§806-73 Duties and powers of probation officers; adult probation records. (a) A probation officer shall investigate any case referred to the probation officer for investigation by the court in which the probation officer is serving and report thereon to the court. The probation officer shall instruct each defendant placed on probation under the probation officer's supervision of the terms and conditions of the defendant's probation. The probation officer shall keep informed concerning the conduct and condition of the defendant and report thereon to the court, and shall use all suitable methods to aid the defendant and bring about an improvement in the defendant's conduct and condition. The probation officer shall keep these records and perform other duties as the court may direct. No probation officer shall be subject to civil liability or criminal culpability for any disclosure or nondisclosure, under this section, if the probation officer acts in good faith and upon reasonable belief.
(b) All adult probation records shall be confidential and shall not be deemed to be public records. As used in this section, the term "records" includes but is not limited to all records made by any adult probation officer in the course of performing the probation officer's official duties. The records, or the content of the records, shall be divulged only as follows:
(1) A copy of any adult probation case record or of a portion of it, or the case record itself, upon request, may be provided to:
(A) An adult probation officer, court officer, social worker of a Hawaii state adult probation unit, or a family court officer who is preparing a report for the courts; or
(B) A state or federal criminal justice agency, or state or federal court program that:
(i) Is providing supervision of a defendant or offender convicted and sentenced by the courts of Hawaii; or
(ii) Is responsible for the preparation of a report for a court;
(2) The residence address, work address, home telephone number, or work telephone number of a current or former defendant shall be provided only to:
(A) A law enforcement officer as defined in section 710-1000 to locate the probationer for the purpose of serving a summons or bench warrant in a civil, criminal, or deportation hearing, or for the purpose of a criminal investigation; or
(B) A collection agency or licensed attorney contracted by the judiciary to collect any delinquent court-ordered penalties, fines, restitution, sanctions, and court costs pursuant to section 601-17.5;
(3) A copy of a presentence report or investigative report shall be provided only to:
(A) The persons or entities named in section 706-604;
(B) The Hawaii paroling authority;
(C) Any psychiatrist, psychologist, or other treatment practitioner who is treating the defendant pursuant to a court order or parole order for that treatment;
(D) The intake service centers;
(E) In accordance with applicable law, persons or entities doing research; and
(F) Any Hawaii state adult probation officer or adult probation officer of another state or federal jurisdiction who:
(i) Is engaged in the supervision of a defendant or offender convicted and sentenced in the courts of Hawaii; or
(ii) Is engaged in the preparation of a report for a court regarding a defendant or offender convicted and sentenced in the courts of Hawaii;
(4) Access to adult probation records by a victim, as defined in section 706-646 to enforce an order filed pursuant to section 706-647, shall be limited to the:
(A) Name and contact information of the defendant's adult probation officer;
(B) Compliance record of the defendant with court-ordered payments;
(C) Amounts paid by the defendant;
(D) Dates of the payments made by the defendant;
(E) Payee of payments made by the defendant; and
(F) Remaining unpaid balance,
without the assessment of a filing fee or surcharge;
(5) Upon written request, the victim, or the parent or guardian of a minor victim or incapacitated victim, of a defendant who has been placed on probation for an offense under section 580-10(d)(1), 586-4(e), 586-11(a), or 709-906 may be notified by the defendant's probation officer when the probation officer has any information relating to the safety and welfare of the victim;
(6) Notwithstanding paragraph (3) and upon notice to the defendant, records and information relating to the defendant's risk assessment and need for treatment services; information related to the defendant's past treatment and assessments, with the prior written consent of the defendant for information from a treatment service provider; provided that for any substance abuse records such release shall be subject to title 42 Code of Federal Regulations part 2, relating to the confidentiality of alcohol and drug abuse patient records; and information that has therapeutic or rehabilitative benefit, may be provided to:
(A) A case management, assessment, or treatment service provider assigned by adult probation to service the defendant; provided that such information shall be given only upon the acceptance or admittance of the defendant into a treatment program;
(B) Correctional case manager, correctional unit manager, and parole officers involved with the defendant's treatment or supervision; and
(C) In accordance with applicable law, persons or entities doing research;
(7) Probation drug test results may be released with prior written consent of a defendant to the defendant's treating physician when test results indicate substance use which may be compromising the defendant's medical care or treatment;
(8) Records obtained pursuant to section 704-404(9) may be made available as provided in that section;
(9) Any person, agency, or entity receiving records, or contents of records, pursuant to this subsection shall be subject to the same restrictions on disclosure of the records as Hawaii state adult probation offices; and
(10) Any person who uses the information covered by this subsection for purposes inconsistent with the intent of this subsection or outside of the scope of the person's official duties shall be fined no more than $500.
(c) Every probation officer, within the scope of the probation officer's duties, shall have the powers of a police officer. [L 1931, c 41, pt of §4; RL 1935, §5539; RL 1945, §10845; RL 1955, §258-55; HRS §711-79; ren L 1972, c 9, pt of §1; am L 1985, c 167, §1; gen ch 1985; am L 1989, c 262, §1; am L 1990, c 189, §5; am L 1993, c 20, §1; am L 1994, c 102, §1; am L 1995, c 224, §1; am L 2001, c 288, §1; am L 2006, c 36, §1; am L 2010, c 149, §1; am L 2011, c 119, §§2, 4; am L 2016, c 231, §64; am L 2017, c 77, §5]
Note
The repeal and reenactment note at subsection (b) in the main volume took effect on July 1, 2016, pursuant to L 2011, c 119, §4. The L 2016, c 231, §64 amendment is exempt from the repeal and reenactment condition of L 2011, c 119, §4. L 2016, c 231, §72(2).
Case Notes
Violation of section where prosecutor used confidential presentence report. 70 H. 227, 768 P.2d 759 (1989).
Sentencing court must make a presentence report part of the record in all cases where a report has been prepared, which must be sealed to comply with confidentiality requirements of section. 73 H. 259, 831 P.2d 523 (1992).
Trial court erred in denying defendant's request to disclose victim's adult probation division records or to conduct an in camera review; trial court should have conducted an in camera review of victim's adult probation division records and released to defendant relevant information pertaining to victim's truthfulness and honesty; trial court should have then sealed the remaining portions of the record. 104 H. 89 (App.), 85 P.3d 196 (2004).