Dear Esteemed Members of the Judiciary Committee:
Having so little notice of this hearing, I have little time to do anything but submit an article that I’ve already posted on my blog regarding SB2937. I recommend that this bill be tabled until everyone has had a chance to look at the “Red Flags in Hawaii” article referenced herein, as well as the many pages of documentation linked to in that article, which is found at https://butterdezillion.wordpress.com/2010/01/11/red-flags-in-hawaii-2/ These are very serious claims and Hawaii’s attempt to silence those calling for an investigation rather than address these serious issues is causing people across the country to seriously question the integrity of the entire system of government in Hawaii.
Finding documents (see http://www.thepostemail.com/2010/03/09/hi-director-of-department-of-health-perjures-herself-before-hi-senate-committee/) which showed that Chiyome Fukino’s late testimony regarding SB2937contained an exaggeration of over 400% doesn’t help ease nationwide doubts. Private citizens paid a large amount of money to reimburse Hawaii for the cost of responding to the UIPA request which revealed Fukino’s inaccuracy. I would say that UIPA request was a service to Hawaii’s ombudsman who will almost certainly be called upon to investigate this misconduct – a service paid for by the very people this bill attempts to silence – including a news editor who still believed we have freedom of the press in this country.
Thank you for hearing me out. May the rule of law and the United States Constitution live long and prosper in this nation and all its states.
“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 “the right of the people to peacably assemble”, or “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 – as well as unconstitutional.
-(2) Splitting requests to avoid or minimize fees;
The DOH at one point 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.
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 don’t try 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. If the rules authorize disclosure, disclosure is not forbidden.
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.