DOH Changes Fees Without Proper Procedures

DOH Changes Fees Without Proper Procedures

My request:

From: Nellie (redacted)
Sent: Friday, December 18, 2009 10:42 AM
To: Okubo, Janice S.
Subject: UIPA Request

Aloha, Ms. Okubo.

Pursuant to UIPA, I request an electronic copy of all materials related to the new rule posted at http://hawaii.gov/health/vital-records/obama.html concerning 2 index requests being allowed and then a $7.50 fee for each request thereafter. Specifically, I would like to see the proposed rule change, where it was posted, when the public meeting was announced and held, and when the change was declared in effect by the lieutenant governor, as well as any internal memos, e-mails, etc involving this change to policy. If the change is excluded from the statutory provisions for amending administrative rules and policies, I would like to see the statute allowing this exception.

Also, I would like to see your statement of when this new policy takes effect and whether the requests that have been outstanding for several months before this new rule was (or wasn’t) adopted are subject to these fees.

Thank you.

Nellie

Their response:

—– Original Message —–

From: Okubo, Janice S.

To: Nellie (redacted)

Cc: linden.h.joesting@hawaii.gov

Sent: Monday, January 04, 2010 2:58 PM

Subject: RE: UIPA Request

Aloha Ms. (redacted),

There are no records responsive to your request. State agencies are authorized to charge reasonable fees for the cost to process UIPA requests.

——————————————————————————–

My reply, which has not been answered:

—– Original Message —–

From: Nellie (redacted)

To: Okubo, Janice S.

Cc: linden.h.joesting@hawaii.gov

Sent: Monday, January 04, 2010 7:02 PM

Subject: Re: UIPA Request

Aloha, Ms. Okubo.

The current administrative rules (Chapter 8b) list fees. If you want to change the Administrative Rules (as you are allowed to do – as you correctly stated) you still have to follow the proper procedure to do so, according to “Rules of Practice and Procedure” (found on your own site at http://hawaii.gov/health/about/rules/prac_proc.pdf ), Subsection 3, 11-1-52. HRS 338-14(d) says:

“(d) Any fee established by the department pursuant to this section shall be adopted in accordance with chapter 91. In establishing a fee, the amount shall be sufficient to cover the expenses involved in searching for, cost of a copy of, or correction of the certificate, file, or record, as the case may be. The department may raise the fees up to ten per cent per year without being subject to the provisions of chapter 91.”

Because index records (which is what asked about – not UIPA requests – and are required to be made public by HRS 338-18) are going from free to $7.50 that is more than a 100% increase in one year’s time, which means it is subject to the provisions of Chapter 91, which is found at http://www.capitol.hawaii.gov/hrscurrent/Vol02_Ch0046-0115/HRS0091/HRS_0091-.htm . 91-3 specifically describes the procedure required, including a 30-day notice and opportunity for public hearing. I request, pursuant to UIPA, the documents showing that you gave 30-day notice and an opportunity for a public hearing.

If those requirements have not been met I will file a complaint with the Ombudsman’s Office. Laws can’t just be run over roughshod. At least not in the America I know and love.

Regarding my question of whether the rule applies to requests made before the rule was made, I found the answer myself. HRS 91-2(b) says:

“(b) No agency rule, order, or opinion shall be valid or effective against any person or party, nor may it be invoked by the agency for any purpose, until it has been published or made available for public inspection as herein required, except where a person has actual knowledge thereof.” (Case Notes add: ” “Actual knowledge” referred to in section cannot give effect to rules not adopted in conformity with §91-3 and §91-4. 55 H. 478, 522 P.2d 1255.”)

Please clarify whether the response you gave is accurate. If it is accurate and the proper procedure has not been followed, then the web page invoking a rule that has never been legally made needs to be edited.

Thank you.

Nellie

Ed. – The OIP Rules Booklet (found at http://hawaii.gov/oip/UIPA%20Manual%205aug08.pdf (p. 35) also says this about fees charged for searches:

“Allowable fees.” An agency may charge fees as follows:

(1) Fees for search, review, and segregation of the record(s), with the first $30 of the total waived,

calculated as follows:

(a) For search: $2.50 per 15 min. or fraction thereof; and

(b) For review/segregation: $5 per 15 min. or fraction thereof.

(2) Any other lawful fees.

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5 Comments

  1. Posted January 20, 2010 at 10:58 pm | Permalink | Reply

    This is what was on the FAQ page where they said they were charging fees. I have since received a letter from Ms. Okubo (which I will post in the next post) saying they are changing that page.

    HAWAII.GOV

    Home
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    Below are responses to frequently asked questions related to all records and documents maintained by the Hawaii State Department of Health (DOH) related to the vital records of President Barack Hussein Obama II. Frequently requested records and documents which can be released to the public are attached by electronic link below or, for those records and documents that are not available electronically, directions are provided for requesting copies.

    The State’s public records law, the Uniform Information Practices Act (Modified) (“UIPA”), found at chapter 92F, Hawaii Revised Statutes (“HRS”) requires that all government records be open to public inspection unless access is restricted or closed by law. Government records means information maintained by an agency in written, auditory, visual, electronic, or other physical form, see HRS §92F-3. The UIPA does not require an agency to provide access to government records that state law protects from disclosure, see, HRS §92F-13 (4), nor does it require agencies to respond to all questions asked of the agency.

    Unless a request for DOH records is specific enough to be understood, the request cannot be responded to by the DOH.

    The DOH may not have a record which is responsive to a request. The UIPA does not require an agency to compile or create information to respond to a request.

    State law prohibits the DOH from disclosing any vital statistics records or information contained in such records unless the requestor has a direct and tangible interest in the record, or as otherwise allowed by statute or administrative rule. See HRS §338-18. Direct and tangible interest is determined by HRS §338-18(b).

    In light of the unprecedented number of requests for information relating to the vital records of President Barack Hussein Obama II, the DOH has reviewed the requirements of UIPA and the confidentiality provisions of HRS Chapter 338.

    Based upon that review, the DOH has determined that the information listed below constitutes all of the publicly available information related to requests for vital statistics records pertaining to President Barack Hussein Obama II, and the only disclosures pertaining to those records that can be made in accordance with Hawaii law. The Department of Health is providing links to copies of the records in the form that they are available to the public.

    1. Birth Certificate or Certificate of Live Birth

    State law prohibits the DOH for disclosing any information about a Hawaii vital record unless the requestor has a direct and tangible interest in the record. This includes verification of vital records and all the information contained in a record. Vital records disclosure laws protect all birth, death, marriage and divorce records held by the department and all amendments, changes, supporting records, and requests related to vital records.

    Direct and tangible interest is determined by HRS §338-18(b). This statute may be accessed on the state legislative website at:
    http://www.capitol.hawaii.gov/hrscurrent/Vol06/Ch0321-0344/HRS0338/HRS 0338-0018.htm

    The law that governs vital records in the State of Hawaii is Hawaii Revised Statutes chapter 338, which may be accessed on the state legislature website at:
    http://www:capitol.hawaii.gov/hrscurrent/

    Information on how to order certified copies of vital records in Hawaii and who is eligible to order vital records in Hawaii, is available on the DOH website at:
    http://hawaii.gov/health/vital-records/vital-records/index.html

    2. Index Data

    Haw. Rev. Stat. §338-18(d) states, “Index data consisting of name and sex of the registrant, type of vital event, and such other data as the director may authorize shall be made available to the public.” Refer to link above for HRS §338-18.

    Index data consisting of name and sex of the registrant, and type of event is made available to the public. The director, in accordance with HRS §338-18(d), has not authorized any other data to be made available to the public.

    Index data referred to in HRS §338-18 from vital records in the State of Hawaii is available for inspection at the Department of Health’s Office of Health Status Monitoring at 1250 Punchbowl Street in Honolulu. The public may sign in and inspect the names and sex of all births that occurred in the state. Data is maintained in bound copies by type of event with names listed alphabetically by last name.

    The index data regarding President Obama is:

    Birth Index
    Obama II, Barack Hussein
    Male

    To request index data, provide a first and last name of the individual, and the type of event. There is no cost for the first two requests; all subsequent requests require a prepayment of $7.50 per individual and event requested along with a self-addressed, stamped envelope. Only a money order, certified check, or cashier’s check (make money order and checks payable to the State Department of Health) will be accepted. Personal checks will not be accepted. All fees are non-refundable; if no data is found after a search is conducted, the fees are retained to cover the cost of the search. Requests for index data will be sent out within 2-3 weeks after receipt of payment.

    Prepayment and a written request including a first and last name and type of event along with a self-addressed, stamped envelope may be mailed to:

    State Department of Health
    Office of Health Status Monitoring
    Issuance/Vital Statistics Section
    P.O. Box 3378
    Honolulu, HI 96801

    3. All past statements by the Health Director are available at:

    http://hawaii.gov/health/about/pr/2008/08-93.pdf
    http://hawaii.gov/health/about/pr/2009/09-063.pdf

    The statements speak for themselves and there are no other public records maintained by the department related to these statements that are available to the public.

    4. All records on department regulations and rules related to vital records are at:

    http://gen.doh.hawaii.gov/sites/har/admrules/default.aspx

    These records consist of:
    Public Health Regulations Chapter 8 (Vital Records Regulations and Records)
    Public Health Regulations Chapter 8A (Delayed Birth Registration)
    Public Health Regulations Chapter 8B (Vital Statistics Regulations and Records)
    Hawaii Administrative Rules, Title 11 Department of Health Chapter 120 (Foreign Born Persons Adopted in Hawaii)
    Hawaii Administrative Rules, Title 11 Department of Health Chapter 123 (Names of Natural Parents in Birth Certificate of Adopted Person)

    If you would like to have a hard copy of the rules sent to you by mail or by facsimile, please send a prepayment of $10.00 along with your written request to:

    State Department of Health
    Office of Health Status Monitoring
    Issuance/Vital Statistics Section
    P.O. Box 3378
    Honolulu, HI 96801

    Disclaimer and Terms of Use
    Hawaii State Department of Health · 1250 Punchbowl Street · Honolulu, HI 96813

  2. Posted January 20, 2010 at 11:00 pm | Permalink | Reply

    The reply I received today:

    —– Original Message —–
    From: Okubo, Janice S.
    To: Nellie (redacted)
    Cc: linden.h.joesting@hawaii.gov ; Alvin T Onaka
    Sent: Wednesday, January 20, 2010 4:29 PM
    Subject: RE: UIPA Request

    Aloha Ms. (redacted),

    Based upon further evaluation, the wording on the vital records webpage is being rewritten to reflect that costs for copies of index data will be estimated on an individual basis and prepayment for search, copies and mailing will be based on UIPA standards.

    According to statute, index data is available for viewing at no cost at the Department of Health Kinau Hale building first floor Office of Health Status Monitoring during regular business hours.

    Janice Okubo
    Hawaii State Department of Health

  3. Posted June 18, 2011 at 9:26 pm | Permalink | Reply

    Hi, Butter….
    I like your site/posts. The answer to the legal authorization for changing the fees for short-form COLB’s occurred on April 24, 2010, when HRS 338-14.3 was revised to read “a maximum of” one half of the fees for a long-form “Certified Copy” of a Certifcate of Live Birth. I assume that is so that they can charge much less than the $10 fee, and may even be able to justify doing so as the default option unless one requests a certified copy. The more perplexing question is when did they change the name of the Certification of Live Birth (Verification, actually – according to 338-14.3) to that of “Certificate” of Live Birth? I’ve seen what is represented (on-line) as a “Certificate of Live Birth” for the occupant of 1600 PA Ave, and it actually had a number ending in 0 instead of 1. It looked old, which wouldn’t make sense, given that it was purported to be brand new. I’m working on a book about all of this. What is your current effort with respect thereto?

    Sincerely,
    Tom Ballantyne
    http://www.UncommonSenseNow.com

    • Posted June 18, 2011 at 9:29 pm | Permalink | Reply

      Hi, Butter….
      I meant to give the link to the law signed by Lingle a year of so ago. Here it is:
      http://www.capitol.hawaii.gov/session2010/bills/GM517_.PDF
      Sincerely,
      Tom Ballantyne
      http://www.UncommonSenseNow.com

    • Posted June 21, 2011 at 11:19 pm | Permalink | Reply

      Changing the name on that is a biggie, whether they want to acknowledge it or not, because there are legal requirements for a certified “certificate” that are different than the requirements for mere verifications. Actual certificates have to have the signature of the DOH Director and the raised OFFICIAL seal of the HDOH – which is 2 1/4 inches in diameter, according to Title 11-1 (which is linked to from the HDOH website). I have not seen one COLB which meets those requirements – whether or not it had the title of “Certification of Live Birth” or the title of “Certificate of Live Birth”. If the form says it is a “certificate”, it has to have the DOH Director’s signature and the raised 2 1/4-inch-diameter official seal of the HDOH on it in order to be legally valid.

      The DOH Administrative Rules refer to two kinds of birth certificates: standard, and abbreviated. HRS 338 refers to copies of certificates, copies of the contents of certificates, and verifications in lieu of a certified copy. Putting it together, I’m wondering if the Certification of Live Birth is considered a verification in lieu of a certified copy – the difference being that a certified copy of either the certificate (long-form/standard) or the contents of the certificate (abbreviated BC) having to have the official 2 1/4-inch raised seal and the signature of the DOH Director.

      I’m wondering if Onaka has a smaller DOH seal that is used for VERIFICATIONS (of the content on file), and the HDOH Director has the official seal which is used for CERTIFYING CERTIFICATES. Title 11-1 suggests to me that the way to know if you’re looking at a genuine certified certificate is if it has the DOH Director’s signature on it and the official raised 2 1/4-inch-diameter seal on it. Even if the title of the document says “Certificate”, it is not legally valid according to Title 11-1 unless it has the DOH Director’s signature and the (larger) OFFICIAL 2 1/4-inch seal embossed on it.

      If that is the criteria, then very, very few of the long-form or short-form BC’s online would be legally valid. Only the ones that have the DOH Director’s signature and the large seal – and the only ones of those that I’ve seen are the ones that seem to be taken directly from microfilm, such as the Nordyke BC’s.

      I’ve been taking a bit of a break for a little while. I was aware that somebody said that when Obama’s supposed long-form was divided into layers, one of the layers had a different last digit in the certificate number. Is that what you were seeing? I’d like to know more about that. If that is true, that seems like a smoking gun to me.

      But then, I think everybody who is paying attention and isn’t a brain-dead Obot has figured out that the long-form is a very bad forgery. The trouble is getting anybody to prosecute it, or finding a way to have legal standing to sue in court so that what we all know has a chance to make a LEGAL difference.

2 Trackbacks

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    […] rules, without following HRS 91-3 mandates for an open process for rule changes – the first of several such violations within the past […]

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