They’re not legally REQUIRED to disclose it under the Administrative Rules, but they ARE required to disclose it under UIPA. Itamura is only processing this according to the Administrative Rules and HRS 338. And his conclusion is that the HDOH can disclose the record but doesn’t have to. If you look only at the Administrative Rules, the word used in almost all cases is “may”. So if it was just Administrative Rules involved, the HDOH wouldn’t have to issue copies of anything.
But I just noticed HRS 338-13. That REQUIRES the HDOH to issue certified copies, the contents of a certificate, or any part thereof to any applicant in accordance with HRS 338-16, 338-17, and 338-18. So that means that what is authorized for release to an applicant by 16, 17, and 18 are REQUIRED to be released. That takes it out of the “may” realm and into the “shall” realm.
AND under UIPA, any records whose disclosure is not FORBIDDEN by law are considered discloseable public records. A non-certified abbreviated birth, death, or marriage certificate is a PUBLIC RECORD, because HRS 338-18(a)defers to the Administrative Rules, which authorize the public disclosure of those records.
What Itamura is saying in this response is that the combination of HRS 338-18a and the Administrative Rules mean that Fukino CAN disclose the record. And UIPA says that if the record CAN be disclosed it MUST be disclosed.
There are 2 legs in this relay. Itamura took the first leg, acknowledging that the records CAN be disclosed - which totally contradicts what the HDOH has been claiming all along. Then OIP was supposed to take the other leg and apply UIPA to the situation, which says that if it CAN be disclosed, it MUST.
Not surprisingly to me, the OIP balked. If what Joesting gave me for an answer was accurate, then the OIP should be disbanded because they don’t have any job to do; the agencies themselves get to decide what they will or won’t disclose, and UIPA doesn’t mean anything. That’s pretty much what the “Vexatious Requestor Bill” was trying to accomplish anyway - to neuter UIPA. If that’s the case, I say Hawaii could solve a lot of their fiscal problems by just getting rid of the OIP altogether, since they don’t do anything.
they ARE required to disclose it under UIPA.
UIPA has several exclusions, including
"it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital statistics records, or to copy or issue a copy of all or part of any such record, except as authorized by this part or by rules adopted by the department of health.
HRS 338-13. That REQUIRES the HDOH to issue certified copies, the contents of a certificate, or any part thereof to any applicant in accordance with HRS 338-16, 338-17, and 338-18. So that means that what is authorized for release to an applicant by 16, 17, and 18 are REQUIRED to be released.
You cite 338-13, -16, -17 and -18. Please note 338-18 (b) which states
The department shall not permit inspection of public health statistics records, or issue a certified copy of any such record or part thereof, unless it is satisfied that the applicant has a direct and tangible interest in the record.and then goes on to list which applicants qualify. So it is quite clear that 338.18 states no information except index data should be released to an unqualified applicant. Just being an applicant doesn't cut it, sorry.
Once again, we seem to be split on which takes precedence - a statute from 1977, subsequently amended and updated, or a 1955 rules document from the HDOH. Certainly HDOH ought to have updated its rules a long time ago. But I chalk this up to bureaucratic snafu and incompetence. It does not surprise me in the least that the HDOH would follow the later statute which forbids disclosure, rather than the older agency rules which do not.