Monthly Archives: February 2010

“Vexatious Requestor” Bill

“Vexatious Requestor” Bill, Intended to Undo UIPA, is Response to “Red Flags”

 

On January 27th Hawaii State Senator Will Espero introduced SB2937 , which would add to Hawaii’s existing open records law, UIPA, a provision to label as “vexatious requestors” people who exhibit 2 or more behaviors that the bill calls “abuses” of UIPA. A person labeled as a “vexatious requestor” would be denied access to government records for 2 years.

 

Some of the actions that would get a person into trouble deserve closer inspection. In the language of the bill:

 

“When the person has been working in concert with another person to make requests, including making identical requests, both persons’ requests may be considered as part of the person’s pattern of conduct.

 

People working together to make requests would actually reduce the number of requests since only one person needs to ask instead of them all.

 

And there are perfectly valid reasons to make identical requests. For instance, a record confirmed as existing at one point could be requested later, to see if the required retention time had run out – which would indicate when the record came into existence. And asking the same request serves as cross-examination to eliminate any questions of whether a clerical error or misunderstanding had occurred.

 

What this part seems to find troubling is actually called in the Bill of Rights “freedom of association”. People have the right to be able to work with others to find answers. There are other, more reasonable steps that can be taken to keep a group from being able to “spam” an agency to a standstill. More on that later. Blacklisting people because they practice the First Amendment right of association is a bit extreme.

 

 

-(2) Splitting requests to avoid or minimize fees;

 

The DOH has illegally changed their fees so that it costs $7.50 for a person to receive from the DOH index data such as “Smith, Joe, male, birth” another $7.50 to get “Smith, Joseph, male, birth”, and another $7.50 to get “Smith, Joseph P, male, birth”. Index data is required to be available to the public and has never cost anything. Because the rule change also requires index data requests to be done through snail-mail this measure will cause MORE – not less – work for the DOH. This is a punitive rule change that was not effected through the legally-required process.

 

-(4) Requests for records submitted for a purpose other than obtaining access to the records, including nuisance value or harassment;

 

This would undo a hard and fast rule of interpretation for UIPA currently: the reason for the request cannot impact how an agency responds. (See the UIPA Manual , page 12).

 

One of the ways a person gets information is by finding out the existence of a record. Where the record’s existence is not protected from disclosure, its very existence is a piece of information that is supposed to be available to the public. This change would punish a person for making requests in order to find out if a record exists. This gives government bureaucrats permission to pretend to read minds and punish those who they suspect of thinking the wrong thing. Again, there are better ways to reduce the potential for harassment.

 

-(5) Institution of proceedings under this chapter, including appealing requests or submitting complaints or investigation requests, without a reasonable ground, or to accomplish an objective unrelated to the purpose of the proceedings;

 

This punishes a person for asking whether their request was answered properly – the chief reason for the Office of Information Practice’s very existence. (See HRS 92F-41 and 92F-42 ) One of OIP’s statutory jobs is to encourage public comment and involvement in the interest of keeping government accountable, but this point punishes requestors for scrutinizing government.

 

 

-(6) Abandonment of requests when the fee is not waived, and the request is for a purpose other than obtaining access to the records

 

If we give up after finding out it’s going to cost $200 to find out what name the DOH means when they say “President Obama”, it means we don’t deserve access to any government records – according to this point.

 

 

-(7) Requests that only marginally promote the public interest in disclosure under this chapter, including requests focused on an agency’s handling of the requester’s own requests or correspondence.

 

 

The reference to “marginally promote the public interest in disclosure” is bitter irony because government disclosure is required under UIPA if there is a SCINTILLA of public interest in disclosure. See OIP Opinion Letters 01-03 (p 6), 92-15 (p. 4), and 94-15 (p. 4) This reference is intended to undo that standard for disclosure.

 

 

And the “agency’s handling” cuts to the chase of the whole bill. The agency’s handling is not to be questioned. But that is the primary reason for even having open records laws: to keep government honest. Under this bill, a person acting in accordance with the purpose of UIPA is to be denied the rights given by UIPA.

 

This bill is a badly-concealed attempt to undo UIPA.

 

 

So why did this bill come up? Will Espero introduced this bill on January 27, 2010 – 2 weeks after I published “Red Flags in Hawaii”, a blog post using official UIPA responses and government publications to expose unethical and criminal behavior on the part of Hawaii government officials. I had requested an investigation from every government entity I could contact in Hawaii and in that blog post I published their refusals to investigate. I documented the breaches of laws and rules.

 

Instead of giving me the investigation I requested, they hurried to write a bill that would undo UIPA so no more “vexatious requestors” could expose the corruption in their own government.

 

On Thursday, Feb 18th, 2010 a hearing was scheduled for the following Tuesday. The next day the Honolulu Advertiser printed an article about persistent requests to the Department of Health, mentioning Espero’s bill. On Feb 23 a hearing was held regarding the bill.

 

There were three people who testified at the hearing: Acting OIP Director, Cathy Takase; Ombudsman Robin Matsunaga, and Alice Hall, Acting President and CEO of the quasi-governmental Hawaii Health Systems Corporation. Takase testifying makes sense because in the bill the OIP would make the determination that a person was a “vexatious requestor”. Matsunaga testifying makes sense because the Ombudsman would have the power to overturn the determination. But Alice Hall takes a little more explaining.

 

The Hawaii Health Systems Corporation is the company that oversees most of the hospitals in Hawaii. DOH Director, Chiyome Fukino, sits on the board of directors of that Corporation. This bill was tailor-made to address the requests Fukino’s DOH office had received, so Fukino was obviously involved in the crafting of this bill. That she supports this bill is self-evident. But to draw in the HHSC is significant

 

Why? Because when Leo Donofrio stated on his blog that he was going to ask then-OIP Director Paul Tsukiyama to initiate disciplinary proceedings against Fukino for ethics breaches, Tsukiyama accepted an offer one week later for a prestigious and influential position in the HHSC. In my blog I suggested that Fukino had used her influence on the Board of Directors of the HHSC to offer Tsukiyama the job in order to keep him from initiating disciplinary proceedings against her.

 

In fact, all 3 people who testified at this hearing were themselves (or represented groups who were) subjects of the investigation I requested – in a letter I sent on January 4, 2010 to all members of the Hawaii House and Senate, as well as to the governor and lieutenant governor.

 

This bill was introduced by Senator Espero 23 days after I requested an investigation from Hawaii legislators and 14 days after I went public with the documentation for my claims. Look at #5 above. Requests for an investigation are definitely singled out as behavior that will get a person black-listed.

 

The timing and the testimony by the otherwise-unlikely CEO of HHSC lead me to believe that this bill is targeting me – and specifically because of the blog post in which I dared to go public with my request for an investigation and the reasons and documentation to support why I think an investigation is needed.

 

The testimony given by these 3 women was very interesting. OIP Director Cathy Takase strongly supports the bill in order to protect agencies from people who are too “mentally ill” to realize their request has already been answered. (Note: labels of mental illness have always been used to dispose of people questioning government actions). Ombudsman Robin Matsunaga doesn’t want the power to overturn OIP’s “vexatious requestor” determinations. Alice Hall supports the bill.

 

On Feb 23rd The committee on JGO recommended that “the measure be PASSED, WITH AMENDMENTS. The votes in JGO were as follows: 3 Aye(s): Senator(s) Taniguchi, Gabbard, Nishihara; Aye(s) with reservations: none ; 1 No(es): Senator(s) Slom; and 2 Excused: Senator(s) Takamine, Bunda.”

 

Only one senator voted to protect the intent and effectiveness of Hawaii’s open records law, UIPA.

 

 

I propose a better way to handle legitimate requests while decreasing the potential for harassment from the public:

 

 

1) Make sure that the DOH (or other agency) has the legally-required documentation about their procedures and makes it available to the public online.

 
 

2) Make sure that the DOH (or other agency) understands what their own Administrative Rules mean – and follow the proper procedure to change outdated terminology and procedures.

 
 

3) Make all authorized index data – including data intended to be grandfathered in as public index data when UIPA was passed in 1988 – available in a searchable database online.

 
 

4) Send immediate notice that an e-mailed UIPA request has been received so that there is no question of whether e-mails have been “lost”. This would have eliminated a lot of my requests – one of which was sent SEVEN TIMES before Okubo acknowledged that she got it. I didn’t want to be a nag, but I’ve had requests to both DOH and OIP that were “lost” so I waited 20 days to hear back only to find that they hadn’t been received.

 
 

5) Use Glomar responses only when they are appropriate, and not trying to hide a Glomar response by making mutually-exclusive claims on the “Notice to Requestor” form. These responses only confuse the requestors and result in multiple requests having to be made just to clear the smoke.

 
 

6) Answer questions. This isn’t required by law but answering one question is a lot easier than having to find all documents about a certain subject and sending them all.

 
 

7) Be truthful in all statements. For instance, HRS 338-18(a) does not forbid all disclosures. It forbids disclosures that are NOT AUTHORIZED BY LAW OR ADMINISTRATIVE RULES.

 
 

8) Don’t allow the DOH Director to illegally hide the Administrative Rules for 2 years when lots of people are asking about them and requesting to see them.

 
 

9) Stop the punitive rule changing. Requiring index data requests to be done by snail-mail and charging $7.50 for “Joe Smith, male, birth” is not saving anybody any work at the DOH office. It is ADDING work. The purpose is transparent: to punish people for asking for what they are authorized to receive.

 
 

 
 

10) Don’t spend over a year saying that law prohibits you from saying what is on a birth certificate and then all of a sudden make a press release saying what’s on a birth certificate without saying why you’re now suddenly able to do what you said was prohibited.

 

11) Obey OIP Opinion Letters, Hawaii statutes, and Administrative Rules when requestors point them out to you.

Corroboration Re: Cert Numbers Assigned

Corroboration that Certificate Numbers were Given by State Registrar

 

Janna’s birth certificate shows that certificate numbers were given by the Hawaii State Registrar

 

Janna’s birth certificate  shows she was born on Tuesday, Dec 21, 1971, at Kapiolani Hospital. The certificate was signed by the attending doctor 9 days later, on Dec 29, 1971, and was accepted by both the local and state registrar the day after that – Thursday, Dec 30.

 

This certificate gives us the key to understand a lot about the process. We know from “Public Health Regulations” Chapter 8, Section 4, that local registrars were required to collect certificates for a week and then deliver them to the state registrar’s office. This requirement makes sense because births were required to be reported to a registrar within a week of the birth. The exception to the weekly transmittal of certificates was the outlying islands, which were to instead collect certificates until the 4th day of the month and then mail all the certificates for the month to the state registrar.

 

Once at the state registrar’s office the certificates were given certificate numbers – according to Janice Okubo (Hawaii Dept of Health Communications Director), whose claim is also corroborated by National Vital Statistics Reports.

 

Janna’s birth certificate also corroborates Okubo’s claim that certificates were given a number at the state registrar’s office, as you will see below.

 

Every Kapiolani birth certificate I’ve seen thus far from the statehood era shows that the state registrar received the certificates on Fridays.

 

Except this one. On this one the registrars accepted the birth certificate on a Thursday. And not the Thursday after the Tuesday birth; this wasn’t received in the state registrar’s office until the FOLLOWING Thursday.

 

To understand that, you have to see from the 1971 calendar that the Friday when the certificates would normally have been delivered to the state registrar fell on Christmas Eve, which was a federal holiday. So the certificates weren’t delivered that week. Midway through the next week, someone apparently realized that the office was going to be closed the following Friday as well, for New Year’s Eve, which was also a federal holiday. So they delivered 2 weeks’ worth of certificates on Thursday, Dec 30th.

 

When Janna’s birth certificate was received at the state registrar’s office there were 2 weeks’ worth of certificates from Kapiolani in the pile. There was possibly a similar 2-week pile from Queens – the other hospital which, together with Kapiolani, delivered most of the babies in Honolulu. And there was a month’s worth of birth certificates from the outlying islands that wouldn’t be sent to the state registrar’s office until Jan 4, 1972. In 1971 (see page 59) we see that there were 1,332 births in Hawaii in December. If about half those births were in the pile at the state registrar’s office or from outlying islands and not yet sent in, that would mean there were about 650 birth certificates that would have been numbered after Janna’s if hers was at the top of the pile. If hers was in the middle of the pile there would be 300-400 certificates numbered after hers.

 

What is her certificate number? 15,396. How many 1971 births were recorded in Hawaii? According to the CDC’s Vital Stats Report, 15,838. That means that there were 442 people who received a number after Janna’s in 1971. Exactly what we would expect if Janna’s birth certificate was in the middle of the pile at the registrar’s office.

 

 

Comparisons of other birth certificates also show that the number was given by the state registrar.

 

There has been speculation that the hospitals either had pre-numbered birth certificates within a range of numbers or that the hospitals were even given mechanical stamps that would only allow them to stamp the certificates within a certain range of numbers. If this were the case we would expect to see a range of numbers that was only used by Kapiolani, or by Queens (Kaiser), or by Army Tripler, or other hospitals.

 

In fact, however, below is a list of birth certificate numbers and hospitals I’ve compiled from birth certificates posted online or by personal communications from people willing to give just this information about their certificates. I’ve listed them according to their order in the calendar year (albeit different years, so this is just a general comparison) – which is the order that the numbers would be given if the state registrar numbered the certificates as they were received in the state office:

 

Date received Cert# Hospital

Jan, 1978     974            Kapiolani

June 1962     8,498            Wahiawa

Aug 1969 9,351            Kaiser (Queens)

Aug 1961    10,637            Kapiolani

Sept 1968    10,170            Army Tripler

Dec 1971    15,396            Kapiolani

Dec 1988    18,644            Army Tripler

 

The certificate numbers for Kapiolani range from 974 in January of 1978, to 15,396 in Dec of 1971. If Kapiolani was given a mechanical stamp that would only stamp certain numbers, the stamp would have to go from 0 to 15,400.

 

And there would have been at least 3 other hospitals which encroached on Kapiolani’s numbers. If blocks of numbers were assigned, the numbers could go as high as necessary, up to 999,999. There would be no need for other hospitals to use the ones assigned to Kapiolani.

 

To summarize: Janice Okubo’s statement that the certificate number was given by the state registrar matches what the CDC has said AND what the birth certificates we can observe actually show.

 


 

Delayed BC and Foreign Birth Forms

Delayed Birth Certificate and Foreign Birth Forms

1955 Territorial Public Health Statistics Act

This is the Territorial Public Health Statistics Act

(continued on following pages)

 


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

What follows is the law converting the Territorial Statute to State Statute

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

Confirmation that Certificate Number Given by State Registrar’s Office

The source for this post has withdrawn permission for me to post it.

An identical response was received by another person who has given me permission to post it.:

From: Okubo, Janice S. [mailto:janice.okubo@doh.hawaii.gov]
Sent: Friday, January 29, 2010 2:46 PM
To: (redacted)
Cc: oip@hawaii.gov
Subject: RE: UIPA request

 Aloha Mr. (redacted),

 It has been brought to my attention that although the department does not have any records responsive to your UIPA records request, a further explanation may be helpful. 

 Historically, the terms “Date accepted by the State Registrar” and “Date filed by the State Registrar” referred to the date a record was received in a Department of Health office (on the island of Oahu or on the neighbor islands of Kauai, Hawaii, Maui, Molokai, or Lanai), and the date a file number was placed on a record (only done in the main office located on the island of Oahu) respectively.

 Historically, most often the “date accepted” and the “date filed” is the same date as the majority of births occur on Oahu (the island with the largest population in our state).  In the past, when births were recorded on paper they may have been accepted at a health office on a island other than Oahu, such as Kauai.  The paper record would then need to be sent to Oahu to have a file number placed on it, and the filed date would then be sometime later (as you know, the state of Hawaii is comprised of multiple islands with miles of water in between).  The electronic age has changed this process significantly, and it was determined some time ago that one date would suffice.

Janice Okubo
Hawaii State Department of Health


From: (redacted)
Sent: Sunday, October 04, 2009 6:25 PM
To: Okubo, Janice S.
Subject: UIPA request

Ms. Janice Okubo, Director                                   October 4,  2009

Hawaii State Department of Health

Via email janice.okubo@doh.hawaii.gov

 UIPA Record Request

 Dear Ms Okubo:

 In accordance with the UIPA, I am requesting all records that document, or show the Rules, Regulations and Policies regarding the criteria or methods used to determine whether a Certificate of Live Birth (COLB) will  show either or both of the following, and the difference between the criteria  and where the information used to determine the statement (1 or 2) comes from such as where on a long form Birth Certificate that criteria is derived from:

  1)  Date Accepted by State Registrar

  2)  Date filed by Registrar

 I am requesting documents that show the rules in effect in 1960 to date including  any changes since then.

 To put it in simpler terms I am requesting any records or documents that show why some COLB’s show Date Accepted by State Registrar and why some COLB’s   show Date filed by Registrar along with who makes that determination.

 I request a Public Interest Waiver of  fees as the information is not readily available to the public and I intend to make the information readily available to the public and I have the ability to do so.  Neither chapter 117 of title 11 Hawaii Administrative Rules nor Hawaii Public Health  Regulations are readily available online or at local law libraries.

 Sincerely

(Name and contact info redacted)

Complete E-mail Response to Terri K from DOH

Complete E-mail Response to Terri K from DOH

(Including all requests included in the final response)

This is the e-mail that was sent by the Hawaii Department of Health to Terri K. It includes the history of communications which shows what the DOH knew they were responding to. As the Office of Information Practices determined on appeal of this response, this is a denial of access to all the records requested, without a Glomar response (“if any” statement) – which confirms the existence of the requested records to which access is being denied.

 

RE: Please add to my UIPA request

From: Okubo, Janice S. (janice.okubo@doh.hawaii.gov)

Sent: Thu 9/03/09 3:48 PM

To: Terri K (redacted)

 

Aloha Terri K,

 

I am responding to your latest e-mails on behalf of Dr. Fukino and the Department of Health.

Section 92F-13, Hawaii Revised Statutes, says that disclosure is not required for government records that are protected from disclosure by state law. Section 338-18, Hawaii Revised Statutes, is just such a law. It prohibits disclosure of vital statistics records to anyone who does not have a direct and tangible interest in the record. Those persons with a direct and tangible interest are listed specifically in the statute. Under section 338-1, Hawaii Revised Statutes, vital statistics records include registration, preparation, and preservation of data pertaining to births and other vital events, as well as related information.

 

Therefore, neither a birth certificate nor any information related to a birth certificate may be disclosed to a person who does not have a direct and tangible interest in it. You have not shown that you have such an interest in President Obama’s birth certificate, so we cannot disclose to you the birth certificate or any related information.

 

We now consider this matter closed. We do not plan to respond to further UIPA requests from you for President Obama’s birth certificate or any related information.

 

Janice Okubo

Communications Office

Hawaii State Department of Health

1250 Punchbowl Street

Honolulu, Hawaii 96813

Phone: (808) 586-4442

Fax: (808) 586-4444

email: janice.okubo@doh.hawaii.gov

 

Windows Live Hotmail Print Message http://co102w.col102.mail.live.com/mail/PrintShell.aspx?type=me…

_____________________________________________________________________________________

From: Terri K [mailto:redacted]

Sent: Thursday, August 20, 2009 11:13 AM

To: Fukino, Chiyome L.; Okubo, Janice S.

 

Subject: RE: Please add to my UIPA request

In case it isn’t obvious, this portion of my argument and OIP Op. Ltr. No. 90-37 refers to record requests made under PART III of UIPA:

 

“…and in that letter is a paragraph that references FOIA and states “that the U.S. Department of Justice has GENERALLY concluded that individuals have a protectable privacy interest…” rather than saying “ALWAYS concluded” I ask that you will consider my UIPA request on it’s merits.”

Thx

 

 

From: terri (redacted)

To: chiyome.fukino@doh.hawaii.gov; janice.okubo@doh.hawaii.gov

Subject: RE: Please add to my UIPA request

Date: Thu, 20 Aug 2009 15:44:11 -0400

 

Unless, I hear otherwise–my understanding is that my argument was, INDEED, added to my UIPA request.

 

Thx

 

 

From: terri(redacted)

To: chiyome.fukino@doh.hawaii.gov; janice.okubo@doh.hawaii.gov

Subject: Please add to my UIPA request

Date: Thu, 20 Aug 2009 15:07:57 -0400

 

Dear Dr. Fukino-

I would like to add the following argument to my UIPA request sent yesterday (I have copied it below, too):

 

Since President Obama’s UIPA request(s) is not covered by HRS §338 and OIP Op. Ltr. No. 90-37 sets out only a general rule that UIPA requests made under Part II for general records will generally be disclosed subject to redaction under an applicable exception under section 92F-13, Hawaii Revised Statutes; and in that letter is a paragraph that references FOIA and states “that the U.S. Department of Justice has GENERALLY concluded that individuals have a protectable privacy interest…” rather than saying “ALWAYS concluded” I ask that you will consider my UIPA request on it’s merits.

 

In particular, I would like to argue that I am referencing indirectly Dr. Fukino’s public statement (7/27/09) that she saw ‘original vital records’ (plural) by requesting the President Obama’s UIPA request(s). Using deductive reasoning, I see that the only way MORE than one record would verify birthplace and natural-born citizenship is if there were evidence filed in an amendment that would correct factual errors made when his original birth certificate was filed.

 

I am not having luck with verifying the deductive reasoning I used with the Hawaii DoH because they won’t answer simple procedural/policy questions even when I don’t reference any specific individual. However, the typical person (I use that term loosely) would have only a single long-form birth certificate to verify both birthplace and natural-born citizenship. Let me know if I have not explained that clearly.

 

Furthermore, I am curious about ‘clerical errors’ and feel the public has a right to know when a clerical error is made by the state. I don’t seek any of the significant privacy information and do not seek the incorrect or correct or corrected information–just a record that the state made an error. Even if it was 48+ years ago.

 

Please confirm that you received this email and added it to my UIPA request.

 

Thx

 

 

 

Dear Dr. Fukino,

I have been told that you are the correct person to send this UIPA records request to. PLEASE READ ALL OF IT CAREFULLY.

 

Under the Uniform Information Practices Act of the State of Hawaii, “…the people are vested with the ultimate decision-making power. Government agencies exist to aid the people in the formation and conduct of public policy. Opening up the government processes to public scrutiny and participation is the only viable and reasonable method of protecting the public’s interest. Therefore the legislature declares that it is the policy of this State that the formation and conduct of public policy—the discussions, deliberations, decisions, and action of government agencies —shall be conducted as openly as possible.”

 

1.) I request an electronic copy of any and all UIPA requests made by President Barack Obama or anyone claiming to represent him for access to his personal vital records so that he could make’corrections’ to his vital record information.

 

2.) I request an electronic copy of the ruling(s) or opinion(s) of those record requests.

 

3.) Please provide me electronic copies of all communication concerning formal or informal UIPA request(s) made by President Barack Obama or anyone claiming to represent him for access to his personal vital records.

 

4.) Please send me an electronic copy of any and all invoices and receipts of fees paid on behalf of or by President Obama for access to his vital records, amendments or anything pertaining to his vital records.

 

I am not waiving any fees. Please disclose the records incrementally if some are not immediately accessible. If portions are confidential–don’t disclose those portions. I only want public records–none of them are vital records.

 

This request is a Hawaii UIPA (Uniform Information Practices Act) request under section 92F-12.

 

thx

 

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Birth Certificate Number Must Be Disclosed

Birth Certificate Number Must Be Disclosed

 

 

Once information from a government record has been disclosed to the public, the issue of a person’s right to privacy is moot. The information is no longer private, and there is no legal reason to withhold the document containing that information. There is a consistent history showing this legal principle.

 

For instance, OIP Opinion letter 06-07 says (p. 4) that “Second, a matter no longer affects the privacy of the individual where it has been made public or has been published. Op. Att’y Gen. No. 94-01 at 7 (citing in Painting Industry of Hawaii Market Recovery Fund v. Mm, 69 Haw. 449, 746 P.2d 79 (1987)); Op. Att’y Gen. No. $649 (1986).

 

And following that legal principle, OIP Opinion Letter 07-07 states that, “―OIP further notes that, pursuant to statute, DOH itself discloses certain information in the vital records it maintains, and, therefore, individuals would not have a significant privacy interest in that information.”

 

Using the same principle, Opinion Letter 90-04 (page 6 ) points out that when the Hawaii legislature passed The Uniform Information Practices Act (UIPA) to replace the existing “Sunshine Law”, they

Intended to “grandfather in” records that had already been available to the public:

 

Additionally, although the Legislature created several exceptions to mandatory public access to government records in section 92F-13, Hawaii Revised Statutes, it was “not the intent of the Legislature that this section be used to close currently available records, even though these records might fit within one of the categories in this section.” S. Conf. Comm. Rep. No. 235, 14th Leg., 1988 Reg. Sess., Haw. S.J. 689, 690 (1988).

 

 

 

This important point is also noted in a publication using the State of Hawaii web address at http://www.state.hi.us/lrb/par/pub/foi.pdf, which says on page 17 that ” “These exemptions, however, are not to be used to close records that were available to the public before mid-1988, the Legislature indicated (12)” The footnote cites the legislative committee meeting.

 

So records/information that were already available to the public before UIPA was passed are grandfathered in as open to the public. And there can be no privacy interest for information that has already been disclosed to the public or published.

 

And birth certificate numbers were available to the public before UIPA was passed. According to p. 11 of OIP Opinion Letter 90-23 (written in 1990) HRS 338-18 included:

“(d) Index data consisting of name, age, and sex of the registrant and date, type and file number of the vital event and such other data as the director may authorize may be made available to the public.”

 

If you look at HRS 338-18 now, it says there were revisions in 1949, 1955, 1959, 1967, 1977, 1991, 1997, and 2001. So what was cited in the 1990 OIP Letter had been in effect since at least 1977. That means that the date and file number for vital events were records that were available to the general public ACCORDING TO STATUTE before UIPA went into effect in 1988.

 

The UIPA exemptions from disclosure do not apply to those records. They are authorized for release by statutes in existence before UIPA and thus are STILL authorized for release.

And UIPA requires that any records which MAY be released MUST be released. HRS 92F-12(b)(2) says: “(b) Any provision to the contrary notwithstanding, each agency shall also disclose:…    (2) Government records which, pursuant to federal law or a statute of this State, are expressly authorized to be disclosed to the person requesting access”.

So the DOH has the authority to release the birth certificate numbers and dates for certificates issued before 1988, and UIPA requires them to release whatever they are authorized by state law to release.

 

 

Amendment While Deciding to Run

Obama’s Birth Certificate Was Amended in the Six Months Before He Announced Run for Presidency

 

 

In August of 2009 “Terri K” requested documents related to the processing of an amendment to Obama’s birth certificate. In September the Department of Health denied access to those records, thus confirming that they existed.

 

In December I sent a portion of that request:

+++++++++++++++++++++++++++++++++++++++++++++++++

 

—– Original Message —–

From: Nellie

To: chiyome.fukino@doh.hawaii.gov

Sent: Thursday, December 10, 2009 4:28 PM

Subject: UIPA Request

 

12-10-09

Dear Dr. Fukino:

Persuant to UIPA, I request an electronic copy of the invoice and receipt for the fee(s) charged to and paid by President Barack Obama, or anyone claiming to represent him, for amendments made to his vital records.

+++++++++++++++++++++++++++++++++++++++++++++++++++

 

On January 5, 2010, I reminded the DOH that they still hadn’t responded to my request, and the same day I received this in response:

 

 

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—– Original Message —–

From: Okubo, Janice S.

To: Nellie

Sent: Tuesday, January 05, 2010 5:50 PM

Subject: RE: UIPA Request

 

 

Aloha Ms. (redacted),

 

There are no records responsive to your request.

 

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So the receipts for the fees Obama paid to have his birth certificate amended existed in September of 2009 but were destroyed by January of 2010.

 

The General Records Schedule for the State of Hawaii says that cash receipts (3.A.3) and sales journal (3.A.4) are to be kept for 3 years. The departments which hold records have standing orders for routine items to be automatically destroyed when the retention period is past.

 

So the 3-year retention period for the receipts ended sometime between September 2009 and January 2010 – which means their date of creation was sometime between September 2006 and January of 2007. Obama paid to amend his birth certificate during that time.

 

What was going on during that time period?

 

Here it gives a timeline of Barack Obama’s political career. It shows:

 

2006, Oct 22 – Obama announces he is considering a run for the Presidency.

2007, Jan – Obama begins running for US President

 

So it was during the time that Obama was deciding whether to run for the presidency that he decided to amend his birth certificate. Whatever amendment he made was on an item he had been fine with for 45 years and while he was deciding whether to run for the presidency he decided to change that item.

 


 

Amendment Confirmed

Admission of Amendment

 

Hawaii’s Sunshine Law is called UIPA (Uniform Information Practices Act). The government agency which is to oversee that law is the Office of Information Practices (OIP). Their office has attorneys who interpret what the law means and how it applies to specific cases. They advise departments on what their responsibilities are, establish guidelines for procedures and disclosures, act as an advocate for the public to get whatever information is due them, and render official decisions when individuals appeal a department response to a UIPA request.

The OIP has a booklet which explains the rules they have set in place for departments to follow when they receive a request for information. Those rules apply to all government agencies – so there are “uniform information practices”, as the title of the law says. Starting on page 30, the booklet describes how an agency or department is to respond to a request.

The first step is to determine whether they have the requested record. If they don’t have the record or any part of the record requested they must say so. For any record or part of a record that they DO have, they have to determine whether or not they will release it, following the guidelines. If they can or may release it then they must release it. If they deny access to the record, they have to give their legal justification for doing so. Appendix B in the booklet is a “Response to Requestor” Form that can be used, with check-off boxes to show the process.

Sometimes the very existence of a record indicates something a department might want to remain hidden. If there is a legal justification for it to remain hidden they may use a “Glomar response” – an answer such as “The records, if any, are denied”, to say that they cannot reveal whether the requested record exists or not. The OIP issued an official Opinion Letter showing such a response is appropriate where information is specifically protected from disclosure, as for instance the identity of firearm registrants – which is specifically protected from disclosure by statute. Any record which would disclose the identity of a firearm registrant should normally (barring legitimate public concern) be denied with a Glomar response so that confidentiality is not broken.

From that Opinion Letter 07-01, it says on pp. 6-7 (emphasis mine):

For those whose identities are not public, a response that neither confirms nor denies the existence of responsive records maintains the confidentiality of the individual’s identity required by the registration statute. 13 See Haw. Rev. Stat.§ 92F-13(3). Accordingly, OIP believes that HPD should deny such a request by stating that records that would be responsive to the request, if any, are exempt from disclosure pursuant to sections 92F-13(3) and (4).”

The words, “if any” should be inserted into the standard denial in that case because without them, a standard denial confirms the existence of responsive records.

When I mentioned to the OIP that ” Second, the DOH is adding the phrase “if any” to their request denials, which means that they are denying requests for HYPOTHETICAL records and not obeying the rules which require them to say whether the record they have been asked to disclose exists.”, they responded by explaining that the “if any” is a Glomar response, which is used to keep from using the standard denial which would reveal the existence of the requested record:

This was their response:

“2.  Again, since I haven’t seen the request that was made or the agency’s response I can’t determine whether the response was proper.  However, it sounds like you may be referring to what’s commonly known as a Glomar response.  OIP has recognized that such a response may be proper under the UIPA in some circumstances.  See OIP Op. Ltr. No. 07-01 at 6-7.

And when I further asked them about a specific DOH response (“Your request is denied in its entirety as records that would be responsive to the request, if any, are exempt from disclosure pursuant to sections 92F-13(3) and (4). ” the OIP explained the inclusion of “if any” to the standard denial this way:

“I believe the agency response is made in the form it is because what it appears you were trying to do was verify information that would be contained on an individual’s birth certificate.  The Department of Health’s position is that it is prohibited by statute from releasing any information that is contained in a birth certificate.  Thus, the Department is trying to respond to a request that refers to specific information supposedly on a Department record, without actually verifying whether a record containing such information exists, because doing so would effectively disclose protected information.  OIP has generally advised DOH that OIP has recognized that, what is called under federal FOIA law, a “glomar” response, which may be appropriate when merely acknowleding the existence, or nonexistence, of a particular record would reveal information protected by statute.”

So the OIP has twice told me and pointed to OIP Opinion Letter 07-01 that “if any” is added to the standard denial because that keeps the denial from confirming the existence of what was requested. Without the “if any” a denial of access confirms the requested records exist.

Where the existence of a record doesn’t reveal protected information the agency must say whether or not the record exists, according to OIP Opinion Letter 97-8. A denial of access is an admission that a record exists since it is impossible to deny access to something which does not exist.

A person using the alias “Terri K” requested to see any UIPA requests made by President Obama or his representative for access to his vital records in order to amend them, all communications regarding that request, the official response to that request, and any invoices or receipts for fees Obama paid to access or amend his records. Every item requested was denied, according to the official OIP reply to Terri’s appeal of the DOH’s response.

Terri K twice asked OIP attorney, Linden Joesting, if it was appropriate to ask for specific amendment processing records and was told both times that it was appropriate – that if the DOH had the records they should give them and if they didn’t have the records they should say so. This confirms the policy which is openly stated in both OIP Opinion Letter 97-8 above and in the OIP’s UIPA Manual. A denial of access to a record is confirmation that the record exists.

In addition, a request for “any & all material(s) used as support and as evidence of the information put forth in the President’s vital records” was denied. Again, this is an admission that such materials exist. Evidence beyond the birth certificate itself is only required if there is an amendment, if the original certificate is a late certificate, or if the certificate was originally incomplete and had to be completed by a supplementary report. (Incidentally, none of these would be the case for a hospital birth).

Terri K originally made the assumption that there was an amended birth certificate because – in the words of the request to the DOH and OIP –

Using simple deductive reasoning, it’s apparent that President Obama amended his birth certificate. On July, 27, 2009, Dr. Fukino told the public that the DoH maintains “original vital records” that verify President Obama’s natural-born citizenship and that he was born in Hawaii. Now the public knows that the President added other vital records to his ‘single’ original long form birth certificate making them plural: “original vital records.”

 

A single document could verify that an individual is a natural-born citizen and born in Hawaii: an original long form birth certificate. For the President, it took more than one. Therefore, it took an amendment to his record and evidential support which is also maintained by the DoH as original vital record(s). You can only make corrections with respect to information relevant to birthplace and/or NBC status by making a UIPA request for access.

 

There are only two pieces of information relevant to natural-born citizenship: birth place and parentage.

 

Amendments were made to this information and Dr. Fukino told the public so on 7/27/09 when she made this statement:

 

“I, Dr. Chiyome Fukino, Director of the Hawai‛i State Department of Health, have seen the original vital records maintained on file by the Hawai’i State Department of Health verifying Barack Hussein Obama was born in Hawai’i and is a natural-born American citizen. I have nothing further to add to this statement or my original statement issued in October 2008 over eight months ago.”

 

In other words, she said this:

“I…have seen the original vital records…verifying Barack Hussein Obama was born in Hawai’i and is a natural-born American citizen.”

 

The word ‘original’ indicates no new birth certificate was issued, rather the original was marked up with corrections, which is what happens according to statute to ‘amended certificates’.

 

 

Through both words and actions, according to the OIP and DOH Administrative Rules, the Hawaii Department of Health has confirmed that the original birth certificate of Barack Obama has been amended.