Hawai'i Government Employees Association v. Department of Public Safety.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-AUG-2025
12:41 PM
Dkt. 82 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

–––O0O–––

HAWAI#I GOVERNMENT EMPLOYEES ASSOCIATION, AFSCME,
LOCAL 152, ALF-CIO; and UNITED PUBLIC WORKERS,
AFSCME, LOCAL 646, AFL-CIO, Plaintiffs-Appellants, v.
DEPARTMENT OF PUBLIC SAFETY, STATE OF HAWAI#I,
Defendant-Appellee,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE GOVERNMENTAL ENTITIES 1-10,
and DOE ENTITIES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CCV-XX-XXXXXXX)

NO. CAAP-XX-XXXXXXX

AUGUST 18, 2025

LEONARD, PRESIDING JUDGE, AND WADSWORTH AND McCULLEN, JJ.

OPINION OF THE COURT BY WADSWORTH, J.

This appeal challenges the dismissal of claims brought
against Defendant-Appellant Department of Public Safety, State of
Hawai#i (PSD) for the alleged wrongful disclosure of certain
employees' COVID-19 vaccination status. Plaintiffs-Appellants
Hawai#i Government Employees Association, AFSCME, Local 152, AFL-
CIO (HGEA) and United Public Workers, AFSCME, Local 646, AFL-CIO
(UPW) (together, Plaintiffs) appeal from: (1) the March 31, 2022
"Order Granting [PSD's] Amended Motion to Dismiss, Filed on
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

November 29, 2021" (Dismissal Order), and (2) the August 2, 2022
Final Judgment (Judgment), both entered by the Circuit Court of
the First Circuit (Circuit Court).1/ Through the Dismissal Order
and the Judgment, the Circuit Court dismissed Plaintiffs' claims
against PSD for invasion of privacy, negligent supervision, and
negligence, based on the conclusion that Plaintiffs lacked
associational standing to sue on behalf of their members.
Plaintiffs raise four points of error on appeal. In
their first two points of error, Plaintiffs contend that the
Circuit Court erred in dismissing their invasion of privacy
claim, which was premised on Hawaii's Uniform Information
Practices Act (UIPA), Hawaii Revised Statutes (HRS) Chapter 92F.
Specifically, Plaintiffs argue that the Circuit Court
misinterpreted UIPA and misapplied the Hawai#i Supreme Court's
decision in State of Hawai#i Org. of Police Officers v. City &
Cnty. of Honolulu (SHOPO v. City), 149 Hawai#i 492, 494 P.3d 1225
(2021), in ruling that Plaintiffs' members did not have a private
cause of action under UIPA to sue for the alleged wrongful
disclosure. In their third and fourth points of error,
Plaintiffs contend that the Circuit Court erred in: (a)
dismissing their claims for negligent supervision and negligence;
and (b) ruling that Plaintiffs lacked associational standing to
sue on behalf of their members.2/
We hold that the Circuit Court erred in concluding that
Plaintiffs lacked associational standing. Although the court
correctly ruled that Plaintiffs' members could not sue PSD under
UIPA for the alleged disclosure of their vaccination status,
Plaintiffs' complaint, viewed in the light most favorable to
them, stated a tort claim for invasion of privacy based on the
Restatement (Second) of Torts (Restatement) § 652D (1977).
Because that claim could have been brought by their respective
individual members, Plaintiffs met the first requirement for
associational standing, and the Circuit Court's contrary
conclusion was wrong. Plaintiffs also met the remaining

1/
The Honorable Lisa W. Cataldo presided.
2/
We have restated Plaintiffs' points of error for clarity.

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requirements for associational standing. Each Plaintiff sought
to protect interests – i.e., the working conditions of its
members – which were germane to the organization's purpose. Each
Plaintiff sought relief – i.e., declaratory relief and damages
sustained by the Plaintiff organization – which did not require
participation by its individual members.
We further hold that the Circuit Court did not err in
dismissing Plaintiffs' claims for negligent supervision and
negligence. Plaintiffs' allegations were insufficient to state a
claim for negligent supervision, and Plaintiffs chose not to
amend their complaint. Plaintiffs also failed to show that UIPA
or the Governor's Emergency Proclamation Related to the Covid-19
Response (Emergency Proclamation or Proclamation) established a
legal duty supporting a negligence claim in these circumstances.
Accordingly, we affirm in part and vacate in part the
Dismissal Order and the Judgment.

I. Background3/

On August 5, 2021, then-Governor David Ige issued the
Emergency Proclamation. It required, among other things, that
state and county employees attest to their respective department
or agency whether they were "(1) fully vaccinated for COVID-19;
(2) partially vaccinated for COVID-19 (including receipt of one
dose of a two-dose course of vaccination); or (3) not vaccinated
for COVID-19."
On August 19, 2021, Shelly Harrington (Harrington), a
PSD employee, sent an email to approximately 260 PSD employees at
their work addresses with the subject line "YOU ARE HEREBY
NOTIFIED THAT YOU ARE REQUIRED TO SUBMIT A NEGATIVE COVID-19 TEST
BY EVERY MONDAY (PRIOR TO YOUR WORK TIME)." The email address of
all employees to whom the email was sent was visible to each
recipient of the email as a "cc." Plaintiffs allege that the

3/
Because we are reviewing the Circuit Court's order on a motion to
dismiss, we take the factual allegations in Plaintiffs' complaint as true.
See Civil Beat Law Ctr. for the Public Int., Inc. v. City & Cnty. of Honolulu,
144 Hawai#i 466, 484, 445 P.3d 47, 65 (2019). This factual background is
therefore taken primarily from the allegations in, and the documents
referenced in and attached to, Plaintiffs' complaint.

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email was sent to both vaccinated and unvaccinated employees, and
that it "disclosed the identity and vaccination status of 260
employees in the PSD department . . . ." In response to a letter
complaining about the disclosure, the PSD's Director stated that
the COVID testing requirement, which was the subject of the
email, "is for both vaccinated and unvaccinated employees (i.e.
vaccinated but failed to submit vaccination card, vaccinated but
filed to submit vaccination attestation form, unvaccinated but
failed to submit exemption, and unvaccinated)."4/
On October 25, 2021, Plaintiffs filed a complaint
against PSD. They alleged that approximately 118 of Harrington's
email recipients were HGEA members, and approximately 87 were UPW
members. The complaint asserted claims for (1) invasion of
privacy, citing HRS § 92F-14 (Count I), (2) negligent supervision
(Count II), and (3) negligence (Count III).
As to Count I, Plaintiffs alleged that PSD "by and
through its employees violated the 'significant privacy interest'
of the members of the Plaintiff organizations and/or associations
by publishing the vaccination status of 260 PSD employees
. . . ." Plaintiffs further alleged that pursuant to HRS § 92F-
14, their members had a "significant privacy interest" in the
contents of the vaccination status attestation they submitted to
PSD, and the disclosure of their members vaccination status
violated that statute.5/

4/
In opposing PSD's motion to dismiss, Plaintiffs claimed that "[a]
cursory reading of the Director's memo and Ms. Harrington's mass email, shows
that Ms. Harrington sent the email to employees she believed, based on her
role as DHRO, were unvaccinated employees."
5/
HRS § 92F-14 (2012) provides, in pertinent part:
Significant privacy interest; examples. (a) Disclosure
of a government record shall not constitute a clearly
unwarranted invasion of personal privacy if the public
interest in disclosure outweighs the privacy interest of the
individual.
(b) The following are examples of information in
which the individual has a significant privacy interest:
(1) Information relating to medical, psychiatric, or
psychological history, diagnosis, condition,
treatment, or evaluation, other than directory
information while an individual is present at
(continued...)

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As to Count II, Plaintiffs alleged that "Defendant PSD
had a legal duty to supervise its employees in relation to the
publication and distribution of any information that employees
had a 'significant privacy interest' in . . . ." Plaintiffs
stated that PSD "by and through its employee Harrington,"
breached the privacy interests described in HRS § 92F-14 and the
Emergency Proclamation, and thereby "negligently failed in its
legal duty to supervise its employee Harrington."
(Capitalization altered.)
Plaintiffs' Count III asserted a negligence claim,
based on alleged duties of confidentiality and non-disclosure
created by HRS § 92F-14 and the Governor's Emergency
Proclamation.
On November 29, 2021, PSD filed an amended motion to
dismiss the complaint. PSD argued that as a threshold issue, the
Circuit Court needed to determine whether Plaintiffs had
standing, and under the three-factor test for associational
standing6/ described in Hawaii Medical Ass'n v. Hawaii Medical
Serv. Ass'n, Inc., 113 Hawai#i 77, 95, 148 P.3d 1179, 1197
(2006), could not establish standing. PSD argued that
Plaintiff's complaint conceded that "the claims asserted and the
relief requested requires the participation of individual members
in the present claim[,]" whereas the test for associational
standing under Hawaii Medical Ass'n requires that "neither the
claims asserted nor the relief requested requires the
participation of individual members . . . ." PSD also contended

5/
(...continued)
such facility;
. . . .
(4) Information in an agency's personnel file, or
applications, nominations, recommendations, or
proposals for public employment or appointment
to a governmental position[.]
6/
Although some courts use the terms interchangeably, "associational
standing" generally refers to an organization or association's standing to sue
on behalf of its members, Hunt v. Washington State Apple Advert. Comm'n, 432
U.S. 333, 343 (1977), while "organizational standing" refers to an
association/organization's standing to sue for injuries to itself or its own
activities. See People for the Ethical Treatment of Animals v. U.S. Dept. of
Agric., 797 F.3d 1087, 1093 (D.D.C. 2015).

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that pursuant to Hawai#i Rules of Civil Procedure (HRCP) Rule
12(b)(6), Plaintiffs' complaint failed to adequately plead claims
for violation of UIPA, negligent supervision, and negligence.
At the hearing on PSD's motion to dismiss, the Circuit
Court questioned Plaintiffs' counsel about the complaint's
statement that "the claims asserted and the relief requested
requires the participation of individual members in the present
claim." Plaintiffs' counsel said it was a "typographical error."
On March 31, 2022, the Circuit Court entered the
Dismissal Order, granting PSD's motion to dismiss. The order
construed the motion to dismiss as "raising issues about this
Court's subject matter jurisdiction — and more specifically,
whether Plaintiffs have organizational standing . . . ." The
court reasoned that "while [UIPA] section 14(b) sets forth
examples of information in which and individual has a significant
privacy interest, the Supreme Court [in SHOPO v. City] has
determined that nothing in that section of HRS Section 92F-13
prohibits the disclosure of such information." Because
Plaintiffs' members could not sue under UIPA for the alleged
wrongful disclosure, and because associational standing requires
that "members would otherwise have standing to sue in their own
right," the Circuit Court determined that Plaintiffs lacked
standing. The Dismissal Order dismissed Plaintiffs' complaint in
its entirety, with leave to amend within thirty days, and did not
specifically address the viability of Plaintiffs' claims for
negligent supervision and negligence.
Plaintiffs did not file an amended complaint, and the
Judgment was entered on August 2, 2022.

II. Discussion

A. Plaintiffs Have Associational Standing

We first address Plaintiffs' fourth point of error,
which challenges the Circuit Court's ruling that they lacked
associational standing.7/

7/
The Circuit Court's order stated it was deciding the motion to
dismiss "on the issue of organizational standing . . . ." For purposes of
(continued...)

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"In Hawai#i state courts, standing is a prudential
consideration regarding the proper — and properly limited — role
of courts in a democratic society and is not an issue of subject
matter jurisdiction . . . ." Tax Foundation of Haw. v. State,
144 Hawai#i 175, 188, 439 P.3d 127, 140 (2019) (internal
quotation marks omitted). The Circuit Court thus erred in
stating that PSD's motion to dismiss "raises issues about this
Court's subject matter jurisdiction[.]"
An association may sue on behalf of its members when
"(a) its members would otherwise have standing to sue in their
own right; (b) the interests it seeks to protect are germane to
the organization's purpose; and (c) neither the claim asserted
nor the relief requested requires the participation of individual
members in the lawsuit. Hawaii Medical Ass'n, 113 Hawai#i at 95,
148 P.3d at 1197.
As to the first requirement for associational standing,
we conclude below in section C that Plaintiffs' complaint stated
a tort claim for invasion of privacy under the Restatement § 652D
– a claim that could have been brought by their respective
individual members. Plaintiffs thus met the first standing
requirement, and the Circuit Court's contrary conclusion was
wrong.
Each Plaintiff also met the second requirement for
associational standing – that "the interests it seeks to protect
are germane to the organization's purpose[.]" Id. at 95, 148
P.3d at 1197. As the collective bargaining representative of
many PSD employees, each Plaintiff is responsible for oversight
of its members' terms and conditions of employment, and for
bargaining with PSD regarding the same. HRS § 377-5(a) (2015).
Courts routinely hold that unions have associational standing to
sue over matters affecting the working conditions of their
members, or even over matters outside of working conditions.
See, e.g., Intern. Union, United Auto., Aerospace and Agric.
Implement Workers of Am. v. Brock, 477 U.S. 274, 286-87 (1986)

7/
(...continued)
clarity, we refer to an organization's standing to sue on behalf of its
members as "associational standing." See supra note 6.

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(holding that union had standing to bring a suit challenging the
Secretary of Labor's interpretation of eligibility provisions of
the Trade Act of 1974); Calif. Rural Legal Assistance, Inc. v.
Legal Servs. Corp., 917 F.2d 1171, 1174-75 (9th Cir. 1990)
(holding that unions had standing to challenge a ban on providing
legal services funding to permanent resident aliens, because its
members included permanent resident aliens).
The third requirement for associational standing is
that "neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit."
Hawaii Medical Ass'n, 113 Hawai#i at 95, 148 P.3d at 1197. Here,
the complaint alleged that "the claims asserted and the relief
requested requires the participation of individual members in the
present claim[,]" which would appear to fail the third
requirement. At the hearing on the motion to dismiss, however,
Plaintiffs' counsel clarified that this was a typographical
error, and he had meant to say "does not require" the
participation of individual members. Under the circumstances, we
do not consider this error fatal to Plaintiffs' standing
argument. See HRCP Rule 8(f) ("All pleadings shall be so
construed as to do substantial justice."); Hall v. Kim, 53 Haw.
215, 221, 491 P.2d 541, 545 (1971) ("[W]e have rejected 'the
approach that pleading is a game of skill in which one misstep by
counsel may be decisive to the outcome' and in turn accepted 'the
principle that the purpose of pleading is to facilitate a proper
decision on the merits.'" (quoting Conley v. Gibson, 355 U.S. 41,
48 (1957))).
Nevertheless, if Plaintiffs were to seek tort damages
for their individual members, Plaintiffs would lack standing, as
claims for money damages require the participation of individual
members. Hawai#i Med. Ass'n, 113 Hawai# at 96, 148 P.3d at 1198.
At the hearing on the motion to dismiss, Plaintiffs clarified
that they were not seeking damages for their individual members,
and were only seeking damages allegedly sustained by the two
Plaintiff organizations. On appeal, Plaintiffs state that "[t]he
present action was brought as a Declaratory Judgment action
requesting the Court to find as a matter of law that [PSD's]

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actions were unlawful and prevent it from happening again . . .
[and t]he Prayer for Relief, seeks, in part, damages for the
[Plaintiffs] as organizations[.]" "Generally, 'requests by an
association for declaratory and injunctive relief do not require
participation by individual association members.'" Id. at 96-97,
148 P.3d at 1198-99 (quoting Hosp. Council of W. Pa. v. City of
Pittsburgh, 949 F.2d 83, 89 (3d Cir. 1991)).
Accordingly, Plaintiffs sufficiently alleged the
requirements for associational standing to withstand PSD's motion
to dismiss. The Circuit Court erred in ruling otherwise.

B. UIPA Does Not Provide an Express or Implied Private
Cause of Action for Disclosure of Private Information

In their first point of error, Plaintiffs contend that
"the Circuit Court misinterpreted the scope of [HRS §] 92F-14
. . . and [HRS] Chapter 92F," by ruling that UIPA did not provide
a private cause of action for disclosures of information
protected by HRS § 92F-14(b). Relatedly, in their second point
of error, Plaintiffs contend that "the Circuit Court [improperly]
expanded the application of the Hawaii State Supreme Court's
decision in [SHOPO v. City]," because that case found there was
no private right of action under UIPA for SHOPO to prevent the
release of records, whereas Plaintiffs are seeking a remedy for
unlawful release of personal records.
"The UIPA effectuates the State's policy of conducting
government business as openly as possible tempered by a
recognition of the right of the people to privacy." Mott v. City
& Cnty. of Honolulu, 146 Hawai#i 210, 213, 458 P.3d 921, 924
(App. 2020) (internal quotation marks, ellipsis, and brackets
omitted) (quoting HRS §92F-2 (2012)). "Accordingly, UIPA
mandates disclosure of public records but furnishes an exception
for 'government records which, if disclosed, would constitute a
clearly unwarranted invasion of personal privacy.' HRS § 92F-
13(1) (2012)." SHOPO v. City, 149 Hawai#i at 497, 494 P.3d 1230
(brackets omitted).
In SHOPO v. City, the supreme court expressly held that
"there is no private cause of action to prevent, as opposed to

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compel, the release of public records under UIPA." Id. There,
SHOPO sued under UIPA to prevent the Honolulu Police Department's
disclosure of certain police disciplinary records. The supreme
court ultimately had to decide whether SHOPO had a right to bring
the suit under UIPA. The court first determined that "no express
cause of action to prevent disclosure of government records
exists under UIPA"; rather, under HRS § 92F-15(a), "UIPA provides
an express cause of action for [only] a specific class of people:
those aggrieved by nondisclosure" of government records.8/ Id. at
506, 494 P.3d at 1239.
The supreme court also analyzed whether an implied
private right of action to prevent disclosure exists under HRS
Chapter 92F, applying the factors set forth in Cort v. Ash, 422
U.S. 66, 78 (1975). Id. Under Cort and its progeny, legislative
intent "is given the greatest weight" in determining whether a
statute implies a private right of action. Id. at 507, 494 P.3d
at 1240. The court thus analyzed the legislative scheme and the
plain language of UIPA, noting that "[t]he statutory language
here is not prohibitive; that is, HRS § 92F-13 does 'not require
disclosure' if an exemption applies, but it does not forbid it,
either."9/ Id. After applying the Cort factors, the court
concluded:

Not only does UIPA already provide an express cause of
action for particular groups, nondisclosure is only
mandatory under UIPA where another law - for instance, a
state or federal statute, the constitution, or a court order
- independently requires an agency to withhold the sought
records. There is no right of nondisclosure under UIPA,
only agency discretion to utilize the enumerated exceptions.

8/
HRS § 92F-15(a) (2012) provides that "[a] person aggrieved by a
denial of access to a government record may bring an action against the agency
at any time within two years after the agency denial to compel disclosure."
9/
The court also invoked the "frequently stated principle of
statutory construction . . . that when legislation expressly provides a
particular remedy or remedies, courts should not expand the coverage of the
statute to subsume other remedies." SHOPO v. City, 149 Hawai #i at 507, 494
P.3d 1240 (quoting Reliable Collection Agency, Ltd. v. Cole, 59 Haw. 503, 510,
584 P.2d 107, 111 (1978)). The court observed that UIPA already expressly
provides for particular kinds of enforcement actions, including misdemeanor
criminal penalties for agency officers or employees who "intentionally
disclose or provide a copy of a government record, or any confidential
information explicitly described by specific confidentiality statutes, to any
person or agency with actual knowledge that disclosure is prohibited." Id.
(brackets omitted) (quoting HRS § 92F-17 (2012)).

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Id. at 509, 494 P.3d at 1242 (emphases added).
Here, Plaintiffs' invasion of privacy claim is premised
in the first instance on an asserted right of nondisclosure under
UIPA, which purportedly gives rise to a private right of action
under UIPA for the alleged wrongful disclosure of private
information. The supreme court made clear in SHOPO v. City that
UIPA does not provide such a right. Accordingly, the Circuit
Court did not err in ruling that Plaintiffs' members could not
bring individual suits under UIPA for PSD's alleged disclosure of
their vaccination status.

C. The Allegations of the Complaint State a Claim for
Invasion of Privacy under the Restatement (Second) of
Torts § 652D

Although Plaintiffs' invasion of privacy claim founded
on UIPA lacks merit, we must, in reviewing the grant of a motion
to dismiss for failure to state a claim, "view a plaintiff's
complaint in a light most favorable to them in order to determine
whether the allegations contained therein could warrant relief
under any alternative theory." Malabe v. Ass'n of Apartment
Owners of Exec. Ctr. by & through Bd. of Dirs., 147 Hawai#i 330,
338, 465 P.3d 777, 785 (2020) (brackets omitted and emphasis
added).
Plaintiffs' complaint described their invasion of
privacy claim not only as premised on UIPA, but also as an
"unlawful invasion of the privacy interests" of Plaintiffs'
members. Plaintiffs also invoked the constitutional right of
privacy during the hearing on PSD's motion to dismiss.
Article I, section 6 of the Hawai#i Constitution
provides: "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." In State of Hawai#i Org. of Police
Officers v. Soc'y of Pro. Journalists (SHOPO v. SPJ), 83 Hawai#i
378, 927 P.2d 386 (1996), the supreme court recognized that
Article I, section 6 "relates to privacy in the informational and
personal autonomy sense." Id. at 397, 927 P.2d at 405 (quoting
Stand. Comm. Rep. No. 69, in Proceedings of the Constitutional

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Convention of Hawai#i of 1978, Vol. I, at 674). "[T]he privacy
right protected by the 'informational privacy' prong of article
I, section 6 is the right to keep confidential information which
is 'highly personal and intimate.'" Id. at 398, 927 P.2d at 406.
"Because health information is 'highly personal and intimate,' it
is protected by the informational prong of article I, section 6."
Cohan v. Ayabe, 132 Hawai#i 408, 416, 322 P.3d 948, 956 (2014)
(quoting Brende v. Hara, 113 Hawai#i 424, 430, 153 P.3d 1109, 1115
(2007) (per curiam)).
In SHOPO v. SPJ, the supreme court also recognized the
framers' view of the constitutional right to privacy – that it
"encompasses the common law right of privacy or tort privacy."
83 Hawai#i at 398, 927 P.2d at 406 (quoting Stand. Comm. Rep. No.
69, in Proceedings of the Constitutional Convention of Hawai#i
1978, at 674). The court thus considered it "appropriate, when
determining whether disclosure of information implicates the
constitutional right to privacy, to consider whether the
disclosure would result in tort liability for invasion of
privacy[,]" as set forth in Restatement §§ 652D, 383 (1977). Id.
The court summarized these principles more recently in Pac.
Radiation Oncology, LLC v. Queen's Med. Ctr., 138 Hawai#i 14, 375
P.3d 1252 (2016), stating:

[W]e have previously noted that the framers "equated privacy
in the informational sense" with the "common law right of
privacy," so that "[o]ne who gives publicity to a matter
concerning the private life of another is subject to
liability to the other for invasion of his [or her] privacy,
if the matter publicized is of a kind that (a) would be
regarded as highly offensive to a reasonable person, and (b)
is not of legitimate concern to the public."

Id. at 19, 375 P.3d at 1257 (quoting SHOPO v. SPJ, 83 Hawai#i at
398, 927 P.2d at 406); see Restatement § 652D.
Here, the factual allegations of the Complaint, which
we must assume are true, appear to state a claim for invasion of
privacy under the Restatement § 652D. Plaintiffs alleged that
Harrington's email disclosed the identity and vaccination status
of 260 employees in PSD. Although disclosure "to a single person
or even to a small group" may not constitute "publicity," a
"statement made in an address to a large audience" is sufficient

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to satisfy the "publicity" requirement. Restatement § 652D cmt.
a. Plaintiffs also alleged that the PSD employees' vaccination
status was "private, confidential, medical health information
and/or medical status." See Cohan, 132 Hawai#i at 416, 322 P.3d
at 956; Brende, 113 Hawai#i at 430, 153 P.3d at 1115.
Whether a disclosure would be "highly offensive to a
reasonable person" is ordinarily a question of fact to be
determined by a jury. See, e.g., Canas v. Bay Entertainment,
LLC., 498 P.3d 1082, 1087 (Ariz. Ct. App. 2021) (holding that
trial court erred in dismissing a false light privacy claim,
where the offensiveness of defendants' disclosure was a question
for the finder of fact); Shulman v. Group W Productions, Inc.,
955 P.2d 469, 494 (Cal. 1998) (holding that jury could find media
defendants' conduct to be a "highly offensive" intrusion upon
seclusion). Similarly, in the alleged circumstances, where
reasonable minds could differ on whether the PSD employees'
vaccination status was or was not of legitimate public concern,
the issue would ordinarily be one for the finder of fact. See,
e.g., Judge v. Saltz Plastic Surgery, P.C., 367 P.3d 1006, 1013
(Utah. 2016) (holding that where reasonable minds could differ on
whether a matter is of legitimate public concern, the issue is a
jury question); Winstead v. Sweeney, 517 N.W.2d 874, 878 (Mich.
Ct. App. 1994) (holding that if a "court concludes that
reasonable minds could differ concerning the newsworthiness of
the information, then the issue should be submitted to the
jury").
Viewing the allegations of the Complaint in the light
most favorable to Plaintiffs, we cannot say that it appears
beyond doubt that Plaintiffs can prove no set of facts in support
of their invasion of privacy claim that would entitle them to
relief. Accordingly, we conclude that the Circuit Court erred in
dismissing Count I of the Complaint.

D. The Circuit Court Did Not Err in Dismissing Plaintiffs'
Claims for Negligent Supervision and Negligence

Plaintiffs contend that the Circuit Court erred in
dismissing their claims for negligent supervision and negligence.

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We address each claim, in turn, below.

1. Negligent Supervision

The Hawai#i Supreme Court analyzes negligent supervision
claims under the standards set forth in the Restatement § 317.10/
See Dairy Rd. Partners v. Island Ins. Co., 92 Hawai#i 398, 426–27,
992 P.2d 93, 121–22 (2000). Accordingly, "negligent supervision
may only be found where an employee is acting outside the scope
of his or her employment[.]" Id. at 427, 992 P.2d at 122; see
Pulawa v. GTE Hawaiian Tel, 112 Hawai#i 3, 18, 143 P.3d 1205, 1220
(2006) (same).
Here, Plaintiffs allege that PSD "by and through its
employee, Harrington, breached the statutory 'significant privacy
interest'" of Plaintiffs' members, and PSD "by and through its
employee, Harrington, breached the August 5, 2021, Emergency
Proclamation . . . ." (Capitalization altered.) Plaintiffs do
not allege that Harrington acted outside the scope of her
employment. Plaintiffs therefore failed to state a claim for
negligent supervision under the Restatement § 317. See Pulawa,
112 Hawai#i at 18, 143 P.3d at 1220.

10/
The Restatement (Second) of Torts § 317 (1965) states, in relevant
part:

A master is under a duty to exercise reasonable care so to
control his servant while acting outside the scope of his
employment as to prevent him from intentionally harming
others or from so conducting himself as to create an
unreasonable risk of bodily harm to them, if
(a) the servant

(i) is upon the premises in possession of the master
or upon which the servant is privileged to enter
only as his servant, or
(ii) is using a chattel of the master, and

(b) the master
(i) knows or has reason to know that he has the
ability to control his servant, and
(ii) knows or should know of the necessity and
opportunity for exercising such control.
(Emphasis added.)

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Plaintiffs argue that the supreme court's decision in
Doe Parents No. 1 v. State, Dept. of Educ., 100 Hawai#i 34, 67, 58
P.3d 545, 578 (2002), supports their negligent supervision claim.
There, a teacher was reinstated to his position after being
acquitted of child molestation. The teacher later molested other
children, and the parents of the molested children sued the
Hawai#i Department of Education (DOE) for negligence. The supreme
court held in part that the DOE breached the duty of care that it
owed to the children and their parents in "failing to supervise
or restrict [the teacher's] conduct once he had resumed
exhibiting the behaviors that led to the prior accusation[.]"
Id. at 41, 58 P.3d at 552. In reaching this conclusion, the
court stated that "if the State knew, or reasonably should have
anticipated, that one of its employees would commit an
intentional tort against a person to whom the State owed a duty
of care, the State is liable for the negligence of those
employees who were in a position to take reasonable precautions
against the anticipated harm." Id. at 68, 58 P.3d at 579
(emphasis added).
Here, Plaintiffs did not allege that Harrington
committed an intentional tort, or that PSD knew, or reasonably
should have anticipated, that Harrington would commit an
intentional tort. Rather, the Complaint asserts that the release
of PSD employees' vaccination status was admitted to be
"unauthorized and a mistake," and that "[t]he negligent act of
[PSD]'s Human Resources Officer, Ms. Harrington, and the adoption
of her negligent act by [PSD]'s director, was 'malfeasance'
. . . ." Doe Parents No. 1 does not support Plaintiffs'
negligent supervision claim.
On this record, the Circuit Court did not err in
dismissing Plaintiffs' claim for negligent supervision.

2. Negligence

A negligence claim depends on the existence of "[a]
duty, or obligation, recognized by the law, requiring the
defendant to conform to a certain standard of conduct, for the
protection of others against unreasonable risks[.]" Knodle v.

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Waikiki Gateway Hotel, Inc., 69 Haw. 376, 384-85, 742 P.2d 377,
383 (1987) (original brackets omitted) (quoting W.P. Keeton,
Prosser and Keeton on the Law of Torts § 30, at 164–65 (5th ed.
1984)). Here, Plaintiffs argue that "[b]oth Chapter 92F, HRS and
the E[mergency] Proclamation expressly recognize a legal duty to
maintain and not release employees' confidential personal
information." Whether such a duty exists is a question of law,
which is reviewed de novo. See Ruf v. Honolulu Police Dep't, 89
Hawai#i 315, 320, 972 P.2d 1081, 1086 (1999) (citations omitted).
Because UIPA does not create an express or implied
cause of action for the disclosure of private information in
these circumstances (see supra), it would be incongruous to
conclude that UIPA nevertheless establishes a legal duty
supporting a negligence claim. Nor does the Emergency
Proclamation impose such a duty. True, the Proclamation stated
that agencies were to ensure that "documentation related to
vaccination status or test results obtained . . . are not
disclosed to individuals other than as necessary to ensure
compliance with this Proclamation or as required by law or court
order." But the Proclamation also contained an express
disclaimer preventing suits based upon its provisions, stating
that "[n]o provision of this Proclamation, or any rule or
regulation hereunder, shall be construed as authorizing any
private right of action to enforce any requirement of this
Proclamation, or of any rule or regulation." When read as a
whole, the Proclamation does not create a legal duty supporting a
negligence claim against PSD for the disclosure at issue.
Plaintiffs offer no other source for the legal duty
they seek to impose. On this record, the Circuit Court did not
err in dismissing Plaintiffs' claim for negligence – to the
extent it sought to impose a duty beyond that imposed by the
Restatement §652D. See supra.

III. Conclusion

For the reasons discussed above, we affirm in part and
vacate in part. The March 31, 2022 "Order Granting Defendant
Department of Public Safety, State of Hawaii's Amended Motion to

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Dismiss, Filed on November 29, 2021" and the August 2, 2022
"Final Judgment" are affirmed as to Counts II and III, and
vacated as to Count I, of the Complaint. The case is remanded
for further proceedings consistent with this Opinion.

On the briefs:

Ted H.S. Hong /s/ Katherine G. Leonard
for Plaintiffs-Appellants Presiding Judge

James E. Halvorson, /s/ Clyde J. Wadsworth
Amanda Furman, and Associate Judge
Robert Rawson,
Deputy Attorneys General,
for Defendant-Appellee /s/ Sonja M.P. McCullen
Associate Judge

Robert Brian Black and
Benjamin N. Creps
(Public First Law Center)
for Amicus Curiae Public
First Law Center

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