One Person’s Attempt to Get DOH Administrative Rules

One person’s attempt to get DOH Administrative Rules

 

From: (redacted)
To: oip@hawaii.gov
CC: janice.okubo@doh.hawaii.gov; chyiome.fukino@doh.hawaii.gov; alvin.onaka@doh.hawaii.gov; susan.jackson@doh.hawaii.gov; ltgov@hawaii.gov
Subject: UIPA Complaint, FW: UIPA Request – DoH Administrave Rules, Regulations, or Procedures
Date: Thu, 22 Oct 2009 09:37:56 -0700

Dear OIP Official,
 
The intent of this email is to file a formal complaint against the Hawaii Department of Health for its egregious and blatant disregard for HRS 92F-12 (a) (1), which states:
 
 “Disclosure required – Any other provision in this chapter to the contrary notwithstanding, each agency shall make available for public inspection and duplication during regular business hours:

(1)  Rules of procedure, substantive rules of general  applicability, statements of general policy, and interpretations of general applicability adopted by the agency”

 
 

I emailed the DoH on October 8th, 2009 with a request for its relevant administrative rules, regulations, procedures, or general policies regarding vital records (I am not requesting HRS 338, which is readily available). I also asked for clarification in regard what the relevant document is since HAR 11-117 does not appear to have been formally adopted and it is unclear if the Hawaii Public Health Regulations was repealed in its entirety of just the parallel portion now contained in HAR 11-1.

 
 

If neither of these rules or regulations are currently in use, I requested the DoH identify and provide the relevant documents.

 
 

Last week I followed up my email request with direct phone calls to Registrar Onaka and Deputy Director Jackson.

 
 

10/15/09 – I called Mr. Onaka and he refused to take my phone call, instead I was provided the phone number to the records clerk. I did not pursue this as I somehow doubt that even if they would, Mr. Onaka wants his staff to voluntarily disclose such information.

 

10/15/09 – I called Dr. Fukino’s office and was informed that she was out of the state but they would send a message to Ms. Jackson. I provided my name and number and requested a return phone call. None received.

 

10/16/09 – I called Mr. Onaka again and he refused to take my call for the second time.

 

10/16/09 – I called Ms. Jackson directly and spoke with her administrative assistant Julie Aquino and was informed that Ms. Jackson had not received my message from 10/15/09 and that Ms. Jackson would respond via email once she received my original request. I resent the request to Ms. Jackson and Ms. Aquino and followed up with a phone call later in the day to confirm its receipt. I find Ms. Jackson’s claim that she did not receive my original request dubious at best. I confirmed that I used the correct address and the email was not kicked back as “undeliverable”.

 

10/22/09 – I have not yet received a response to my request from any of the persons I contacted at the DoH. Dr. Fukino, J. Okubo, S. Jackson, or A. Onaka.

 
 

Please note that I also have records in my possession for all of the above phone calls.

 
 

If I interpret HRS-92F (a) (1) correctly, the DoH is required by law to disclose the requested information, no exceptions. I am not requesting any personal or confidential information, just the rules or regulations that govern how the agency handles vital records. Furthermore, as I understand the statute, the DoH is not only required to provide the information requested, it is required to make reasonable accommodation to explain the general applicability and its interpretation of such rules and regulations or general policies, even those that are not explicitly defined and documented.

 
 

My expectation is that the DoH fulfill my request and accommodate any questions that might arise from my review of the documents I have requested. If the request I have made is exempt from disclosure, then the DoH is obligated to respond to that effect and its reason for withholding disclosure citing the relevant HI law on which it based its denial. As stated above, I have made no requests for personal or confidential information, only for the applicable rules, regulations, or general policies.

 
 

I also expect the DoH to correspond with me via telephone or email as they have already established a precedent for doing when handling similar requests.

 
 

The UIPA rules are in place to promote an open, transparent, and accountable government. The DoH has been anything but that. Based on the DoH’s continuous stonewalling, I am assuming that there is information contained within the DoH rules and regulations that may be damaging if it is publically disclosed. I made another UIPA request to different agency and received a prompt reply, so not all of the State of Hawaii agencies are running roughshod over the general public.

 
 

I would appreciate it very much if the OIP would investigate my complaint so that either my request is fulfilled by the DoH or I receive an explanation grounded in law as to why it will not disclose the requested information. Based on the response or lack thereof, I am prepared to take the next course of action and file an appeal for an expedited judicial review.

 
 

I have copied Dr. Fukino, Ms. Okubo, Ms. Jackson, Mr. Onaka and Lt. Governor Aiona on this complaint in order to inform them of my intent to pursue this matter to its end.

 
 

Regards,

 
 

(redacted)


From: (redacted)

To: janice.okubo@doh.hawaii.gov; chyiome.fukino@doh.hawaii.gov; alvin.onaka@doh.hawaii.gov; susan.jackson@doh.hawaii.gov
Subject: UIPA Request – DoH Administrave Rules, Regulations, or Procedures
Date: Thu, 8 Oct 2009 10:13:51 -0700

Dear Dr. Fukino, Ms. Okubo, Ms. Jackson, and Mr. Onaka,

The following request for disclosure of State of Hawaii Department of Health Rules, Regulations, or Procedures is made pursuant to HRS 92F-12 which states: “Any other provision in this chapter to the contrary notwithstanding, each agency shall make available for public inspection and duplication during regular business hours”:(1)  Rules of procedure, substantive rules of general  applicability, statements of general policy, and interpretations of general applicability adopted by the agency.”

 
 

This is an inquiry to determine which Department of Health Administrative Rule(s) pertain to the registration and records of vital statistics. According to HAR Title 11, Chapter 117 is the governing rule but there is not an active link to Chapter 117 and it is identified as a “new rule in process”. I interpret this to mean that Chapter 117 (as well as several other chapters that have this notation) have not been formally adopted at this time.
 
The table for HAR 11, specifically HAR 11-117, also contains a notation to the effect (paraphrased) that the DoH is converting Hawaii Public Health Regulations Chapters 8, 8A and 8B to Hawaii Administrative Rule 11-117. I cannot however find a link to the aforementioned public health regulations and chapters contained therein, as in this case Chapters 8, 8A, and 8B.
 
When I review HAR Title 11 Chapter 1, it states that the Hawaii Public Health Regulations (PHR)
“Rules of Practice and Procedure” have been repealed and I assume replaced by HAR Title 11-1. What is unclear is if the PHR was repealed in its entirety or just the rules/regulations now contained in HAR 11-1.
 
My inquiry:
 
If HAR 11, Chapter 117 has not been formally adopted, is PHR Chapters 8, 8A and 8B still the governing administrative regulations and rules for the registration and records of vital statistics?
 
If HAR 11, Chapter 117 has not been formally adopted and PHR Chapters 8, 8A and 8B have been repealed, then which administrative rules/procedures is the DoH following regarding the registration and records for vital statistics?
 
If HAR 11, Chapter 117 has been officially adopted, please provide me information where I can obtain a copy. If it has not been formally adopted, please confirm.
 
If PHR Chapters 8, 8A and 8B are still the governing rule/regulation, please provide me information where I can obtain a copy. If Chapters 8, 8A, and 8B have been formally repealed, please confirm.

 
 

If neither HAR 11 Chapter 117 or PHR Chapters 8, 8A or 8B apply, please provide me the publication identification of the relevant administrative rule/regulation or procedure currently governing registration and records for vital statistics. Please also provide information where I can obtain a copy.

 
 

Once I am informed which of the aforementioned apply, I will contact the DoH and submit payment for the cost of duplication and mailing as well as a mailing address. If mailing me the relevant documents is outside the scope of my request, I will contact a local representative and have them visit the DoH office to view and duplicate the relevant rules, regulations, or procedures that are currently in effect at this time.  

 
If you are unable to fulfill my UIPA request, I will refer the matter to the Lt. Governor and the State of Hawaii Office of Information Practices for further review. I know of other individuals who have made the same request as long as two 2 months ago in which the DoH did not acknowledge or respond to and who will corroborate to that effect.

 

I look forward to your response. Thank you in advance regarding any information or guidance you are able to provide.

 
Regards,
 
(redacted)

 


From: (redacted)
To: janice.okubo@doh.hawaii.gov
Subject: Information Request – DoH Administrave Rules
Date: Tue, 6 Oct 2009 11:41:12 -0700

Dear Ms. Obuko,
 
I am trying to determine which Department of Health Administrative Rule pertains to the registration and records of vital statistics. According to HAR Title 11, Chapter 117 is the governing rule but there is not an active link to Chapter 117 and it is identified as a “new rule in process”. I interpret this to mean that Chapter 117 (as well as several other chapters that have this notation) have not been formally adopted at this time.
 
Chapter 117 also contains a reference to converting Hawaii Public Health Regulations Chapters 8, 8A and 8B to administrative rules. I cannot however find a link to the aforementioned public health regulations and chapters contained therein, as in this case Chapters 8, 8A, and 8B.
 
When I review HAR Title 11 Chapter 1, it states that the Hawaii Public Health Regulations (PHR) “Rules of Practice and Procedure” have been repealed and I assume replaced by HAR Title 11-1. What is unclear is if the PHR was repealed in its entirety or just the rules/regulations now contained in HAR 11-1.
 
My questions:
 
If HAR 11, Chapter 117 has not been formally adopted, is PHR Chapters 8, 8A and 8B still the governing administrative regulations and rules for the registration and records of vital statistics?
 
If HAR 11, Chapter 117 has not been formally adopted and PHR Chapters 8, 8A and 8B have been repealed, then which administrative rules/procedures is the DoH following regarding the registration and records for vital statistics?
 
If HAR 11, Chapter 117 has been officially adopted, please provide me information where I can obtain a copy or a link. If this is not possible, please send me an unofficial copy via email.
 
If PHR Chapters 8, 8A and 8B are still the governing rule/regulation, please provide me information where I can obtain a copy or a link. If this is not possible, please send me an unofficial copy via email.
 
If neither HAR 11 Chapter 117 or PHR Chapters 8, 8A or 8B apply, please provide me information where I can obtain a copy of the relevant administrative rule/regulation currently governing registration and records for vital statistics. If this is not an option, please send me an unofficial copy via email.
 
I look forward to your response. Thank you in advance regarding any information or guidance you are able to provide.
 
Regards,
 
(redacted)

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One Comment

  1. Posted January 15, 2010 at 4:49 pm | Permalink | Reply

    I should explain here: Hawaii laws say that a department has to have their Administrative Rules publicly available (now including on their website). Though the Administrative Rules are on the Department of Health’s website now, they were not there until around Nov 5, 2009.

    Hawaii officials are not required to answer questions, but they are required to provide DOCUMENTS, from which we can get our answers. Those of us who were looking for information on what DOH terminology means (which is actually required for them to make public also) looked to the Lieutenant Governor’s website for the administrative rules, where we were told that Chapter 8b of “Public Health Regulations” was being converted into “Chapter 117”.

    It was posted that “Public Health Regulations” had been repealed, but nothing was posted anywhere saying what Chapter 117 was proposed to say. The Lt. Gov’s office confirmed that they had received no proposed rule changes.

    The e-mail I’ve included here shows just how badly the DOH was intentionally disobeying the law requiring their Administrative Rules to be posted on their website. As you can see, the Hawaii folks would not even say whether they were still legally bound to follow “Public Health Regulations” – which we were willing to try to locate on our own if necessary.

    We found that the Hawaii State Library was supposed to have a copy and if we would fork over $50 we could get some of it copied. But we didn’t even know whether it was in effect and didn’t want to waste $50 on something the Hawaii folks wouldn’t even acknowledge was still in effect. And even what was supposed to be available wasn’t. When my local librarian sought to get access from the University of Hawaii Library via Inter-Library Loan she gave up because of the stonewalling there.

    What difference does it make? The whole time that the Administrative Rules were illegally AWOL, people all over the country were contacting their Secretaries of State to get them to find out whether Obama was eligible before placing his name on the ballot. There were also lawsuits.

    Fukino was saying that they couldn’t release the birth certificate without Obama’s permission – BUT SHE KNEW THAT WAS A LIE. She knew that her own Administrative Rules would allow a government agency transacting official business on behalf of Obama to receive a certified copy of his birth certificate. If a Secretary of State asked Fukino for a certified copy she would have no legal basis to refuse.

    Whether a Secretary of State could ask for a certified copy of a birth certificate depends on the leeway in their laws, rules, and procedures, as well as any opinion they got from their Attorney General. But Fukino made her statements knowing full well that if a SOS asked for a certified copy, in order to transact the placement of Obama’s name on the ballot, she could not legally refuse to release it to them.

    So she hid that fact. Illegally.

    HRS 338-18(b) says that an official verification can be given to someone verifying claims made when applying for a government benefit or employment. This would certainly apply to a SOS seeking to confirm the information Obama provided saying he was eligible to be president.

    However, I don’t know (and can’t find out from the DOH) whether they can even issue a statutory verification of anything from Obama’s record, since his record is not considered prima facie evidence.

    And it is unknown whether the DOH can even print an abbreviated certificate for Obama (Presumably what their Certification of Live Birth is, although the DOH refuses to describe or define their different forms), since they can only do that if all the information REQUIRED for the Certification of Live Birth is included on the long-form birth certificate. The DOH refuses to even say what is required on the abbreviated certificate – which is a decision mandated by “Public Health Regulations” Chapter 8b.

4 Trackbacks

  1. By Red Flags in Hawaii « Butterdezillion's Blog on January 11, 2010 at 7:44 pm

    […] DOH Director Fukino  illegally hid until Nov 2009 the DOH Administrative Rules showing that election officials could have received a […]

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    […] Health officials should raise red flags about President Obama’s birth. In an earlier article BZ tells the story of his frustration with phone calls and emails to the Hawaii Department of Health trying to get copies of the DoH […]

  4. […] your email to the state (a hyperlink I followed) you cited HRS 92F-12 (a) (1) and the DoH’s refusal to comply with […]

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