Openline
March 1999

1999 Legislative Update:
Bills Affecting Information Practices

Recent OIP Opinion:
Disclosure of Employee Misconduct Records

1999 Legislative Update:
Bills Affecting Information Practices

Health Care Information
Social Security Numbers
Photocopy Charges
Hate Crimes Information
Meetings of State and County Boards
Other Bills and Resolutions

The Office of Information Practices is required to review legislation and make recommendations to the Legislature.

One of the goals of the Uniform Information Practices Act ("UIPA") is to provide for uniform legislation in the area of government information practices. To further this goal, the OIP monitors proposed legislation that has an impact on the UIPA and affects government's practices in the collection, use, maintenance, and dissemination of information.

During the 1999 Regular Session of the Hawaii State Legislature, the Office of Information Practices has been monitoring 298 legislative proposals that could affect government information practices in Hawaii. This article provides summaries of some of those bills. For an expanded list of the bills being tracked by this office, call 586-1400.

Health Care Information

Privacy of Health Care Information
H.B. 351 protects the privacy of health care information by stipulating conditions under which information can be disclosed. It seeks to encourage frank patient-to-physician disclosures and to protect individual privacy rights through the comprehensive regulation of the handling and release of personal medical information.

This bill was developed by a task force of representatives from the private sector and government, with the Office of Information Practices ("OIP") acting as host and coordinator.

H.B. 351 was heard in the House by the committees on Health, Consumer Protection & Commerce, and Judiciary & Hawaiian Affairs. After approval by the House, the bill crossed over to the Senate, where it was referred to the committees on Health & Human Services, and Judiciary.

Epidemiologic Investigations
H.B. 1138 requires health care providers and medical facilities to provide limited diagnostic, treatment, and contact information for use in epidemiologic disease and injury investigations upon request by an authorized representative of the Director of Health.

The OIP provided written advice to the Department of Health regarding language in the bill to ensure protection of individual privacy interests in medical information. H.B. 1138 was approved by the House and referred to the Senate committees on Health & Human Services, Judiciary, and Ways & Means.

Social Security Numbers

H.B. 8 and S.B. 155 prohibit the use of a social security number as an identification number on a driver's license. The OIP testified in favor of these bills because they would protect individuals from identity theft and improper use of their social security numbers. Once access is gained to someone's social security number, not only is the door opened to other very private information about that individual, but it becomes easy to steal one's financial identity.

The OIP has opined in several instances that social security numbers are protected from public disclosure under the UIPA because they carry significant privacy interests. The January 1996 Openline discussed disclosure of social security numbers.

H.B. 8 was approved by the House and referred to the Senate committees on Transportation & Intergovernmental Affairs, and Judiciary. S.B. 155 was approved by the Senate and referred to the House committees on Transportation, Judiciary & Hawaiian Affairs, and Finance.

Photocopy Charges

The OIP testified in favor of two bills that would reduce the charges for photocopies of government records. Both bills were approved by the Senate. S.B. 646 S.D.1 reduces the charges from 50 cents a page to 6 cents a page. This bill, to which were added two unrelated bills, has been referred to the House committees on Water & Land Use, Judiciary & Hawaiian Affairs, and Finance.

S.B. 1016 limits to 10 cents a page the amount each state agency other than the Lieutenant Governor may charge for copies of rules. S.B. 1016 allows separate charges for searching, identifying, and segregating rules to be copied. It also requires posting of the full text of proposed rules on the Lieutenant Governor's website effective January 1, 2000. This bill was referred to the House committees on Judiciary & Hawaiian Affairs, and Finance.

Hate Crimes Information

S.B. 605 proposed to create a civil cause of action for hate crimes, to establish extended terms of imprisonment for offenders, and to create a hate crime reporting mechanism. S.B. 605 S.D. 1 H.D. 1 gutted the bill, replacing it with provisions to establish a temporary pilot program to compile, track, and analyze hate crimes data in Hawaii.

Meetings of State and County Boards

H.B. 996 provides a means of maintaining the confidentiality of information that is required to be kept confidential by a state or federal law, or a state or federal court order, when that information is needed to facilitate the deliberations or decision making of a state or county board.

The OIP testified in support of this bill because it would make the State's public meetings law consistent with the UIPA in recognizing other statutes and court orders that require the confidentiality of certain information.

Other Bills and Resolutions

Open Government
The OIP testified in support of S.C.R. 127, a resolution requesting the Legislative Reference Bureau to determine whether Hawaii's administrative procedures act, public agency meetings law, and records law are currently drafted to ensure the most open government possible.

Privacy of Personal Information
The OIP also testified in support of S.C.R. 93 and H.C.R. 196. These two resolutions request the OIP to coordinate a study of current protections of the privacy of personal information and commercial use of personal information, and to submit proposed legislation to the 2000 legislative session.

Sex Offender Information
S.B. 588 allows inter-agency sharing of all medical, psychological, or mental health records of sex offenders. The OIP testified to have the bill specify the circumstances under which the information would be shared.

Recent OIP Opinion:
Disclosure of Employee Misconduct Records

Where information relating to employee misconduct resulting in the discharge or suspension of the employee may have been removed from the employee's personnel file under a collective bargaining agreement provision, but remains elsewhere in the agency's files, it is subject to disclosure.

Because the disciplinary information requested was created for personnel purposes, the OIP advised the Hawaii Health Systems Corporation ("HHSC") to evaluate such employee disciplinary information, wherever maintained, in a manner consistent with information contained in a personnel file.

Therefore, the HHSC must disclose the following information related to employment misconduct that results in an employee's suspension or discharge, in accordance with section 92F-14(b)(4)(B), HRS:

(1) the name of the employee;
(2) the nature of the employment-related misconduct;
(3) the agency's summary of the allegations of misconduct;
(4) findings of fact and conclusions of law; and
(5) the disciplinary action taken by the agency.

After the opinion was issued, the HHSC asked the OIP to reconsider its determination that the employee disciplinary information be publicly disclosed. While the HHSC failed to previously raise the objection to disclosure, it has since stated that the requested information is excepted from disclosure under section 92F-13(4), HRS, as government records which, pursuant to state or federal law, are protected from disclosure.

Thus, the analysis in the opinion remains accurate, as far as an objection to disclosure based upon an employee's privacy interest is concerned. However, because an agency cannot waive the application of a law, the OIP is now reviewing whether the information is excepted from disclosure under section 92F-13(4), HRS.
[OIP Op. Ltr. No. 99-1, Jan. 26, 1999]