§480-18 - Investigation.
§480-18 Investigation. (a) Whenever it appears to the attorney general, either upon complaint or otherwise, that any person or persons have engaged in or engages in or is about to engage in any act or practice by this chapter prohibited or declared to be illegal, or that any person or persons have assisted or participated in any plan, scheme, agreement, or combination of the nature described herein, or whenever the attorney general believes it to be in the public interest that an investigation be made, the attorney general may in the attorney general's discretion either require or permit the complainant to file with the attorney general a statement in writing under oath or otherwise as to all the facts and circumstances concerning the subject matter which the attorney general believes to be in the public interest to investigate. The attorney general may also require such other data and information from the complainant as the attorney general deems relevant and may make such special and independent investigations as the attorney general deems necessary in connection with the matter.
(b) Whenever the attorney general has reason to believe that any person may be in possession, custody, or control of any documentary material, objects, tangible things, or information (hereinafter referred to as "documentary evidence") pertinent to any investigation of a possible violation of this chapter and before the filing of any complaint in court, the attorney general may issue in writing, and cause to be served upon the person, an investigative demand requiring the person to produce the documentary evidence for examination.
(c) Each such demand shall:
(1) State the alleged violation of the section or sections of this chapter which are under investigation;
(2) Describe and fairly identify the documentary evidence to be produced, or to be answered;
(3) Prescribe a return date within a reasonable period of time during which the documentary evidence demanded may be assembled and produced;
(4) Identify the custodian to whom such documentary evidence are to be delivered; and
(5) Specify a place at which such delivery is to be made.
(d) No such demand shall:
(1) Contain any requirement which would be held to be unreasonable if contained in a subpoena duces tecum issued by a court of this State in aid of a grand jury investigation of the possible violation; or
(2) Require the production of any documentary evidence which would be privileged from disclosure if demanded by a subpoena duces tecum issued by a court of this State in aid of a grand jury investigation of the possible violation.
(e) Any such demand may be served by any attorney employed by or other authorized employee of this State at any place within the territorial jurisdiction of any court of this State.
(f) Service of any such demand or of any petition filed under subsection (o) of this section, may be made upon a partnership, trust, corporation, association, or other legal entity by:
(1) Delivering a duly executed copy thereof to any partner, trustee, executive officer, managing agent, or general agent thereof, or to any agent thereof authorized by appointment or by law to receive service or process on behalf of the partnership, trust, corporation, association, or entity; or
(2) Delivering a duly executed copy thereof to the principal office or place of business in this State of the partnership, trust, corporation, association, or entity to be served; or
(3) Depositing the copy in the United States mail, by registered or certified mail duly addressed to the partnership, trust, corporation, association, or entity at its principal office or place of business in this State.
(g) A verified return by the individual serving any such demand or petition setting forth the manner of the service shall be proof of the service. In the case of service by registered or certified mail, the return shall be accompanied by the return post office receipt of delivery of the demand or petition.
(h) The attorney general shall designate a representative to serve as custodian of any documentary evidence, and such additional representatives as the attorney general shall determine from time to time to be necessary to serve as deputies to such officer.
(i) Any person upon whom any demand issued under subsection (b) has been duly served shall deliver such documentary evidence to the custodian designated therein at the place specified therein (or at such other place as the custodian thereafter may prescribe in writing) on the return date specified in the demand (or on such later date as the custodian may prescribe in writing). No such demand or custodian may require delivery of any documentary evidence to be made:
(1) At any place outside the territorial jurisdiction of this State without the consent of the person upon whom such demand was served; or
(2) At any place other than the place at which such documentary evidence is situated at the time of service of the demand until the custodian has tendered to the person a sum sufficient to defray the cost of transporting the material to the place prescribed for delivery or the transportation thereof to such place at government expense.
(j) The custodian to whom any documentary evidence is delivered shall take physical possession thereof, and shall be responsible for the use made thereof and for the return thereof pursuant to this section. The custodian shall issue a receipt for such evidence received. The custodian may cause the preparation of such copies of the documentary evidence as may be required for official use by any individual who is entitled, under regulations which shall be promulgated by the attorney general, to have access to the evidence for examination. While in the possession of the custodian, no such evidence so produced shall be available for examination, without the consent of the person who produced the evidence, by any individual other than a duly authorized representative of the office of the attorney general. Under such reasonable terms and conditions as the attorney general shall prescribe, documentary evidence while in the possession of the custodian shall be available for examination by the person who produced the evidence or any duly authorized representative of the person.
(k) Whenever any attorney has been designated to appear on behalf of this State before any court or grand jury in any case or proceeding involving any alleged violation of this chapter, the custodian may deliver to the attorney such documentary evidence in the possession of the custodian as the attorney determines to be required for use in the presentation of the case or proceeding on behalf of this State. Upon the conclusion of any such case or proceeding, the attorney shall return to the custodian any documentary evidence so withdrawn which has not passed into the control of court or grand jury through the introduction thereof into the record of the case or proceeding.
(l) Upon the completion of the investigation for which any documentary evidence was produced under this section, and any case or proceeding arising from the investigation, the custodian shall return to the person who produced the evidence all the evidence (other than copies thereof made by the attorney general or the attorney general's representative pursuant to subsection (j) of this section) which has not passed into the control of any court or grand jury through the introduction thereof into the record of the case or proceeding.
(m) When any documentary evidence has been produced by any person under this section for use in any investigation, and no such case or proceeding arising therefrom has been instituted within a reasonable time after completion of the examination and analysis of all evidence assembled in the court of such investigation, the person shall be entitled, upon written demand made upon the attorney general to the return of all documentary evidence (other than copies thereof made by the attorney general or the attorney general's representative pursuant to subsection (j) of this section) so produced by the person.
(n) In the event of the death, disability, or separation from service in the office of the attorney general of the custodian of any documentary evidence produced under any demand issued under this section, or the official relief of the custodian from responsibility for the custody and control of the evidence, the attorney general shall promptly designate another representative to serve as custodian thereof, and transmit notice in writing to the person who produced the evidence as to the identity and address of the successor designated. Any successor so designated shall have with regard to such evidence all duties and responsibilities imposed by the section upon the successor's predecessor in office with regard thereto, except that the successor shall not be held responsible for any default or dereliction which occurred before the successor's designation as custodian.
(o) Whenever any person fails to comply with any investigative demand duly served upon the person under subsection (f) of this section, the attorney general, through such officers or attorneys as the attorney general may designate, may file, in the district court of any county in which the person resides, is found, or transacts business, and serve upon the person a petition for an order of the court for the enforcement of the demand, except that if the person transacts business in more than one such county the petition shall be filed in the county in which the person maintains the person's principal place of business, or in such other county in which such person transacts business as may be agreed upon by the parties to the petition. The person shall be entitled to be heard in opposition to the granting of any such petition.
(p) Within twenty days after the service of any such demand upon any person, or at any time before the return date specified in the demand, whichever period is shorter, the person may file, in the district court of the county within which the office of the custodian designated therein is situated, and serve upon the custodian a petition for an order of the court modifying or setting aside such demand. The petition shall specify each ground upon which the petitioner relies in seeking such relief, and may be based upon any failure of the demand to comply with this section, or upon any constitutional right or privilege of the person.
If the court does not set aside the demand, the person shall be assessed court cost and reasonable attorneys fees and such other penalties not greater than those specified under section 480-16. If the court sets aside the demand, the person shall be given the total cost of the petition.
(q) At any time during which any custodian is in custody or control of any documentary evidence delivered by any person in compliance with any such demand, the person may file, in the district court of the county within which the office of the custodian is situated, and serve upon the custodian a petition for an order of the court requiring the performance by the custodian of any duty imposed upon the custodian by this section.
(r) Whenever the attorney general has reason to believe that any person has information pertinent to any investigation of a possible violation of this chapter and before the filing of any complaint in court, the attorney general may seek a subpoena from the clerk of the district court in the county where the person resides, is found, or transacts business, requiring the person's presence to appear before a district judge licensed to practice law in the supreme court of this State to give oral testimony under oath on a specified date, time, and place. The clerk of the district court may also issue a subpoena duces tecum under like conditions at the request of the attorney general. Any witness subpoenaed shall be entitled to be represented by counsel and any subpoena shall state the alleged violation of the section or sections of this chapter. The scope and manner of examination shall be in accordance with the rules governing depositions as provided in the Hawaii rules of civil procedure. The person subpoenaed may at any time before the date specified for the taking of the oral testimony, move to quash any subpoena before the district judge from whose court any subpoena was issued for such grounds as may be provided for quashing a subpoena in accordance with the rules governing depositions as set forth in the Hawaii rules of civil procedure.
(s) No person shall be excused from attending an inquiry pursuant to the mandates of a subpoena, or from producing any documentary evidence, or from being examined or required to answer questions on the ground of failure to tender or pay a witness fee or mileage unless demand therefor is made at the time testimony is about to be taken and as a condition precedent to offering such production or testimony and unless payment thereof be not thereupon made. The provisions for payment of witness fee and mileage do not apply to any officer, director, or person in the employ of any person or persons whose conduct or practices are being investigated. No person who is subpoenaed to attend the inquiry, while in attendance upon the inquiry, shall, without reasonable cause, refuse to be sworn or to answer any question or to produce any book, paper, document, or other record when ordered to do so by the officer conducting the inquiry, or fail to perform any act hereunder required to be performed.
(t) Whoever, with intent to avoid, evade, prevent, or obstruct compliance in whole or in part, by any person with any investigative demand made under this section, wilfully removes from any place, conceals, withholds, destroys, mutilates, alters, or by any other means falsifies any documentary evidence in the possession, custody, or control of any person which is the subject of any such demand duly served upon any person shall be fined not more than $5,000 or imprisoned not more than one year, or both. Any person wilfully failing to comply with a subpoena issued pursuant to subsection (r) of this section shall be fined not more than $1,000 or imprisoned not more than one year, or both.
(u) Nothing in this section shall impair the authority of the attorney general or the attorney general's representatives to lay before any grand jury impaneled before any circuit court of this State any evidence concerning any alleged violation of this chapter, invoke the power of any such court to compel the production of any evidence before any such grand jury, or institute any proceeding for the enforcement of any order or process issued in execution of such power, or to punish disobedience of any such order or process by any person.
(v) As used in this section the term "documentary material" includes the original or any copy of any book, record, report, memorandum, paper, communication, tabulation, chart, or other document.
(w) All public officers, their deputies, assistants, clerks, subordinates, and employees shall render and furnish to the attorney general, the attorney general's deputy, or other designated representatives when so requested, all information and assistance in their possession or within their power.
(x) Any officer participating in the inquiry and any person examined as a witness upon the inquiry who wilfully discloses to any person other than the attorney general the name of any witness examined or any other information obtained upon the inquiry, except as so directed by the attorney general shall be punishable by a fine of not more than $1,000 or imprisonment for not more than one year, or both.
(y) The enumeration and specification of various processes do not preclude or limit the use of processes under the Hawaii rules of civil procedure but are deemed to be supplementary to the rules or the use of any other lawful investigative methods which are available. [L 1961, c 190, §16; am L 1963, c 193, §60; Supp, §205A-16; HRS §480-18; am L 1970, c 188, §39; gen ch 1985]
Rules of Court
Depositions, see Hawaii Rules of Civil Procedure, part V.
Subpoenas, see HRCP rule 45.