The 9th U.S. Circuit Court of Appeals will hear a three-year legal dispute over public access to sealed court records involving charges of misconduct by Honolulu Police Department officers when it meets here tomorrow to hear Hawai'i cases.

The dispute has been going on for so long that the police chief who led the fight to keep the records closed — Lee Donohue — has been out of office for 16 months. And an attorney who began the case suing Donohue has since changed jobs and now represents the city, which is fighting The Honolulu Advertiser to keep the police records secret.

That attorney, Carrie Okinaga, represented Honolulu Police Department detective Kenneth Kamakana when he sued Donohue, the Police Department and the city in 2000. Kamakana alleged that he was punitively transferred and placed under criminal investigation by HPD after reporting to the FBI about alleged wrongdoing in the department's elite Criminal Intelligence Unit.

Okinaga disqualified herself from the Kamakana case after Mayor Mufi Hannemann named her corporation counsel, the city's top civil attorney. Another of Kamakana's attorneys, Mark Bennett, is now state attorney general.

Kamakana's suit against the city, the Police Department, Donohue and former Criminal Intelligence Unit Chief Milton Olmos was settled in December 2003 after the City Council voted to pay Kamakana $650,000 without admitting wrongdoing.

Attorneys for Kamakana and the city defendants agreed early in the case that many of the court records would be filed under seal. But The Advertiser protested the secrecy order in November 2002, arguing that allegations of misconduct and corruption in the Police Department should be open to public view.

In a series of rulings, federal Magistrate Judge Leslie Kobayashi agreed, and ordered many of the records unsealed after they were first screened for confidentiality by a private attorney she appointed to review them.

"These claims raise issues about the conduct of state and federal law enforcement officials, and therefore, the court concludes that the testimony and documents concerning the matter are of significant public concern," Kobayashi ruled.

The city protested Kobayashi's rulings and later was joined by the U.S. government, which argued that federal law enforcement officials supplied some of the records and submitted to questions in the case on the understanding that the documents and testimony would be kept confidential.

"It's a very important public access case," said Jeff Portnoy, attorney for The Advertiser who will present oral arguments at tomorrow's hearing.

"After an exhaustive document-by-document, line-by-line review of thousands of pages of records, the court found that the overwhelming majority of records should never have been closed and should have been open to public review," Portnoy said.

The city has been represented by a private law firm led by local counsel Jerold Matayoshi. Matayoshi was traveling yesterday and unavailable for comment.

But in written arguments filed with the Court of Appeals, Matayoshi said the city was not trying to "cover up wrongdoing" but trying to protect information that has been traditionally kept from the public. This includes "the names of current confidential informants, names of businessmen and others who some police officers believe may be linked to organized crime, and confidential personnel information."

Portnoy said, "The newspaper has never been interested in getting the names of undercover police officers or information like that. The interest is in records that the city has attempted to keep secret because their release would be embarrassing or show misconduct by law enforcement personnel."

But Kobayashi also noted in one of her rulings that while some of the documents contained information about "confidential informants and criminal investigations, these investigations are years old and have largely resulted in criminal indictments which were made public over three years ago."

City and federal attorneys have argued that Kobayashi's rulings were illogical and inconsistent in determining what records should be opened. They also said she did not allow the government agencies a chance to protest her rulings.

Kamakana, a decorated veteran detective who specialized in cases relating to organized crime and narcotics trafficking, is still a Honolulu police officer and assigned to a joint federal-local law enforcement agency investigating drug trafficking in Hawai'i.

Reach Jim Dooley at jdooley@honoluluadvertiser.com.