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.