May 1, 2014

To: Hawaii Office of Information Practices

RE: Appeal of Public Records Request

I am writing to appeal a public records request I made to the Maui County Medical Examiner via the Maui Police Department.

I made the request for an autopsy report on April 2, 2014. (Attached)

I received a reply dated April 10, 2014. (Attached)

Citing HRS 92F-13(1)(4), 92F-22 and the Health Insurance Portability and Accountability Act (HIPAA) the Maui Police Department or the Medical Examiner had taken a virtual Sharpie to almost every word of the Medical Examiner’s autopsy report before releasing it. The autopsy report I requested was redacted to the point of disappearing into a black hole.

I have two main objections to the reason given for this black out.

1. Hawaii’s Uniform Information Practices Act (UIPA) (HRS 92F) currently classifies medical examiner and coroner autopsy reports as public records subject to UIPA and dictates that copies be released to an “agency or business entity” upon request.

That is why the Maui Police Department offers a request form for the document. It

is a farce to declare a document to be a public record and then virtually black out all the words on the document. The Hawaii statutes that made autopsy reports public records were made with full knowledge as to the personal nature of the document. Those statutes are still in force.

The Hawaii Office of Information Practices (OIP) is charged with administering UIPA. OIP has concluded several times that Hawaii autopsy reports are subject to UIPA and that “deceased individuals do not have a recognizable privacy interest in their autopsy reports “.

In fact this December 31, 1991 OIP opinion also concluded that, “Our research disclosed no provision of chapter 841, Hawaii Revised Statutes, entitled “Inquests, Coroners,” that expressly prohibits the disclosure of autopsy reports. Accordingly, it is our opinion that autopsy reports are not protected from disclosure by section 92F-13(4), Hawaii Revised Statutes.”

I find no evidence that HRS 841 or any HRS that includes autopsies under the UIPA have been repealed or amended to void the designation of autopsy reports as public records.

2. In 2003, an OIP opinion determined that, in light of HIPAA, their previous views on the rights of deceased individuals “medical records” needed to be re-visited and concluded that medical records from agencies covered under HIPAA, would also be kept private under UIPA.

But here’s the problem, coroners and medical examiners are not considered a “covered entity” under HIPAA. They are not a health care provider, a health care plan or a health care clearinghouse.

http://healthjournalism.org/resources-tips-details.php?id=12#.U1BNW1VdXKg

The overall consensus by legal experts and laypersons is that HIPAA does not apply to coroners, medical examiners and autopsy reports.Greg Frost , a lawyer who has spent years working on HIPAA implementation issues says that coroner records are not covered by HIPAA because they do not provide a medical service or submit billing for medical services. Because of this, reporters are almost always better off going to coroners to get medical information rather than hospitals or doctors.

According to the Reporters Committee For Freedom Of The Press autopsy reports prepared by the Medical Examiner in Hawaii are public records not subject to HIPAA.

The 2003 OIP opinion also tried to expand HIPAA restrictions to agencies not covered under HIPAA. This would be an outrageous misapplication of HIPAA and in direct conflict with Hawaii law, HRS 92F, HRS 841and the majority of OIP’s legal opinions which make it clear that autopsy reports, a document that understandably contain personal information about the decedents body, health and manner of death, are public records.

Aside from blacking out every medical observation made during the autopsy, every lab result, and all imaging studies that were used to “explain [Loretta Fuddy’s] death”, they blacked out her date of birth. This date of birth was printed in her obituary. Why would they black that out?

Other examples, “The decedent is a BLANK female who was a passenger involved in a commercial aircraft crash in ocean waters.” And “She was reportedly markedly afraid, and BLANK while waiting for rescue personnel to arrive.” And “She was witnessed to become BLANK and was subsequently pronounced dead after being brought to shore.” and “Witnesses to be fearful and BLANKBLANKBLANK.”

How are these BLANKS so much more personal than the words that come before and after it?

This portion of the blacking out was arbitrary and capricious. The blacking out of all evidence as to the manner of death was a violation of Hawaii statutes and the UIPA.

In Closing:

Loretta Fuddy was involved, knowingly or not, in the production of Barack Obama’s forged birth certificate and now she’s dead. She stepped into that vault at the Hawaii Department of Health and into history. She retrieved something from that room and purportedly passed it off to Obama’s lawyer Judith Corley. Two days later, on April 27, 2011, a PDF image of a forged Hawaiian birth certificate was posted on the White House website.

There is a huge, valid public interest in her death. It is a suspicious death and refusing to release her autopsy just adds to the controversy.

1. Hawaii classifies autopsy reports as public records under HRS statutes and UIPA. Those statutes and UIPA are still active.

2. OIP has consistently ruled that autopsy reports are public records.

3. HIPAA was wrongfully applied by the OIP to an agency, the Maui County Medical Examiner’s Office, that is not considered a “covered entity” under HIPAA and therefore is not subject to HIPAA.

4. According to Hawaii law redactions on an autopsy report are to be limited to specific bits of protected information like the decedent’s social security number, home address, information about named living persons that may have been included in the autopsy report.

5. Current HRS that make autopsy reports public records subject to UIPA are not made null and void by HIPAA or by an opinion of the OIP that misapplies HIPAA. HIPAA does not legally apply to the Maui County Medical Examiner, a non-HIPAA covered entity.

Relief Requested: If one does not skirt Hawaii law, the autopsy report, with minor redactions (unless law enforcement is investigating a murder), must be released. I request that the entire autopsy report be released subject to minor redactions of the decedents social security number, home address and any information about named living persons that may have been included in the report.

Linda Jordan