U Memo 20-5

Posted on Jan 9, 2020 in Informal Opinions - UIPA Opinions

U Memo 20-5
January 9, 2020
Names of Individuals Sent to Kalaupapa

The Department of Health (DOH) asked OIP whether the Omnibus Public Land Management Act of 2009, Public Law 111-11 (2009)  (PL 111-11) makes the names of individuals sent to Kalaupapa public by law and thus partially overturns OIP Opinion Number 03-19 (Opinion 03-19).  Among other things, Opinion 03-19 had concluded that depending on which agency maintained the names, the names of individuals sent to Kalaupapa fell within the UIPA’s exceptions for records whose disclosure would be a clearly unwarranted invasion of personal privacy and for records protected by state or federal law, sections 92F-13(1) and (4), HRS.  DOH also asked whether, if the names are public information, each individual’s date of admission to Kalaupapa, gender, and age at admission would also be considered public information.

Since OIP issued its Opinion Letter Number 03-19, the law had changed with the passage of PL 111-11, and an amendment to the definition of protected health information under 45 C.F.R. Parts 160 and 164, which are the medical privacy rules promulgated under the Administrative Simplification subtitle of the Health Insurance Portability and Accountability Act of 1996, Public Law 104‑191 (HIPAA) (HIPAA rules).  Based on these changes to the law, OIP reconsidered its conclusions in Opinion 03-19 with respect to the disclosure of the names of individuals sent to Kalaupapa through 1969.

After reconsideration, OIP concluded that the names and other information regarding individuals sent to Kalaupapa must be disclosed under the UIPA.  Disclosure of the names is now required by federal law and is therefore both authorized by the HIPAA rules and required by the UIPA.  See PL 111-11, C.F.R. § 164.512(a) (2016), and HRS § 92F‑12(b)(2) (2012).   Disclosure of the other information – date of birth, age at admission, and gender – is required under the UIPA because in this specific instance, the individuals’ significant privacy interest in that information does not outweigh the public interest in its disclosure.  See HRS §§ 13(1), -14 (2012).