. SI.- . DOUGLAS S. CHIN 6465 - iLtr. Attorney General of Hawaii 2w 23 g3?; HEIDI M. RIAN 3473 ANGELA A. TOKUDA 9408 .. Deputy Attorneys General - 1 Department of the Attorney General, State of Hawai?i 465 South King Street, Room 200 Honolulu, Hawai?i 96813 Telephone: (808) 587-3050 Attorneys for Defendant DIRECTOR OF THE DEPARTMENT OF HEALTH, STATE OF HAWAII IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII KOKUA COUNCIL FOR SENIOR CIVIL NO. 16-1-1421?07 (KTN) CITIZENS, an unincorporated association, MEMORANDUM IN Plaintiff, OPPOSITION TO MOTION FOR SUMMARY JUDGMENT, FILED vs. DECEMBER 23, 2016; DECLARATION OF KEITH R. EXHIBITS CERTIFICATE OF SERVICE DIRECTOR OF THE DEPARTMENT OF HEALTH, STATE OF HAWAII, HEARING: DATE: February 2, 2017 Defendant TIME. 10.30 3.111. JUDGE: Hon. Karen T. Nakasone MEMORANDUM IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT, FILED DECEMBER 23, 2016 I. INTRODUCTION Defendant Director ofthe Department of Health, State of Hawaii (Defendant or DOH) argues the following: (I) a genuine issue of material fact exists showing that Defendant did not violate chapter 92F, Hawaii Revised Statutes (HRS), (2) a genuine issue of material fact exists showing that Defendant did not violate disclosure requirements under chapter 92F, and (3) ?o a Plaintiff?s request to issue an order in the nature of mandamus is improper or not bene?cial. II. BACKGROUND Haw. Rev. Stat. (HRS) ?321-1.8 was enacted in 2013 as Act 213 to ?make available to the public, ?ee of charge, information collected from the department's inspections in certain care facilities and establish a working group to develop a new inspection form to be posted online with information that is fair to care home operators and useful to the public.? 2013 Haw. Sess. Laws Act 213 ?1 at 672. The department of health designated the Of?ce of Health Care Assurance (OHCA) to implement HRS ?321-1.8. OHCA performs all state licensing activities on healthcare facilities, agencies and organizations in Hawaii. Decl. of Ridley, 1] 3. This includes conducting all on-site state licensing inspections and Medicare certi?cation inspections on behalf of the US. Centers for Medicare and Medicaid Services (CMS). Id, A. INSPECTION REPORTS AND ONLINE POSTING OF INSPECTION REPORTS Inspections are only conducted for the relicensing of all facilities. Haw. Admin. R. (HAR) Thus, inspection reports are only generated for relicensing. There are two types of facilities: non-Medicare and Medicare. Decl. of Ridley, 1] 4. If the facility is a Medicare facility, two inspection reports will be generated?one for state licensing and one for CMS certi?cation. 1; at 5. Medicare has its own federal requirements for the contents and disclosure of inspection reports. 42 U.S.C. Pursuant to Medicare regulations, 1 Speci?cally, regulations for public disclosure of results of inspections and activities require the following: Each State, and the Secretary, shall make available to the public? information respecting all surveys and certi?cations made respecting skilled nursing facilities, including statements of de?ciencies. within 14 calendar days after such information is made available to those facilities, and approved plans of correction 42 (emphasis added). a? OHCA is required to collect statements of de?ciencies. Li. Medicare inspection reports are posted on Medicare?s website called the ?Nursing Home Compare? site at: Only one inspection report is generated for non-Medicare facilities. Li. at 6. All non-Medicare inspection reports are posted on website at: The OHCA and Medicare inspection reports appear in different formats as federal regulations require that a ?Summary Statement of De?ciencies? be collected and disclosed to the public. 42 U.S.C. ?1395i- For all inspection reports, the following information is required to be posted on website: (1) The date of the inspection; (2) A description of violations of relevant state laws or rules, if applicable; (3) Plans of correction and the status of corrective actions in response to any violations, if applicable; (4) A list and description of all corrective actions taken by the facility, if applicable, to be submitted by the facility and added to the report at a later time, as determined by the department; and (5) Other information regarding the quality and conditions of the facility the department of health deems appropriate. HRS A?er an inspection is conducted, a list of de?ciencies, if any, is given to the licensee or primary care giver of the facility. Haw. Admin. R. (HAR) ?1 The licensee or primary care giver of the facility is required to develop a ?plan of correction? for those de?ciencies cited within ten working days. An acceptable plan for correcting the de?ciencies must include the ?time frame for correction and the preventive measures that will be instituted to ensure compliance.? The entire inspection process includes not just the inspection itself, but also the 2 Each type of facility has its own set of Administrative Rules that have the same inspection requirements. For ease, administrative rules for Adult Residential Care Homes (ARCH) and Expanded ARCH (HAR ?11-100.1) will just be referenced throughout this Memorandum. 3 development of the plan of correction and corrective actions by the facility and the review and approval of the plan by OHCA. Decl. of Ridley, 1] 7. This is because interim decisions may be made as to whether the facility actually violated any statutes or regulations cited during the inspection, depending on the facility?s responses to the citations. Li. Thus, some of the violations may have already been corrected by the facility, so those cited violations are removed from the inspection report. Li. Finalizing the inspection report includes staff reviewing, assessing and deliberating over the results of the inspection, the facility?s plan of correction and corrective actions. Once this entire process occurs, a ?nalized inspection report is generated and then posted on website. I_d. B. REDACTION PROCESS FOR ONLINE POSTING OHCA established internal policies and procedures for redacting non-Medicare inspection reports in order to be compliant with state and federal privacy and con?dentiality laws, including the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and chapter 92F. Exhibit For Medicare inspection reports, OHCA provides CMS with the inspection reports and CMS conducts its own redactions of the inspection reports for posting on its website. Decl. of Ridley, 1] 9. KOKUA CHAPTER 92F REQUEST TO OHCA OHCA received Plaintiff? 3 chapter 92F request (hereinafter, request) through its counsel on or around December 18, 2015 as the request ?bounced back? to Plaintiff?s counsel due to an ?incomplete? address. Decl. of Ridley, 1l 11; Exhibit The request was for inspection reports on Adult Residential Care Homes (ARCH) and Expanded ARCH conducted from January 1, 2015 and a?er and an inventory of E-ARCHs (only pursuant to HRS Plaintiff?s Exhibit A. Due to the holidays, on or about January 3, 2016, OHCA responded to Plaintiffs request by e?mail. Exhibit In e-mail, it was noted that the inspection 4 m, reports were ?incomplete.? OHCA considered Plaintiff?s request closed as Plaintiff?s counsel did not respond back to OHCA within any reasonable time after January 3, 2016 e-mail. Decl. of Ridley, 11 13. On January 29, 2016, OHCA received a letter from the Office of Information Practices (OIP) dated January 26, 2016, requesting assistance on behalf of Plaintiff to access inspection reports occurring on January 1, 2015 or after and an inventory for all facilities licensed under HRS Exhibit On the same date, OHCA responded via e-mail to Plaintiff?s counsel that although these inspection reports ?are available online on the Department of Health?s website . . . free of charge,? it will grant Plaintiff?s request to provide these records in hard copies ?upon receipt of a prepayment for the records.? I_d, On January 30, 2016, OHCA submitted via e?mail a ?Notice to Requester? to Plaintiff?s counsel pursuant to HAR ?2?71?l3. Exhibit On February 4, 2016, OHCA responded to Plaintiff?s February 2, 2016 letter addressing Plaintiff?s concerns. Exhibit OHCA explained that it never denied access to inspection reports, and that its partial denial was due to the exceptions listed under HRS OHCA also explained that the ?non-release? of inspection reports were due to the fact that ?they do not exist? either because an inspection has not been conducted and therefore no inspection reports are generated or that the reports were not ?nalized. Decl. of Ridley, 1] 17. On March 4, 2016, OIP issued a letter to Plaintiff?s counsel stating that March 2, 2016, we discussed the DOH's January 30 and February 4, 2016, responses and the Reports posted on the DOH's website at which, combined, appear to respond to your request for the Reports.? Exhibit Although OHCA ?did not provide an itemized fees and costs structure? to Plaintiff, OIP closed the request at Plaintiff?s request. Accordingly, OHCA thought Plaintiff?s request was closed as OIP af?rmed that response to Plaintiff?s request was appropriate. Decl. of Ridley, ?l 20. After OIP closed Plaintiff?s request, there was no further communication between Plaintiff and OHCA. g1, at 21. Then on July 25, 2016, Plaintiff ?led this instant lawsuit. IV. ARGUMENTS A. THERE IS A GENIUNE ISSUE OF MATERIAL FACT SHOWING THAT OHCA DID NOT VIOLATE CHAPTER 92F AS OIP DETERMINED THAT OHCA APPROPRIATELY RESPONDED TO KOKUA CHAPTER 92F REQUEST l. determination in favor of OHCA should be given deference as it did not abuse its discretion in determining that OHCA appropriately responded to Kok? Council?s Chapter 92F request In determining whether an agency determination should be given deference, the standard applied by this court is as follows: [W]hen reviewing a determination of an administrative agency, we ?rst decide whether the legislature granted the agency discretion to make the determination being reviewed. If the legislature has granted the agency discretion over a particular matter, then we review the agency's action pursuant to the deferential abuse of discretion stande (bearing in mind that the legislature determines the boundaries of that discretion). If the legislature has not granted the agency discretion over a particular matter, then the agency's conclusions are subject to de novo review. Olelo: The Corp. for Cmtv. Television v. Of?ce of Info. Practices, 116 Hawai?i 337, 344, 173 P.3d 484, 491 (2007) (internal citation omitted). OIP's powers and duties generally include: providing guidance to the public and agencies as to when agency records should be opened to the public; monitoring agency compliance with and adopting procedural rules related to the disclosure of agency records. In this case, balancing the public's interest in open government records against an individual's right to privacy under article I section 6 and section 7 of the Hawaii Constitution is within OIP's discretionary area of expertise and is reviewed pursuant to the deferential abuse of discretion standard. at 346, 173 P.3d at 493; HRS policy of conducting government business as openly as possible must be tempered by a recognition of the right of the people to privacy, as embodied in section 6 and section 7 of article I of the constitution of the state of Hawaii?). Here, contrary to Plaintiff?s argument that OHCA was ?not compliant with HRS chapter in responding to Plaintiffs request ?within ten business days of its letter dated January 26, 2016,? (Pl.?s Mot. Summ. J. at 7), Notice to Requester to Plaintiff on January 30, 2016 and subsequent e-mail on February 4, 2016 explaining its basis for partial denial and non-release of inspection reports, was suf?cient pursuant to chapter 92F and clearly within the ten business days requirement. HAR and -14. This was validated by the OIP in its March 4, 2016 letter to Plaintiff?s counsel, stating, March 2, 2016, we discussed the DOH's January 30 and February 4, 2016, responses and the Reports posted on the DOH's website at which, combined, appear to respond to your request for the Reports.? Exhibit decision was not an abuse of discretion, as it clearly acted within the scope of its powers and duties under HRS M, 116 Hawai?i at 344, 173 P.3d at 491. Accordingly, this court should give deference to determination that OHCA satis?ed Plaintiff? 3 request and summary judgment should be denied as to Count I. a. OHCA is not required to produce records that do not exist. Although there may have been approximately 500 ARCH and licensed in the state as Plaintiff?s claim in its February 2, 2016 letter (Plaintiff?s Exhibit F), not all of these facilities are either due for relicensing; or if they are, inspections have not been scheduled for those facilities. Decl. of Ridley, 1] 18. In other words, the total number of ARCH and E-ARCH licensed facilities does not necessarily equal the number of inspection reports because if no relicensing is required, then no inspection is required and therefore no inspection report is generated. 1d; Or if a facility was due for relicensing, not all of these facilities have had an inspection conducted yet and therefore no inspection report is generated. lgL. OIP has opined that ?[t]he UIPA applies only to existing records? and that in such cases, ?the UIPA is not applicable . . . because based on a reasonable search for records, there is no records that would be responsive to [such a] request.? OIP Op. Ltr. No. 97-8 at 6 (Sept. 9, 1997). Further, if an agency staff has ?actual knowledge? that the type of record requested was never created, the agency is ?absolved from having to conduct a search reasonably likely to produce the requested records.? OIP Op. Ltr. No. Fl6-03 at 3-4 (May 6, 2016). Here, OHCA had actual knowledge that inspection reports did not exist because some of the facilities were either not due for relicensing or an inspection was not conducted. Dec]. of Ridley, 1] 17. Thus, pursuant to UIPA, OHCA is absolved from having to conduct a search for inspection records that do not exist. b. OHCA is not required to produce inspection reports that are not ?nalized as it would frustrate a legitimate government purpose. Under the UIPA, agencies may withhold access to documents that are predecisional and deliberative when disclosure would ?'ustrate a legitimate government function. HRS OIP Op. Ltr. No. 00-01 at 5 (Apr. 12, 2000). This authority to withhold access, termed the ?deliberative process privilege,? is authorized so that agencies can candidly and freely exchange ideas and opinions. 1d, at 3-4. Before a document can be withheld on the basis of the deliberative process privilege, it must be determined to contain a communication that is both predecisional, ?antecedent to the adOption of an agency policy,? and deliberative, the communication must be ?a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal policy matters.? at 5. Signi?cantly, documents, by their very nature, are typically predecisional and deliberative. They ?re?ect only the tentative view of their authors; views that might be altered or rejected upon ?lrther deliberation either by their authors or by superiors.?? Exxon Corp. v. Dep't of Energy, 585 F. Supp. 690, 698 (D.D.C. 1983) (internal citation omitted); gee gLsQ, OIP Op. 8 an Ltr. No. 90-8 (Feb. 12, 1990) (drafts of agency correspondence); and 01? Op. Ltr. No. 91-16 (Sept. 19, 1991) (draft of master plan prepared by a consultant). Here, prior to ?nalizing the inspection report, the facility must provide a plan of correction for violations cited during the inspection that has to be reviewed and approved by OHCA. HAR Finalizing the inspection report includes staff reviewing, assessing and deliberating over the results of the inspection, the facility?s plan of correction and corrective actions. Decl. of Ridley, 7. staff may also make interim decisions as to whether the facility actually violated any statutes or regulations cited during the inspection, depending on the facility?s responses to the citations. 1; Thus, some of the cited violations may have already been corrected by the facility, so those violations are removed from the inspection report. id, Accordingly, these draft inspection reports are predecisional and deliberative and are not required to be disclosed. HRS 2. There is a genuine issue of material fact showing that OHCA did not violate online posting requirements under HRS The interpretation of a statute is a question of law reviewable de novo. Peer News LLC v. City County of Honolulu, 138 Hawai?i 53, 60, 376 P.3d 1, 8 (2016). There are established rules to guide the court in statutory construction: First, the fundamental starting point for statutory interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, implicit in the task of statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists. Olelo, 116 Hawai?i at 344, 173 P.3d at 491. The inspection report must be posted on website ?within ?ve working days of the conclusion of each inspection.? HRS (emphasis added). This phrase was clarified by OHCA in the Senate Ways and Means Committee hearing on 2013 Haw. Sess. Laws 9 Act 213 (which was then H.B. No. 120, H.D. 2, SD. 2) that: Your Committee notes the clarifying information provided by the Department of Health that indicates inspections are not considered concluded until all plans of correction have been submitted by the facility and accepted by the Department of Health. The department also indicated that depending upon the number or severity of de?ciencies, this process may take several weeks following the actual on?site inspection. S. Stand. Comm. Rep. No. 1370 in 2013 (emphasis added). Accordingly, the entire ?inspection process? includes not just the inspection itself, but also the development of the plan of correction and corrective actions by the facility and the review and approval of the plan by OHCA. Decl. of Ridley, 1] 7. Pursuant to HAR ?11~100.1- after the inspection is conducted and if there are any de?ciencies cited, the facility has ten working days to develop a plan of correction. Once the inspection process is concluded, a ?nalized inspection report is generated and then posted on website. Thus, in a plain reading of the statute and administrative rules, along with clarifying information provided by OHCA to the legislature as to its inspection process, a genuine issue of material fact exists showing that OHCA did not violate the online posting requirements under HRS and summary judgment as to Count I should be denied. B. THERE IS A GENUINE ISSUE OF MATERIAL FACT SHOWING THAT OHCA DID NOT VIOLATE DISCLOSURE REQUIRMENTS UNDER CHAPTER 92F l. OHCA has a legal duty and obligation under HRS to protect the privacy interest of the individual and to comply with state and federal patient privacy and con?dentiality laws including HIPAA OHCA regulates and licenses covered entities that handle protected health information, and is thus subject to HIPAA and other state and federal privacy and con?dentiality laws. The inspection reports contain medical information and other sensitive personal information about residents living in the facilities, and therefore OHCA must take extreme precautions before posting information online. Thus, it is position as re?ected in its redaction policy to err on the side of overprotecting the identity of a resident by over-redacting. Exhibit at 10 re a? in doubt on whether to redact information that could directly or indirectly lead to the identi?cation of the patient/resident, redact the information in order to optimize patient/resident con?dentiality?). The Hawaii Supreme Court?s decision in Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., 138 Hawai?i 14, 375 P.3d 1252, reconsideration denied 138 Hawai?i 50, 375 P.3d 1288 (2016), supports redaction policy in order to protect the privacy of the individual, declaring that privacy standards under article 1, section 6 of the Hawaii State Constitution are ?more stringent? than the federal right to privacy and HIPAA. at 138 Hawai?i at 19, 375 P.3d at 1257. Thus, OHCA takes the position to err on the side of redacting over and beyond HIPAA requirements in order to protect the resident?s constitutional right to privacy. 45 CPR. (provides a list of speci?c ?identi?ers? such as street address, zip code, telephone and fax numbers, e-mail addresses, and license plate numbers, that are considered ?protected health information? and must be Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., No. 12-00064 2016 WL 6996982, at *7 (D. Haw. Nov. 23, 2016), reconsideration denied, No. CV 12-00064 LEK-KSC, 2017 WL 89559 (D. Haw. Jan. 10, 2017)?. However, as a state agency, OHCA is also bound to public transparency and access to information. In dealing with a chapter 92F records request, OHCA is required to balance access to public information and the competing legislative intents to provide inspection reports to the public to the extent possible without actually violating the applicable con?dentiality laws. OIP Op. Ltr. No. 05-03 at 5 (Jan. 19, 2005) (it is OlP?s duty to ensure this balance is being met). This balance also includes posting information online that is both ?fair to care home operators and use?il to the public.? 2013 Haw. Sess. Laws Act 213 ?1 at 672. Achieving this balance is subjective and fact dependent as each inspection report must be thoroughly reviewed in light of state and federal privacy and con?dentiality laws. 11 Plaintiff points out in its Motion that in comparing inspection reports between Medicare and the state, reports posted on the Medicare website ?provides much more material information about the status of the facility and its services? whereas the OHCA website ?contains extensive redactions.? Pl.?s Mot. Summ. J. at 15. OHCA contends that this may be true because state privacy and con?dentiality laws are more stringent than its federal counterparts. Pac. Radiation Oncology. at 138 Hawai?i at 19, 375 P.3d at 1257. In addition, state administrative rules for chapter 92F requests prohibit agencies from ?replac[ing] information that has been segregated with information or text that did not appear in the original record.? HAR The Medicare inspection reports posted on the Medicare website does contain bracketed terms such as or or However, this is clearly prohibited under HAR ?2-71-17(b) as these terms did not appear in the original record and could appear to replace information that has been segregated. Thus, comparing the Medicare inspection reports posted on the Medicare website versus the OHCA website is futile. Moreover, many facilities that OHCA inspects are residential homes and small facilities that could have just one or two residents within an isolated or small community. In these cases, any information could ideally have a ?reasonable basis to believe the information can be used to identify? them. 45 C.F.R. ?l64.514(a) and _se_e also. Pac. Radiation Oncology, supra. Thus, even non-medical information, such as the street address of the facility, could identify the resident living in that facility. 45 CFR Because inspection reports are posted online, there is even more ?danger of abuse in the use and/or dissemination of such information,? including identity theft. Oahu Publications Inc. v. Takase State, No. 2016 WL 7209809, at *6 (Haw. Dec. 12, 2016). The Hawaii Supreme Court in Oahu Publications, discussed the legislative history of article 1, section 6: 1 2 [Tjhe drafters of article 1, section 6 were similarly cognizant of the possible accessibility and misuse of personal information in an increasingly digital age: Another area of concern that may be alleviated by [article I, section 6] is the issue of informational privacy, or the ability of a person to control the privacy of information about There is often a legitimate need for government or private parties to gather data about individuals, but there is danger of abuse in the use and/or dissemination of such information The danger of inclusion of inaccurate data being retained in some computer bank, thereby affecting the life of an individual, is inherent in our modern 151, (citing Stand. Comm. Rep. No. 69 in 1 Proceedings of the Constitutional Convention of Hawai?i of 1978, at 674 (1980)). Thus, due to these state and federal privacy and con?dentiality laws and administrative rules, a genuine issue of material fact exists showing that OHCA did not violate disclosure requirements under chapter 92F. 2. Pursuant to HRS ?321-1 .81b), inspection reports posted online do not rguire ?summary statement of de?ciencies? HRS ?321-l .8 sets forth a list of items that are required to be included in the online inspection report: b) Each report shall be posted on the department of health's website within ?ve working days of the conclusion of each inspection and shall include the following information: (1) The date of the inspection; (2) A description of violations of relevant state laws or rules, if applicable; (3) Plans of correction and the status of corrective actions in response to any violations, if applicable; (4) A list and description of all corrective actions taken by the facility, if applicable, to be submitted by the facility and added to the report at a later time, as determined by the department; and (5) Other information regarding the quality and conditions of the facility the department of health deems appropriate. A plain reading of this list does not include a summary statement of de?ciencies, although OHCA does collect the information because it is required for Medicare facilities. 42 U.S.C. However, it is not required to be posted on website nor is it required to be included in inspection reports. In other words, inspection reports for Medicare facilities contain additional information collected by OHCA pursuant to federal Medicare requirements. The examples that Plaintiff cites to in its Exhibit regarding entire redactions and ?extensive blackouts? for the Ann Pearl Nursing Facility, fall under the ?Summary Statement of 13 to De?ciencies? column, and are not required to be posted on website. Thus, there is no violation of HRS ?321~l if OHCA redacts entire portions of texts under the ?Summary Statement of De?ciencies? section. Even if de?ciencies are required to be posted, however, block redactions are appropriate as in some instances, only articles, conjunctive words, or punctuations are left after redaction and would render the sentence or paragraph meaningless. In those cases, redaction policy is to redact the entire sentence or paragraph. Exhibit at Section C. REQUEST TO ISSUE AN ORDER IN THE NATURE OF MANDAMU IS IMPROPER OR INEFFECTUAL OR NOT BENEFICIAL Haw. R. Civ. Proc. Rule 81.1 clearly states that the action of the writ of mandamus is ?abolished in the circuit courts, except when directed to a court of inferior jurisdiction? (emphasis added). Here, this case has not been adjudicated by any inferior court. Thus, Plaintiff?s Count should be dismissed. Even assuming arguendo this court had jurisdiction to issue a writ of mandamus, which OHCA contends it does not, such a writ ?is an extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right to the relief requested and a lack of other mus to redress adequately the alleged wrong or to obtain the requested action.? My, MES 91 Hawai?i 200, 204, 982 P.2d 334, 338 (1999) (emphasis added) (citation omitted). As explained above, the relief Plaintiff requests is anything but clear and indisputable and Plaintiff can seek redress through other means such as going through the OIP for future assistance. Thus, a mandamus is ineffectual and not bene?cial. IV. CONCLUSION Based on the forgoing, a genuine issue of material fact exists showing that Defendant did not violate chapter 92F as OIP indicated that Defendant adequately responded to Plaintiff?s l4 d? on request. Pursuant to the UIPA, Defendant is not required to produce records that do not exist or may withhold access to records that are predecisional and deliberative when disclosure would frustrate a legitimate government function. A genuine issue of material fact exists showing that Defendant did not violate disclosure requirements under chapter 92F as it has a legal duty to protect the privacy interest of the individual and to comply with state and federal patient privacy and con?dentiality laws, including HIPAA. Defendant must exercise careful review and redaction as sensitive information is being posted online. Oahu Publications, supra. administrative rules also prohibit state agencies from ?replacing information that has been segregated with information or text that did not appear in the original record.? HAR ?2-71- 17(b). In light of these factors, the Department established redaction policy and procedures for inspection reports to ensure proper redactions are conducted. Finally, Plaintiff?s request to issue a writ of mandamus is abolished in this court and even if this court had jurisdiction, Plaintiff?s request for relief is not clear and indisputable and can be redressed through other means such as the OIP. m, at 91 Hawai?i at 204, 982 P.2d at 338. For the forgoing reasons, this court should deny Plaintiffs motion in its entirety. DATED: Honolulu, Hawaii, January 25, 2017. QL HEIDIM RIAN ANGELA A. TOKUDA Deputy Attorneys General Attorneys for Defendant DIRECTOR OF THE DEPARTMENT OF HEALTH, STATE OF HAWAII 15 rm an IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII KOKUA COUNCIL FOR SENIOR CIVIL NO. 16-1-1421-07 KTN CITIZENS, an unincorporated association, DECLARATION OF KEITH R. RIDLEY Plaintiff, .vs. DIRECTOR OF THE DEPARTMENT OF HEALTH, STATE OF HAWAII, Defendant. DECLARATION OF KEITH R. RIDLEY I, KEITH R. RIDLEY, hereby declares that: l. I am the Chief of the Of?ce of Health Care Assurance (OHCA) which is under the Department of Health. 2. I make this declaration based on upon personal knowledge and I am competent to testify as to all matters stated herein. 3. OHCA performs all state licensing activities on healthcare facilities, agencies and organizations in Hawaii. This includes conducting all on-site state licensing inspections and Medicare certi?cation inspections. 4. There are two types of facilities that OHCA inspects: non-Medicare and Medicare. 5. If the facility is a Medicare facility, two inspection reports will be generated?one for state licensing and one for CMS certification. (a 6. Only one inspection report is generated for non-Medicare facilities. 7. The entire inspection process includes not just the inspection itself, but also the development of the plan of correction and corrective actions by the facility and the review and approval of the plan by OHCA. This is because interim decisions may be made as to whether the facility actually violated any statutes or regulations as cited during the inspection, depending on the facility?s responses to the citations. Thus, some of the cited violations may have already been corrected by the facility, so those violations are removed ?'om the inspection report. Finalizing the inspection report includes my staff reviewing, assessing and deliberating over the results of the inspection, the facility?s plan of correction and corrective actions. Once this entire process occurs, a ?nalized inspection report is generated and then posted on website. 8. OHCA established internal policies and procedures for redacting non-Medicare inspection reports in order to be in compliance with state and federal privacy and con?dentiality laws, including the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and chapter 92F. A true and correct copy is attached as Exhibit 9. For Medicare inspection reports, OHCA provides CMS with the inspection reports and then CMS conducts its own redactions of the inspection reports for posting on its website. 10. On or about December 14, 2015, I reviewed Mr. Collins? email with a message stating that ?this letter bounced back with an incomplete address,? a true and correct copy of which is attached as Exhibit 11. I received the letter on or about December 18, 2015. 12. Due to the holidays, on or about January 3, 2016, I responded to Plaintiffs chapter 92F request by e-mail, a true and correct copy of which is attached as Exhibit 13. After my January 3, 2016 e?mail to Mr. Collins, I considered Plaintiff?s request closed as Mr. Collins did not respond back to me within any reasonable time a?er my e-mail. 14. On January 29, 2016, I received a letter from the Of?ce of Information Practices (OIP) dated January 26, 2016, requesting assistance on behalf of Plaintiff to access inspection reports occurring on January 1, 2015 or after and an inventory for all facilities licensed under HRS On the same date, I sent an e-mail to Mr. Collins to con?rm receipt of the request, a true and correct copy of which is attached as Exhibit 15. On January 29, 2016, I responded via e-mail to Mr. Collins that although these inspection reports ?are available online on the Department of Health?s website . . . ?'ee of charge,? that OHCA would grant Plaintiff?s request to provide these records in hard copies ?upon receipt of a prepayment for the records.? Exhibit 16. On January 30, 2016, I e-mailed a ?Notice to Requester? to Mr. Collins, a true and correct copy of which is attached as Exhibit 17. On February 4, 2016, I responded via e-mail to Mr. Collins? February 2, 2016 letter addressing Plaintiff?s concerns about the Notice to Requestor, a true and correct copy of which is attached as Exhibit I explained that OHCA has never denied access to inspection reports, and that the partial denial was due to the exemptions listed under HRS ?92F?l3. I further explained that the ?non-release? of inspection reports were due to the fact that ?they do not exist? either because an inspection has not been conducted and therefore no inspection reports are generated or that the reports are not finalized. IQ 18. Although there may have been approximately 500 ARCH and E-ARCHs licensed in the state as Mr. Collins claims in his February 2, 2016 letter, not all of these facilities are either due for relicensing or if they are, inspections have not been scheduled for those facilities. In other words, the total number of ARCH and licensed facilities do not necessarily equal the number of inspection reports because if no relicensing is required, then no inspection is required and therefore no inspection report is generated. Or if a facility was due for relicensing, not all of these facilities have had an inspection conducted yet and therefore no inspection report is generated. I explained this to Mr. Collins in my February 4, 2016 e-mail. 19. On or around March 4, 2016, I received a carbon copy of a letter that OIP sent to Mr. Collins indicating that the request was closed. A true and correct copy is attached as Exhibit 20. I presumed Plaintiff?s request was closed as OIP af?rmed that response to Plaintist request was appropriate and stated that the ?Request for Assistance ?le? was closed. 21. After OIP closed Plaintiff?s request on March 4, 2016, there were no ?lrther communications between myself and Mr. Collins until my of?ce received this lawsuit. I declare under penalty of perjury under the laws of the State of Hawaii that the foregoing is true and correct. DATED: Honolulu, Hawaii, January 25, 2017. KEITH R. EXHIBIT DAVID Y. IGE VIRGINIA PRESSLER, M.D. DIRECTOR or HEALTH GOVERNOR OF HAWAII In reply. please refer to tile: STATE OF HAWAII DEPARTMENT OF HEALTH OFFICE OF HEALTH CARE ASSURANCE 601 KAMOKILA BOULEVARD. ROOM 337 KAPOLEI, HAWAII 96707 REDACTING AND POSTING OF INSPECTION REPORTS Policy and Procedure December 15, 2015 Revised August 10, 2016 The Hawaii Department of Health (DOH), Office of Health Care Assurance (OHCA) is the state agency responsible to conduct onsite state licensing surveys (inspections) on the licensure of health care facilities, organizations, and agencies to determine compliance with Hawaii state regulations. At the conclusion of the onsite survey, a survey or inspection report of de?ciencies is written and fonrvarded to the facility. The deficiencies are speci?c notations of non-compliance with licensure regulations. The facility is required to return to compliance and must submit a written plan of correction (POC). The POC must be acceptable to OHCA. PURPOSE The purpose of this Policy and Procedure is to provide guidance and instruction for the proper redacting of personal or con?dential medical information pursuant to Section 92F-13, 92F-14, and 92F-22, Hawaii Revised Statutes (HRS) and the posting of inspection reports pursuant to Act 213 (SLH 2013). Act 213 was codi?ed into Section 321-1.8, HRS. This shall also be followed for the redacting of inspection reports when a request for a copy of an inspection report is requested as a public record through the Freedom of Information Act (FOIA) or the Hawaii Uniform Information Practices Act (UIPA). SUMMARY OHCA shall redact and post inspection reports as required by law. STATUTORY AUTHORITY Section 92F-13, 92F-14, and 92F-22 provide exceptions, exemptions and limitations to disclosure of information. Section 321-1.8, HRS, requires that ?(e)ach report shall be posted on the department's website within ?ve working days of the conclusion of each inspection and shall include the following information: Redacting and Posting of Inspection Reports August 10, 2016 Page 2 (1) (2) (3) (4) (5) POLICY The date of the inspection; A description of violations of relevant state laws or rules, if applicable; Plans of correction and the status of corrective actions in response to any violations, if applicable; A list and description of all corrective actions taken by the facility, if applicable, to be submitted by the facility and added to the report at a later time, as determined by the department; and . Other information regarding the quality and conditions of the facility the department of health deems appropriate. Pursuant to Section 92F-13, 92F-14, 92F-22. and 321-1 .8, HRS, it is the policy of the DOH and of OHCA to redact and post inspection reports on the OHCA website for the public to access free of charge at any time. The posting of inspection reports is for state inspections for license renewal only. They do not include complaint investigation reports, based on an interpretation of the posting requirement for inspections (Section 321-1 .8, HRS). The inspection reports shall only be posted for those facilities where the facilities? plans of corrections (POC) have been accepted by OHCA pursuant to statute. In other words, a survey is considered concluded when a completed inspection report for online posting includes the statement of deficiencies and the complete and accepted POC from the provider. The online posting is limited to the following types of facilities pursuant to Section 321-1.8, HRS, and identi?ed by their respective OHCA section: 9. Adult Day Health (Medicare Section) Adult Day Care (Licensing Section via Community Ties of America Adult Residential Care Homes (ARCH) and Expanded ARCHs (E-ARCH) Assisted Living Facility (Licensing Section) Community Care Foster Family Home (Licensing Section via CTA) Developmental Disabilities Domiciliary Home (Licensing Section) Skilled Nursing Facility and Nursing Facility (Medicare Section) Intermediate Care Facility for Individuals with Intellectual Disabilities (lCF-llD) (Medicare Section) Special Treatment Facility (Licensing Section) CTA will provide electronic versions of redacted reports. no we?, Redacting and Posting of Inspection Reports August 10, 2016 Page 3 PROCEDURE 1. Review Inspection Report Each inspection report must be reviewed to ensure the absence of confidential, HIPAA-protected personal health care information. The reports cannot include any proper names of client residents (also known as patients). 2. Copy Inspection Report a. Hard Copy Reports: (1) (2) If an inspection report contains con?dential, protected information, the inspection report shall be scanned into a digital version for redacting. Original inspection reports must not be redacted; they shall remain as originally written. If an inspection report does not contain confidential, protected information, the inspection report shall be scanned into an electronic version for uploading. b. Digital Copy Reports: (1) (2) If an inspection report contains con?dential, protected information, and if the report is in a digital version, the inspection report shall be copied into a 2"d digital version for redacting. The original digital version shall not be redacted. If an inspection report does not contain confidential, protected information, the inspection report shall be uploaded as is. 3. Redact Inspection Report a. How to Redact: (1) (2) The digital version of the inspection report shall be redacted using redaction software supplied by OHCA. CTA may use other redaction methods until such time as they obtain redaction software. If there are multiple items to be redacted in a single sentence or in a paragraph, the entire sentence or paragraph may be redacted in its entirety. For simplicity and efficiency, the entire sentence or Redacting and Posting of Inspection Reports August 10, 2016 Page 4 paragraph including all words, spaces between words, and any punctuation may be redacted. b. What to Redact: The following information shall be redacted from each inspection report being prepared for public disclosure or posting. However, at no time shall the original inspection report be redacted, nor shall the information required by statute to be posted be redacted. Refer to Exhibit A for a sample redaction. (1) Patient/resident name including any nick name or initials. Pronouns such as he/she and him/her referring to the patient/resident shall also be redacted. (2) Family or visitor names (3) Any other individually identi?able health information to include but not be limited to: a) Dates of birth b) Home address of patient/resident prior to being admitted c) Social Security Number d) Health status, diagnoses, treatments, admission and discharge dates, or any other common and specific information that could be used to identify the patient/resident. (4) When in doubt on whether to redact information that could directly or indirectly lead to the identification of the patient/resident, redact the information in order to optimize patient/resident con?dentiality. 4. Name the Inspection Report to be Posted The digital version of the report to be posted shall be named using the following naming convention: Provider Name, Type of Provider ADCC, SNF, etc. Initials are ?ne; no need to spell out the type of provider), and Date (calendar year is fine. 2015; no need to identify the specific date of the survey). Examples: ABC Care Home 2015, or Pearl City Nursing Home SNF 2015, etc. 5. Upload Inspection Report a. Inspection reports shall be posted to the OHCA web page Redacting and Posting of Inspection Reports August 10, 2016 Page 5 b. Detailed instructions on how to upload the inspection report are attached as Exhibit B. on How to Post an Inspection Report. This revised Policy and Procedure is effective August 10, 2016, and is approved by: Jan 24, 2017 Keith R. Ridley Chief, Of?ce of Health Care Assurance Approval Date EXHIBIT From: Ta: ?lm Subject: Fwd: Letter to Dr. Pressler dated December 14, 2015 Date: Monday, December 14, 2015 10:05:52 PM Attachmenm: This letter bounced back with an incomplete address. Apologies. Hard copy was sent out in today's mail. Forwarded Message Subject: Letter to Dr. Virginia Pressier dated December 14, 2015 Date: Mon, 14 Dec 2015 08:52:35 -1000 From: Lance D. Collins, To: Virginia Ginny Pressler, M.D. CC: Keith Ridley Original will be sent in today's mail. Law Of?ce of Lance Collins A Law Corporation Post Of?ce Box 179336 Honolulu, HI 96817 808.243.9292 This e?mail is intended for the addressee shown. It contains information that is con?dential and protected from disclosure. Any review, dissemination or use of this transmission or its contents by persons or unauthorized employees of the intended organizations is strictly prohibited. EXHIBIT re a. From: mm To: Lang Quins. 2mg; Etesslet. yg'm'mia gang. n.9, Subject: Re: Fwd: Letter to Dr. Virginia Pressler dated December 14, 2015 Date: Sunday, January 3, 2016 1:42:24 PM Aloha, Dr. Collins. The available inspection reports are in the process of being posted. Our of?ce has dedicated a staff person to this effort and away from other important and required duties. The deployment of this person may delay the processing of new license applications or conductng of onsite inspections which are also a required duty of this of?ce. In addition, we have hired a temporary person beginning tomorrow (Monday, January 4) to assist in the posting of back logged reports, speci?cally on the posting of ARCH and E-ARCH reports. Be advised, however, that many reports are not yet completed in their fullest, so their posting was delayed temporarily. Nevertheless, we will begin posting the incomplete reports instead of waiting longer. Unfortunately, this will mean incomplete information being available to the public and may convey an incomplete and distorted View of the residential care homes. In short, please know that the reports will be posted as soon as we are able by using the dedicated and temporary staff resources and until such time as we obtain permanent full time Thank you for your patience and understanding. Keith Ridley Sent from Qu?leLMchiJe On Sun, Jan 3, 2016 at 1:28 AM -0800, "Lance D. Collins, wrote: Aloha Dr. Pressler, have not received a response or acknowledgment of the request my office made on behalf of Kokua Council to access government records made by e-mail and regular postal mail on December 14, 2015 to you and Mr. Ridley. Please advise. Mahalo lance* Forwarded Message Subject: Letter to Dr. Virginia Pressler dated December 14, 2015 Date: Mon, 14 Dec 2015 08:52:35 -1000 From: Lance D. Collins, To: Virginia Ginny Pressler, MD. EXHIBIT From: Ridley, Keith R. To: Cc: Boc: Subject: RE: Fwd: Letterto Dr. Virginia Pressler dated December 14, 2015 Date: Friday, January 29, 2016 6:45:00 PM Aloha, Dr. Collins. We are in receipt of your request through the Office of Information Practices (OIP) for a copy of the inspection reports of health care facilities listed under HRS Many of these reports are available online on the Department of Health?s website, and more are being posted. They are and will be available free of charge. However, as indicated in your request to the OIP, since you prefer to receive these reports directly despite them being available free of charge on our website, we will provide you with the available records upon receipt of a prepayment for the records. Our office will provide you with a written response to your request as to the cost involved to produce these reports and upon receipt of your payment, we will provide you with the records. Mahalo. KWE. Chief, Of?ce of Health Care Assurance Phone: (808) 692-7227 From: Ridley, Keith R. Sent: Sunday, January 3, 2016 1:42 PM To: Lance D. Collins, Pressler, Virginia Ginny, MD. Subject: Re: Fwd: Letter to Dr. Virginia Pressler dated December 14, 2015 Aloha, Dr. Collins. The available inspection reports are in the process of being posted. Our of?ce has dedicated a staff person to this effort and away from other important and required duties. The deployment of this person may delay the processing of new license applications or conducting of onsite inspections which are also a required duty of this of?ce. In addition, we have hired a temporary person beginning tomorrow (Monday, January 4) to assist in the posting of back logged reports, speci?cally on the posting of ARCH and E-ARCH reports. Be advised, however, that many reports are not yet completed in their fullest, so their posting was delayed temporarily. Nevertheless, we will begin posting the incomplete reports instead of waiting longer. Unfortunately, this will mean incomplete information being available to the public and may convey an incomplete and distorted view of the residential care homes. EXHIBIT at NOTICE TO REQUESTER TO: Lance D. Collins (Requester?s name) FROM: Department of Health, Of?ce of Health Care Assurance, Keith R. Ridley, (808) 692-7 227 Keith.Ridley@doh.hawaiigov (Agency, and agency contact person?s name, telephone number, email address) DATE THAT THE RECORD REQUEST WAS RECEIVED BY AGENCY: January 29, 2016 DATE OF THIS NOTICE: January 30, 2016 GOVERNMENT RECORDS YOU REQUESTED (attach copy of request or provide brief description below): 1. 2. 3. 4. Inspection reports on Adult Residential Care Homes (ARCH) and Expanded ARCH (E-ARCH) during 2015 not posted on the DOH website. Inventory of E-ARCH facilities pursuant to HRS Copies of the above inspection reports and inventory of E-ARCH facilities at no cost to the requester. THIS NOTICE IS TO INFORM YOU THAT YOUR RECORD REQUEST: Will be granted in its entirety. Cannot be granted. Agency is unable to disclose the requested records for the following reason: Agency does not maintain the records. (HRS 92F-3) Other agency that is believed to maintain records: Agency needs further clari?cation or description of the records requested. Please contact the agency and provide the following information: Request requires agency to create a summary or compilation from records, but requested information is not readily retrievable. (HRS Will be granted in part and denied in part, QR Is denied in its entirety Although the agency maintains the requested records, it is not disclosing all or part of them based on the exemptions provided in HRS 92F-13 andlor or other laws cited below. (Describe the portions of records that the agency will not disclose.) RECORDS OR APPLICABLE AGENCY INFORMATION WITHHELD STATUTES JUSTIFICATION l. The inspection reports on ARCHs and E-ARCHs during 2015 not posted on the DOH website are not posted on the DOH website either because the ARCHs or E-ARCHs were not inspected or the inspection reports are not ?nalized. Therefore, the inspection reports are not available and the request cannot be granted. However, once the reports are ?nalized, they Will be posted on the DOH website for public access at no cost. If requester insists to receive a copy of the paper or electronic copy of these records even after they become available on the DOH website, the request will be granted upon receipt of prepayment for the copies. The inventory of E-ARCH facilities are posted on the DOH website and are available for public access at no cost. Refer to If the requester insists to receive a copy of the paper or electronic copy of this inventory, the request will be granted upon receipt of prepayment for the copy. OIP (rev. 12/1/2015) no. rs 3. As stated in the OIP letter quoted by the requester, means that, if, after advising a requester that the information sought is available through the website, the requester advised the agency that he or she wants a paper [or electronic] copy and furnishes prepayment for thepaper [or electronic] Please also refer to the below portion of this OIP Notice to Requestor form, Estimated Fees Cost and Payment. As a result, this request is denied. RESPONSIBILITIES: You are required to (1) pay any lawful fees and costs assessed; (2) make any necessary arrangements with the agency to inspect, copy or receive copies as instructed below; and (3) provide the agency any additional information requested. If you do not comply with the requirements set forth in this notice within 20 business days after the postmark date of this notice or the date the agency makes the records available, you will be presumed to have abandoned your request and the agency shall have no further duty to process your request. Once the agency begins to process your request, you may be liable for any fees and costs incurred. If you wish to cancel or modify your request, you must advise the agency upon receipt of this notice. METHOD TIMING OF DISCLOSURE: Records available for public access in their entireties must be disclosed within a reasonable time, not to exceed 10 business days from the date the request was received, or after receipt of any prepayment required. Records not available in their entireties must be disclosed within 5 business days after this notice or after receipt of any prepayment required. HAR If incremental disclosure is authorized by HAR 2-71-15, the ?rst increment must be disclosed within 5 business days of this notice or after receipt of any prepayment required. Method of Disclosure: Inspection at the following location: As requested, a copy of the record(s) will be provided in the following manner: Available for pick-up at the following location: [3 Will be mailed to you. Will be transmitted to you by other means requested: Timing of Disclosure: All records, or the ?rst increment if applicable, will be made available or provided to you: On . 20 . After prepayment of 50% of fees and 100% of costs, as estimated below. For incremental disclosures, each subsequent increment will be disclosed within 20 business days after: The prior increment (if one prepayment of fees is required and received), or I: Receipt of each incremental prepayment, if prepayment for each increment is required. Records will be disclosed in increments because the records are voluminous and the following extenuating circumstances exist: Agency must consult with another person to determine whether the record is exempt from disclosure under HRS chapter 92F. Request requires extensive agency efforts to search, review, or segregate the records or otherwise prepare the records for inspection or copying. Agency requires additional time to respond to the request in order to avoid an unreasonable interference with its other statutory duties and functions. A natural disaster or other situation beyond agency?s control prevents agency from responding to the request within 10 business days. OIP (rev. 12/1/2015] ESTIMATED FEES COSTS AND PAYMENT: FEES: For personal record requests under Part of chapter 92F, HRS, the agency may charge you for its costs only, and fee waivers do not apply. For public record requests under Part II of chapter 92F, HRS, the agency is authorized to charge you fees to search for, review, and segregate your request (even if a record is subsequently found to not exist or will not be disclosed in its entirety). The agency must waive the ?rst $30 in fees assessed for general requesters, OR in the alternative, the ?rst $60 in fees when the agency ?nds that the request is made in the public interest. Only one waiver is provided for each request. See HAR 2-71-19, -31 and -32. COSTS: For either personal or public record requests, the agency may charge you for the costs of copying and delivering records in response to your request, and other lawful fees and costs. PREPAYMENT: The agency may require prepayment of 50% of the total estimated fees and 100% of the total estimated costs prior to processing your request. If a prepayment is required, the agency may wait to start any search for or review of the records until the prepayment is received by the agency. Additionally, if you have outstanding fees or costs from previous requests, including abandoned requests, the agency may require prepayment of 100% of the unpaid balance from prior requests before it begins any search or review for the records you are now seeking. The following is an itemization of what you must pay, based on the estimated fees and costs that the agency will charge you and the applicable waiver amount that will be deducted: For public record requests only: Fees: Search . Estimate of time to be spent: hours ($2.50 for each 15-minute period) Review segregation Estimate of time to be spent: hours ($5.00 for each 15-minute period) Fees waived El general public interest (Only one waiverper request) Other 33 (Pursuant to HAR 2-71- 19 2-71-31) Total Estimated Fees: For public or personal record requests: Costs: Copying Estimate of of pages to be copied: per page, pursuant to HRS ?92-21) Delivery Postage Other Total Estimated Costs: TOTAL ESTIMATED FEES AND COSTS from above: [3 The estimated fees and costs above are for the first incremental disclosure only. Additional fees and costs, and no further fee waivers, will apply to future incremental disclosures. PREPAYMENT IS REQUIRED (50% of fees 100% of costs, as estimated above) UNPAID BALANCE FROM PRIOR REQUESTS (100% must be paid before work begins) 3 OIP (rev. 12/1/2015) 0 TOTAL AMOUNT DUE AT THIS TIME Payment may be made by: I: cash personal check payable to other For questions about this notice or the records being sought, please contact the agency person named at the beginning of this form. Please note that the Office of Information Practices (OIP) does not maintain the records of other agencies, and a requester must seek records directly from the agency it believes maintains the records. If the agency denies or fails to respond to your written request for records or if you have other questions regarding compliance with the UIPA, then you may contact OIP at (808) 586-1400, oinhawaiigov, or 250 South Hotel Street, Suite 107, Honolulu, Hawaii 96813. [rev. 12/1/2015} From: Ridley, Keith R. 1'0: Cc: WW Subject: RE: Fwd: Letter to Dr. Virginia Pressler dated December 14, 2015 Date: Saturday, January 30, 2016 12:41:00 PM Attachments: - - r- Aloha, Dr. Collins. Please see the attached and advise how you wish to proceed, if at all. It appears the Kokua Council may be unfamiliar with our of?ce? 3 website and its contents. For example, the list of ARCHs and the Council requested IS on the DOH website at This link 13 also included on the attachment to this email. If you have any further questions on the attached Notice to Requester, or if you would like for me to walk you through how to access the information on our website, please feel free to call me. I will be more than happy to help you more di1ectly and informally. Meanwhile, please know that the governor has included in his budget our request for additional resources. The budget is at the legislature and we are hopeful the legislature will approve the governor's budget. The resources we requested are important in order to help us better achieve the requirements established by the legislature. Without those resources, the requirements are like an unfunded mandate, and we are unable (not unwilling) to do the work. Thanks. Keith R. Ridley Chief, Of?ce of Health Care Assurance Phone: (808) 692-7227 Original From: Lance D. Collins, Sent: Friday, January 29, 2016 10:30 PM To: Ridley, Keith R. Cc: Pressler, Virginia Ginny, M.D. OIP Subject: Re: Fwd: Letter to Dr. Virginia Pressler dated December 14, 2015 Aloha Mr Ridley, Please ?nd the attached letter dated January 29, 2016. Mahalo lance'? On 1/29/2016 6:45 PM, Ridley, Keith R. wrote: Aloha, Dr. Collins. We are in receipt of your request through the Of?ce of Information Practices (OIP) for a copy of the inSpection reports of health care facilities listed under HRS Many of these reports are available online on the Department of Health?s website, and more are being posted. They are and will be available free of charge. EXHIBIT From: Ridley, Keith R. To: Cc: 912 Subject: RE: Fwd: Letter to Dr. Virginia Pressler dated December 14, 2015 Date: Thursday, February 4, 2016 1:28:00 PM Mr. Collins, I have received your letter. Allow me to answer your concerns. Non-Release of Records: Records are not being released because in several instances, they do not exist. When we don't inspect a facility, as I stated in the Notice to Requestor, an inspection report is not generated. Therefore, it does not exist and there is nothing to release. In other instances, the reports are not ?nalized. Inspection reports go through a review process before they are ?nalized. Any de?ciencies or citations initially observed may be determined to not be a de?ciency or citation during this review process, and they are removed from the report. As a result, it would be unfair to the public and to the residential care home to publicize a report before it is ?nalized. Therefore, the release of these non-?nal reports are denied. These reports may be accessed after they become ?nal. The list of non-final reports is not a record that is created, compiled or maintained; therefore, there is no record to release. Basis for Denial of Access: Your letter claims that I cited HRS 92F ~13 AND (my emphasis) HRS 92F-22, and then you stated that is not a basis to deny access. The OIP Form appears limited in providing me with responses. I chose the best response based on the options on the printed form. Also, the form cites HRS 92F-l3 and/or HRS 92F-22. It was not my intent to speci?cally cite 92F-22 as the basis, but simply to use that selection as the best way to indicate that we were granting in part and denying in part your request. If you have an issue with the OIP Form, please contact OIP. Provisions of HRS 92F-l3: See above. Lack of Resources: I appreciate that Kokua Council disputes the department's budget allocation, but I respect?illy stand by my statement, and I reiterate that several of the records you requested cannot be released because they either do not exist or they are not yet completed. And they do not exist or they are not yet completed due to a lack of resources. ARCH and Vacancy List: I'm a little puzzled why you identi?ed the ARCH and E-ARCH list as "not-current". If you are aware of facilities that should be listed, please let us know. Otherwise, we believe this list as posted on our website is current and, therefore, constitutes the complete inventory. Finally, please advise me if you wish to proceed to receive a COpy of the paper or electronic materials that are posted on our website. If so, we will require a prepayment from you before the records are released. Thank you. Keith R. Ridley Chief, Of?ce of Health Care Assurance Phone: (808) 692-7227 Original From: Lance D. Collins, Sent: Tuesday, February 2, 2016 5:08 PM To: Ridley, Keith R. EXHIBIT STATE OF HAWAII DAVID Y. ?35 OFFICE OF THE LIEUTENANT GOVERNOR ?gamma" OFFICE OF INFORMATION PRACTICES ?m NO. I CAPITOL DISTRICT auzwrne zso scum HOTEL STREET. suns 107 HONOLULU. 95313 Telephone: 18081 586-1400 FAX: 1808) 586-1412 E-MAIL: oip@hawati.gov March 4, 2016 VIA E-MAIL Lance Collins, Esq. PO. Box 179336 Honolulu, HI 96817 Re: Request for Assistance to Access Records (U RFA-P 16-26) Dear Mr. Collins: The Office of Information Practices (OIP) Opened the above-referenced ?le based on the Department of Health?s (DOH) allegedly ?ambiguous and inde?nite [sic]? response to your record request of December 14, 20 I 5. In your request for OIP?s-assistance (RFA), you speci?cally complained that the response to you dated January 3, 2016, was ?ambiguous and inde?nite [sic]? because it failed to provide ?when, if ever, it intends to release the [requested] documents.? OIP has received a copy of the Notice to Requester to you dated January 30, 2016, along with the DOH's e-mails to you dated January 30, 2016 and February 4, 2016, responding to your request for the Healthcare Facilities In5pection Reports (Reports). On March 2, 2016, we discussed the January 30 and February 4, 2016, responses and the Reports posted on the website at which, combined, appear to respond to your request for the Reports. Although the 001-] has not responded to you in the manner required by section 2-71-I4, Hawaii Administrative Rules (HAR), because it did not provide an itemized fees and costs structure, OIP is closing this Request for Assistance ?le at your request. You are entitled to file a lawsuit for access within two years of a denial of access to government records, and need not wait for a determination from OIP to do so. Hawaii Revised Statutes (HRS) 92F-15, (2012). An action for access to records is heard on an expedited basis and, if you are the prevailing party, you are entitled to recover reasonable attomey?s fees and costs. HRS (0. A record requester may also appeal a denial of access to OIP in accordance with chapter 2-73, HAR. HRS 92F-15.5 (2012). If you decide to ?le a lawsuit, you must notify OIP in writing at the time you ?le the action. HRS 92F-15.3 (2012). Lance Collins, Esq. March 4, 2016 Page 2 If you have any questions concerning this matter, please contact the undersigned attorney. Very truly yours, Liza R.l-l. Onuma Staff Attorney cc: The Honorable Virginia Pressler, MD, Director, Department of Health Keith R. Ridley, Chief, Of?ce of Health Care Assurance, Department of Health IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII KOKUA COUNCIL FOR SENIOR CIVIL NO. 16-1-1421-07 KTN CITIZENS, an unincorporated association, CERTIFICATE OF SERVICE Plaintiff, vs. DIRECTOR OF THE DEPARTMENT OF HEALTH, STATE OF HAWAII, Defendant. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 25th day of January, 2017, a copy of the foregoing was duly served upon the following party via US. mail, ?rst-class postage prepaid, addressed as follows: Law Of?ce of Lance D. Collins (and also via e-mail) Lance D. Collins PO. Box 179336 Honolulu, Hawaii 96817 Attorney for Plaintiff KOKUA COUNCIL FOR SENIOR CITIZENS DATED: Honolulu, Hawaii, January 25, 2017. WM RIAN ANGELA A. TOKUDA Deputy Attorneys General Attorneys for Defendant DIRECTOR OF THE DEPARTMENT OF HEALTH, STATE OF HAWAII