits against the county, Kawauchi, Yagong and the investigative firm last year alleging false and misleading information was leaked to the media about an investigation that led to them losing their jobs. As part of the union grievance process, Nakamoto was reinstated with back pay in July, but immediately took a leave of absence because of stress. She returned to the job Dec. 4, the day after Yagong left office and Kawauchi left the clerk’s job.
Ayau, an elections clerk, was also reinstated but instead took a job in the Kauai County Clerk’s office. Nakagawa was reinstated, as well.
Earlier in the hearing, Strance took arguments on motions to dismiss the claims against Yagong and Kawauchi in their personal capacities. Strance said she would treat the motions to dismiss as motions for summary judgment and scheduled a hearing for further arguments May 6.