Hawaii Five Uh-Oh Part II

I trust Leo knows exactly where he is going with this UIPA Investigation and this newest report brings more government deceit, clues and questions. The most compelling question in my mind right now is:

“Will Hawaii comply with its own open government laws?”

Click on the photo for the entire report:

http://ralphlosey.files.wordpress.com/2007/11/hawaii.jpg?w=600

The UIPA at 92F-3 explicitly defines “government records” as follows:

“Government record” means information maintained by an agency in written, auditory, visual, electronic, or other physical form.

When a state agency in Hawaii is faced with a request for government records, the Office of Information Practices Administrative Rules govern all responses to such a request.  State agencies may not issue a response which doesn’t conform to the OIP Administrative Rules.

Agencies must answer every request for government records within the four following types of response:

1.  the agency has the record and will provide it to you

2. the agency does not maintain/possess the record

3.  the agency has the record but you are denied access to it

4. the agency needs more information from you to understand your request

These are examples of the four basic responses available to a state agency.  For example, an agency may not tell a person that the agency refuses to say whether they possess a certain record.

This very issue was discussed  in OIP Opinion Letter 97-08, wherein a staff attorney for the Corporation Counsel was faced with a UIPA request concerning a legal memo.  The staff attorney refused to acknowledge whether the legal memo existed by citing attorney client privilege.

The requestor appealed to the OIP and the staff attorney was then required to submit to an investigation by the OIP into whether the memo existed.  The staff attorney had to cooperate with the OIP investigator.  He admitted that the memo did not exist and the requestor was informed of that fact.

When an agency “denies” access to a government record, the denial has a very explicit effect in that it operates as a statutory admission by the agency that they do maintain (possess) the requested record.

An agency can only deny access to a record it does actually maintain.

If the agency does not have the record, then the agency must notify the requestor that the record is not maintained by the agency.

TerriK’s UIPA REQUESTS

TerriK assumed that President Obama had amended his vital records and simply asked for the amended records and all applications by Obama to amend or correct his vital records.  TerriK also requested all records of fees paid by Obama to amend the records.

The DoH was required to answer TerriK’s UIPA requests within one of the four responses discussed above.  And they never responded thereto by alleging that the amendment records she requested were not maintained by the DoH.

Instead, the DoH responded by denying TerriK access to the requested records citing the privacy protections of Haw. Rev. Stat. 338-18(b).

Obviously, there is no privacy right to a record which does not exist.

The DoH has therefore admitted that they maintain amended birth records for President Obama.

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