RIGHT TO PRIVACY

     Section 6.  The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest.  The legislature shall take affirmative steps to implement this right. [Add Const Con 1978 and election Nov 7, 1978]

Attorney General Opinions

  Bargained for random drug testing program for public school teachers with appropriate procedural protections is constitutional and would not violate either the federal or state Constitution.  If a court were to find such a program to violate either the federal or state Constitution, the doctrine of qualified immunity would bar personal liability for any state official; if a court were to impose personal liability, based upon past history and practice, the legislature would fund payment of the claims.  Att. Gen. Op. 08-1.

Law Journals and Reviews

  State v. Kam:  The Constitutional Status of Obscenity in Hawaii.  11 UH L. Rev. 253.

  State v. Rothman:  Expanding the Individual's Right to Privacy Under the Hawaii Constitution.  13 UH L. Rev. 619.

  Employee Rights Under Judicial Scrutiny:  Prevalent Policy Discourse and the Hawai`i Supreme Court.  14 UH L. Rev. 189.

  The Lum Court and the First Amendment.  14 UH L. Rev. 395.

  For Better or for Worse, in Sickness and in Health, Until Death Do Us Part:  A Look at Same Sex Marriage in Hawaii.  16 UH L. Rev. 447.

  Vernonia Sch. Dist. v. Acton:  Now Children Must Shed Their Constitutional Rights at the Schoolhouse Gate.  18 UH L. Rev. 869.

  Should The Right To Die Be Protected?  Physician Assisted Suicide And Its Potential Effect On Hawai‘i.  19 UH L. Rev. 783.

  When Children Prey on Children:  A Look at Hawai`i's Version of Megan's Law and its Application to Juvenile Sex Offenders.  20 UH L. Rev. 477.

  Privacy Outside of the Penumbra:  A Discussion of Hawai`i's Right to Privacy After State v. Mallan.  21 UH L. Rev. 273.

  Emergency Contraception in Religious Hospitals:  The Struggle Between Religious Freedom and Personal Autonomy.  27 UH L. Rev. 65.

  Your Body, Your Choice:  How Mandatory Advance Health-Care Directives Are Necessary to Protect Your Fundamental Right to Accept or Refuse Medical Treatment.  27 UH L. Rev. 201.

  Don't Smile, Your Image Has Just Been Recorded on a Camera-Phone:  The Need For Privacy in the Public Sphere.  27 UH L. Rev. 377.

  Reconsidering Hawai`i's HIV Statute:  The Need to Protect an Individual's Basic Liberties.  28 UH L. Rev. 169.

  Physician Assisted Suicide:  Expanding the Laboratory to the State of Hawai`i.  29 UH L. Rev. 269.

  Prostitution:  Protected in Paradise?  30 UH L. Rev. 193.

  The Privacy Rights of Public School Students.  32 UH L. Rev. 305 (2010).

  Hawai`i's Right to Privacy.  33 UH L. Rev. 669 (2011).

  Baehr v. Lewin and the Long Road to Marriage Equality.  33 UH L. Rev. 705 (2011).

  Homeless Property Rights:  An Analysis of Homelessness, Honolulu's "Sidewalk Law," and Whether Real Property is a Condition Precedent to the Full Enjoyment of Rights under the U.S. Constitution.  35 UH L. Rev. 197 (2013).

  2013 Law and Administrative Rules Governing Appeal Procedures of Hawaii's Office of Information Practices.  36 UH L. Rev. 271 (2014).

  Up In The Air:  The Status & Future of Drone Regulation in Hawai`i.   40 UH L. Rev. 307 (2017).

Case Notes

  District court did not abuse its discretion in denying plaintiff's motion for injunctive relief, where the motion did not have a relationship or nexus to the underlying complaint.   Plaintiff's motion was based on potential misconduct entirely unrelated to its unfair trade practices claims; plaintiff's complaint alleged multiple claims for unfair and illegal trade practices, due process violations, etc., and did not contain a claim for improper review and use of confidential patient information in violation of the Health Insurance Portability and Accountability Act and the state constitution.  810 F.3d 631 (2015).

  Parents' right to give their child any name they wish.  466 F. Supp. 714.

  Count alleging violations of the state constitution failed to state a claim in a 42 U.S.C. §1983 civil rights lawsuit brought by a former state prisoner and other allegedly similarly-situated plaintiffs primarily seeking damages for "over detention".  678 F. Supp. 2d 1061 (2010).

  The review and use of the medical records of the patients at issue must comply with the Health Insurance Portability and Accountability Act of 1996 and this section.  47 F. Supp. 3d 1069 (2014).

  Right of privacy does not encompass sex for a fee in a private apartment.  66 H. 616, 671 P.2d 1351.

  Public officials' expectation of financial privacy qualified by constitution's code of ethics.  68 H. 140, 706 P.2d 814.

  A person has a right to read or view pornographic material in the privacy of one's own home, along with this right is the right to purchase such materials for personal use; section affords much greater privacy right than federal right to privacy; State must show a compelling state interest to infringe upon the right of privacy.  69 H. 483, 748 P.2d 372.

  A person using a private telephone line has a reasonable expectation of privacy; pen register warrant required the signature of a circuit court judge.  70 H. 546, 779 P.2d 1.

  Not violated by police drug testing program.  71 H. 568, 799 P.2d 953.

  There is no fundamental right to marriage for same-sex couples under this section.  74 H. 530, 852 P.2d 44.

  Information that must be disclosed pursuant to §92F-14(b)(4)(B) regarding a public employee's employment-related misconduct and resulting discipline not "highly personal and intimate information" and thus not within scope of Hawaii's constitutional right to privacy.  83 H. 378, 927 P.2d 386.

  Purported right to possess and use marijuana not a fundamental right; where defendant failed to prove §712-1249 lacked any rational basis, section constitutional.  86 H. 440, 950 P.2d 178.

  Right to privacy in this section does not encompass right to possess and use marijuana for recreational purposes.  86 H. 440, 950 P.2d 178.

  The right to privacy under this section does not encompass the right to view adult material in an enclosed booth within a commercial establishment.  107 H. 314, 113 P.3d 190.

  Chapter 584 did not implicate father's fundamental privacy right to procreational autonomy, but rather father's economic interest in not supporting his child, and although father had standing to raise an equal protection challenge to chapter 584, that standing was based on a non-suspect classification, i.e., the biological relationship of fathers to their children; thus, because chapter 584 bears a rational relation to the public welfare, the statute survives rational basis review and father's privacy and equal protection arguments failed.  109 H. 240, 125 P.3d 461.

  Petitioners' health information was "highly personal and intimate" information that was protected by the informational privacy prong of this section; this section protected petitioners' health information produced in discovery from disclosure outside of the underlying litigation.  113 H. 424, 153 P.3d 1109.

  In prostitution case, application of §712-1200 (2006) to defendant was not unconstitutional.  114 H. 1, 155 P.3d 1102.

  Where petitioner was not a party to plaintiff's dog bite lawsuit against defendant, petitioner's health information in petitioner's medical records at hospital was protected under this section and under the physician-patient privilege of HRE rule 504.  125 H. 31, 251 P.3d 594 (2011).

  The respondent judge erred in requiring the petitioner to sign a stipulated qualified protective order (SQPO) because the contested provisions of the SQPO allowed the petitioner's health information to be used for purposes outside the underlying litigation without any showing of a compelling state interest.  132 H. 408, 322 P.3d 948 (2014).

  The respondent judge's order requiring the petitioner to sign an authorization that would allow the disclosure of the petitioner's health information outside of the underlying litigation without the petitioner's consent was a violation of the petitioner's constitutional right to informational privacy.  132 H. 408, 322 P.3d 948 (2014).

  Where defendant medical center claimed that plaintiff doctors steered patients away from treatment at defendant medical center in violation of §480-2, the parties could not use, or be compelled to produce, confidential patient medical records in litigation where the patient was not a party, where no compelling state interest had been shown.  138 H. 14, 375 P.3d 1252 (2016).

  To allow an individual's medical information, even if de-identified, to be used in litigation to which that individual is not a party, would reach beyond what the Hawaii Constitution permits in the absence of a showing of a compelling state interest.  138 H. 14, 375 P.3d 1252 (2016).

  Not violated by firefighters drug testing program.  8 H. App. 571, 816 P.2d 306.

  Section 711-1102 does not violate the right to privacy under this section as it is not a "sweeping infringement on the freedom of movement and privacy"; to prevent the substantial harm or serious inconvenience, annoyance or alarm to the public, it is reasonably necessary for law enforcement to order those participating in the disorderly conduct and those in the immediate vicinity to disperse until the disorderly conduct comes to an end.  101 H. 153 (App.), 64 P.3d 282.

  Sections 707-730(1)(b) and 707-732(1)(b), as applied to private consensual acts between two persons, including minors, did not violate minor's right to privacy as the State has at least a significant interest in regulating the sexual activities of children under the age of fourteen; in addition, there is no fundamental personal privacy right for minors under the age of fourteen to engage in sexual activities with other children under the age of fourteen; this applies to young boys, as well as to young girls, and is not strictly dependent on an age differential between the children.  121 H. 92 (App.), 214 P.3d 1082 (2009).