- Law Cases
April 18, 2010
The following was sent to the Hawaii Legislature today:
Aloha, Dear Esteemed Officials of the State of Hawaii Legislature,
I understand there is a bicameral committee conference scheduled for tomorrow, April 19, 2010 at 2:15 PM to discuss SB2937 to see if the two chambers can come to a consensus in regard to the bill’s intent and content. While I understand that no public testimony will be allowed, I felt compelled to offer you a summary of my personal experience with the DoH and its lack of effort to properly respond to my requests for records which the DoH is legally and morally obligated to release. Please take the time to read my missive, as it is evidence that the DoH and OIP cannot back up their claims that requesters are making “vexatious requests” with the sole purpose of creating havoc.
The DoH claims that it receives 10-20 requests per week for Barack Obama’s birth certificate. I have personally examined over 1400 pages of related UIPA requests and responses, and the vast majority of the requests have been for vital event index data which the DoH, in accordance with HRS 338-18 (d), is obligated to make available to the public and for government records related to the agency’s practices, procedures, forms, etc., used in the discharge of its functions which must be made available to the public in accordance with HRS 91-2 and HRS 92F-12. My understanding is that under HRS 92F-3, a ”government record” means information maintained by an agency in written, auditory, visual, electronic, or other physical form. Furthermore, the UIPA Handbook broadly defines a “government record” as any information maintained by an agency that is recorded in any physical form.
I want to first inform the conference committee that I have never made a request for Obama’s birth certificate, vital event index data, or any other related personal data which the DoH is prohibited from disclosing in accordance with HRS 338-18 and HRS 92F-13. The DoH, however, has treated all UIPA requesters with equal contempt, regardless of whether or not the requester was submitting a legitimate request.
The alleged volume of UIPA requests is not the fault of persons making requests, but rather due to the fact the DoH did not respond in a timely manner, or ignored the request, or failed to provide a satisfactory answer in accordance with HRS 92F. The treatment received by requesters from the DoH is the root cause of the volume of requests. Another observation I have made is that unless the request has laser-sharp precision, the standard response is “the DoH does not have records that are responsive to your request” and/or “the agency is not required to create or compile information.” The DoH has typically relied on these responses rather than ask the requester for clarification or actually made an effort to research whether or not the record exists. I believe it is a reasonable assumption that if each of you did not receive a timely response to a request, are ignored, or do not receive a satisfactory answer, you would likely respond in the same manner as have those who have sought records from the DoH.
I made a request for Stanley Ann Dunham’s vital event index data which was answered satisfactorily. I made another request for the Administrative Rules which were unavailable on the DoH website. It took the DoH over two months to make them available to the public.
I have a request which I would like to summarize because the committee will likely consider it to meet the definition of “vexatious” requests as currently defined in SB2937/SD1/HD1.
On Oct 10, 2009, I made a request for the records which define all relevant DoH rules, regulations, policies, or procedures or a statement of general policy as well as the DoH’s interpretation of general applicability that were or are in effect from January 1, 2007 to Present Date in regard to what the DoH defines as:
No response was received until November 17, 2009 despite attempts on my part to follow up.
On November 17, 2009, Ms. Okubo finally responded:
In response to your UIPA request, the Hawaii Administrative Rules, Title 11, Chapter 117 is available on DOH website at: http://gen.doh.hawaii.gov/sites/har/admrules/default.aspx
Please refer to these rules for the public health regulations governing vital records in Hawaii.
On the same date, I replied:
The posted regulations do not respond to my request.
Perhaps I need to further explain. I have seen examples of certified COLBs where the COLB is identified as “date accepted by registrar” or “date filed by registrar.” These differences can be attributed to either a change in the DoH procedure, meaning all certified COLBs (at some point forward) are no longer identified with “date accepted” but rather with “date filed,” or the two have entirely different meanings such as:
Accepted = Accepted by Registrar
Filed = Filed with Registrar but not Accepted
The latter would indicate there was an issue with the evidentiary documentation, sworn declaration or affidavit filed on behalf of the registrant.
I am having difficulty understanding why the DoH has refused to respond to my request and similar requests for what should be straightforward “this is the procedure.” If the procedure changed, state so and when.
On November 10, 2009 I had made another request titled “UIPA Request: OHSM-1 Form Field Definition, Data and System Derived From”:
Pursuant to HRS 91-2 and HRS 92F-12, I hereby request the following for Form OHSM-1 (truncated):
Date Accepted by Registrar – Definition, Data and System Derived From
Date Filed by Registrar – Definition, Data and System Derived From
On December 11, 2009 Ms. Okubo responded:
We do not have a record responsive to your request. The UIPA does not require our agency to compile and create information to respond to a request.
On November 20, 2009 I sent the following request titled: “2nd Request – DoH Administrative Rules, Regulations, or Procedures”:
Pursuant to HRS 91-2 and 92F-12, I hereby request to inspect and copy for the 2ND time the relevant DoH rules, regulations, procedures, policies, general policy statements that include the definition of a birth record that is identified as Date Accepted by the Registrar
and Date Filed by the Registrar and the criteria for acceptance by the Registrar if filed is not the equivalent of accepted.
Please do not respond by simply copying and pasting a link in your reply to the Administrative Rules posted on the DoH website as it is not a record that is responsive to my request. If the DoH is not going to disclose the record requested, or does not have a record that is responsive to my request, please respond using the form “Notice to Requester.”
On December 11, 2009 Ms. Okubo responded:
We do not have a record responsive to your request. The UIPA does not require our agency to compile and create information to respond to a request. We are also not required to use the UIPA forms for every response.
I could go on ad infinitum on the exchanges between Ms. Okubo and me. I requested a blank COLB (received) which led to the discovery via further dialog with Ms. Okubo that the feed stock for printing the COLB is completely blank, which means “Date Filed By Registrar” and/or “Date Accepted By the Registrar” is information maintained within the Vital Records Data System which was modified in October 2008. This triggered additional UIPA requests on my part regarding the modification, responsibility for the modification/maintenance of the Vital Records data system and redacted Vital Record data system specifications and record outputs. Besides the aforementioned responses, I have also received other responses from Ms. Okubo that are incongruent or ambiguous with her original responses and I have yet to receive a definitive and satisfactory response to my request.
I submit that the records I requested are maintained in the Vital Records data system and are printed on the COLB, so therefore they qualify as “government records” per HRS 92F-3 and the UIPA Handbook definition of a “government record” and are subject to disclosure per HRS 92F-12. There is nothing in the records I requested that would be exempt from disclosure in accordance with HRS 92F-13.
It should be noted that I am in possession of an interdepartmental email exchange between Ms. Okubo and Vital Records Supervisor David Keith that evidences the DoH profiling requesters via seeking information on the internet about them and making a determination not to respond based on a perceived “hidden agenda.” Neither of the requesters mentioned in the exchange ever received a response and neither requested any record pertaining to Barack Obama. In fact, one of the requesters made a request regarding “filed vs. accepted” that was nearly identical to mine. I am also in possession of an email exchange between Ms. Okubo and Mr. Onaka that Ms. Okubo inadvertently sent to me where Mr. Onaka stated that the definitions of “Filed” and “Accepted” are valid terms but could not be explained to me, so Mr. Onaka suggested Ms. Okubo refer me (again) to the Administrative Rules available on the DoH website.
Why all the obfuscation, misdirection, and lies by the DoH to avoid answering a simple, straightforward request? All I want to know is what are the definitions of “Date Filed By Registrar” and “Date Accepted By Registrar” and under what circumstances they are applied in the Vital Records Data System and on the COLB. The effort that the DoH has put into not disclosing this information is beyond comprehension. Why all the secrecy?
I have submitted UIPA requests to other SoH agencies which were promptly and satisfactorily responded to and with the utmost professional decorum, a decorum which, I might add, is sorely lacking at the DoH. In defense of the DoH, I will note that there were several UIPA requests that were “fringe and out of line.” But to label persons as “vexatious” who simply make requests for records that fall within the boundaries of HI law and follow up with similar requests when the original request is either ignored or not satisfactorily answered is simply wrong and incongruent with the spirit of the law.
My recommendation to the bicameral conference committee is to kill the bill and to take a closer look at how the DoH has handled the UIPA requests. I am confident this inquiry would exonerate most of the requesters and indicate there are serious issues at the DoH that require closer examination and correction.
Thank you for taking the time to read my missive, and my hope is that you will take my input into consideration before passing this bill and sending it to Governor Lingle to sign into law.
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Tags: Barack Obama, Governor Linda Lingle, Hawaii Department of Health, Mr. Onaka, Ms. Janice Okubo, SB2937, Stanley Ann Dunham, State of Hawaii, Sunshine Law, UIPA, vexatious requester, Vital Records Supervisor David Keith