The lawyer for a county elections official who was fired and later reinstated has subpoenaed both Big Island daily newspapers, seeking a reporter’s notes and the identities of six individuals who posted online comments regarding stories about the turmoil surrounding the 2012 elections.
Hilo attorney Ted Hong, who’s representing Elections Office Administrator Pat Nakamoto in her defamation lawsuit against former County Council Chairman Dominic Yagong and former County Clerk Jamae Kawauchi, filed the subpoena on Jan. 4 in 3rd Circuit Court. In it, he’s seeking the identities of individuals posting under the user-names “punatic,” “Taxedtodeath,” “punatic8,” “QQ,” “548991” and “rsjm.”
The document seeks “any and all account information, including but not limited to, name, birthdate, mailing address, telephone number(s), Internet protocol address, (and) name of Internet service provider.” The deadline for providing the information is today.
A legal disclaimer on the Tribune-Herald’s website contains the statement: “IP and email addresses of persons who post are not treated as confidential records and will be disclosed in response to valid legal process.”
“We are complying with the subpoena requests,” said David Bock, Tribune-Herald editor and news director for Stephens Media Hawaii. “We are very protective of our news sources and reporters’ work, but we have no control over what members of the public write in our website’s comments section.”
Hong also subpoenaed West Hawaii Today, seeking the notes of reporter Nancy Cook-Lauer regarding stories she wrote about the firing of Nakamoto and three other elections workers, and the flap that ensued.
Bock said Stephens Media is fighting that subpoena, noting that Hawaii has a “shield law” protecting journalists in most cases from having to turn over their notes or the identities of their sources unless all other avenues have been exhausted.
As a courtesy to the website posters, the Tribune-Herald notified them via email that the newspaper would be complying with the subpoenas, Bock said.
In response, one of the posters has filed a motion to quash Hong’s subpoena. The motion, filed by Hilo attorney Steve Strauss on behalf of “Doe Defendant Taxedtodeath,” states that his client’s “privacy and First Amendment rights, including the right to free speech and to petition the government, will be substantially impaired” by forced disclosure of the poster’s identity.
It also states that his client “fears retaliation for past speech using the pseudonym Taxedtodeath that has been critical of aspects of state and local government, including the Hawaii County Police Department and individual police officers.”
Nakamoto’s complaint alleges that Taxedtodeath used the posts to publish “information that was part of the ‘confidential’ investigative report authored and submitted by defendant CSII (Corporate Specialized Intelligence and Investigations).”
One of the posts, dated Jan. 30, 2012, states: “When we get to the depositions ask Ka‘u High School where they got the signs for their gym and ask Shikuma what other elected officials paid Shikuma for the signs he was making in our county facility.”
Glen Shikuma, a former elections warehouse manager, was fired by Kawauchi 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, Shyla Ayau and Elton Nakagawa were also accused by Kawauchi of violating the county’s alcohol policy by drinking at the elections warehouse.
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 due to 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.
Kona Circuit Judge Elizabeth Strance dismissed Nakamoto’s case against the county in November, ruling the county couldn’t be sued since her claims would be covered by state worker compensation laws. The dismissal also applied to Yagong and Kawauchi in their official capacities, but not as private individuals, leaving them as defendants.
The county has filed a motion seeking dismissal on the same grounds in Ayau’s lawsuit, and Francis Jung, a Kona attorney representing Kawauchi and Yagong, has filed separate motions to dismiss in both cases.
The motions will be heard by Strance on Feb. 15.
Calls by the Tribune-Herald on Monday to Hong and Strauss were not returned by press time.
