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Certifigate: HI DoH: Second Threat of Litigation Surfaces

Following up on two other postings regarding Hawaiian Department of Health Director Dr. Chiyome Fukino’s public statements on Mr. Obama’s vital records, fellow blogger John Charlton at The Post & Email posts regarding another currently anonymous concerned citizen is very specifically threatening litigation against the DoH for failing to comply with what they believe to be State law allowing for Dr. Fukino’s public comments to be publicly analyzed:

Now The Post & Email can confirm that Okubo has refused another request, that she received today from another citizen, as per the email forwarded to us in the CC line of the correspondence issued by the citizen.

That request read as follows (personal information redacted):

—–Original Message—–
From: xxx
Sent: Thursday, September 24, 2009 5:41 AM
To: Okubo, Janice S.
Subject: Dear Dr. Janice Okubo
Dear Dr. Janice Okubo,
I am writing you in your capacity as Communications Director of the Department of Health of the State of Hawaii.
In virtue of Section 338-18 (d) of the Hawaiian Revised Statutes, which reads:
(d)  Index data consisting of name and sex of the registrant, type of vital event, and such other data as the director may authorize shall be made available to the public.
I am requesting the index data (excluding the Social Security number, if it is contained therein) regarding the original vital records, cited in Director Fukino’s press release of July 27, 2009, which reads:
“I, Dr. Chiyome Fukino, Director of the Hawaii State Department of Health, have seen the original vital records maintained on file by the Hawai’i State Department of Health verifying Barack Hussein Obama was born in Hawai’i and is a natural-born American citizen. I have nothing further to add to this statement or my original statement issued in October 2008 over eight months ago.”
I would point out that according to the Office of Information Practices Opinion Letter No. 90-07 (Official citation is OIP Op. Ltr.No. 90-7.), all records required by statute to be made available in 92F-12 under the UIPA are not subject to privacy exceptions.
Hence, in accord with 92F-12(15), which lists the following as information which must be made public:
(15) Information collected and maintained for the purpose of making information available to the general public;
I hereby also request all such information collected and maintained for the purpose of making the 2 public announcements made by Director Fukino in this regard (cited above and on Oct 31, 2009, in regard to Barack Obama’s “birth certificate.”)
Please note, that in accord with Hawaiian laws and the UIPA rules, you are obliged to make known this information, upon public request, for the following reasons:
Please take note of the the Hawaiian OIP’s Opinion Letter 07-07 (written on April 18, 2007), which states:
“OIP further notes that, pursuant to statute, DOH itself discloses certain information in the vital records it maintains, and, therefore, individuals would not have a significant privacy interest in that information.  Specifically, the statute provides that ‘[i]ndex data consisting of name and sex of registrant, type of vital event and other such information as the director may authorize shall be made available to the public.’  Haw. Rev. Stat. 338-18 (Supp. 2006).  According to its director, DOH creates a daily list of the vital statistics records it receives and the public may inspect.  The daily list consists of the name and sex of the registrant and the type of vital event.
Accordingly, OIP believes that DLNR should, upon request, disclose a copy of an individual’s vital record maintained by DLNR, but may redact out all information except…information of the type discussed by DOH.”
Therefore in accord with this opinion, I request you to disclose to me a copy of the Barack Obama’s original vital records, redacted as to that information which cannot be released according to the said opinion, just cited, on the grounds OIP Opinion Letter 07-07 clearly indicates that once information contained in a vital record is released by the DOH, the person no longer has a privacy interest in the exposed information.  And therefore, the relevant original vital records should be made public in redacted form when disclosure of the relevant information is mandatory according to statute -in this case more than one, specifically the UIPA at 92F-12(15) and Haw. Rev. Stat. 338-18(d).
Please note that the above cited statutes place no restriction as to whom may ask for the above cited information, when made for the above cited reasons, and that therefore I do not have to meet
any criterion for such a release, as being a person of interest.
Please send the above requested information and documents by surface mail to:
[Address redacted]
If you wish further correspondence with me, please contact me by email, or surface mail. Thank you.
Sincerely,
[Name withheld for privacy reasons]
In reply to this reasonable request, the citizen received this letter from Janice Okubo:
Subject: RE: Dear Dr. Janice Okubo
Date: Thu, 24 Sep 2009 09:09:29 -1000
X-MS-Has-Attach: yes
X-MS-TNEF-Correlator:
Thread-Topic: Dear Dr. Janice Okubo
Thread-Index: Aco9LwEBdvqZvY6wQAmINB4Ua3X91gAGRdkg
From: “Okubo, Janice S.” <janice.okubo@doh.hawaii.gov>
To: XXXX
X-Antivirus: AVG for E-mail 8.5.409Aloha Mr. XXXX,

State law prohibits the Department of Health from disclosing any information about a Hawaii vital record unless the requestor has a direct and tangible interest in the record. This includes verification of vital records and all the information contained in a record.  Direct and tangible interest is determined by HRS §338-18(b) which can be found at: http://www.capitol.hawaii.gov/hrscurrent/Vol06_Ch0321-0344/HRS0338/HRS_0338-0018.htm
Agencies are not required by the UIPA to disclose government records which, pursuant to state or federal law are protected from disclosure.  Haw. Rev. Stat. §92F-13 (4) (Supp.1989)
For information on the law that governs vital records in the State of Hawaii, please refer to HRS §338 at http://www.capitol.hawaii.gov/hrscurrent/
Past statements by the health director are at www.hawaii.gov/health under “news releases.”
This concludes our responses to your questions, no further response will be provided.
Janice Okubo
Communications Office
Hawaii State Department of Health
1250 Punchbowl Street
Honolulu, Hawaii 96813
Phone: (808) 586-4442
Fax: (808) 586-4444
email: janice.okubo@doh.hawaii.gov
[emphases mine]

According to attorney Leo Donofrio, Dr. Okubo’s response was not entirely forthcoming:

Okubo cites 338-18(b) while completely ignoring 338-18(d), which states:

(d)  Index data consisting of name and sex of the registrant, type of vital event, and such other data as the director may authorize shall be made available to the public.

Index data is information.  And as I pointed out in yesterday’s report, various OIP Opinion Letters state that this information must be made available to the public, no exceptions apply.

Yet, Okubo’s response tells the citizen that “State law prohibits the Department of Health from disclosing any information about a Hawaii vital record…”

That’s a direct lie.

Okubo’s continuing pattern of misdirecting citizens from appropriate statute sections is reprehensible.

It states in the UIPA Manual at page 10:

The UIPA requires agencies to disclose all “government records.” This term is defined broadly to include any information maintained by an agency that is recorded in any physical form.

So, when Okubo is asked for “index data” pertaining to vital records under 338-18(d), and she responds that state law prohibits the release of  “any information” pertaining to vital records, please understand that she is lying in direct opposition to the UIPA as well as Haw. Rev. Stat. 338-18(d).

Do not despair.  Okubo is employed by the DoH, but the Office of Information Practices (OIP) is a separate office which exists to police and advise the actions of other state of Hawaii agencies in their compliance with the UIPA.

Part 2 of the TerriK Investigation will document official responses to TerriK by OIP staff attorneys which appear to indicate that an ideological struggle – between the DoH and the OIP – may be in play behind the scenes in Hawaii.  (I will publish on this issue no later than tomorrow, September 26, 2009.)

I believe the OIP understands that the UIPA laws are being purposely frustrated by the DoH.   And the continuing misdirection by the DoH reflects poorly on the OIP who is being made to look like a rubber stamp for the DoH.

While the OIP has certainly been more helpful to TerriK than the DoH, the OIP has also granted the DoH far too much deference.  One can only imagine the immense pressure involved.  Regardless, the OIP is supposed to advise agencies on their public duty to release information when the law demands such information be released.

Haw. Rev. Stat. 338-18(d) is a law which demands information be released.

Okubo has not only failed to release the index data, she’s told various citizens that state law prohibits the release of “any information” regarding vital records to the general public.

The OIP must address this continuing wrongful statement.  They are the authority charged with official review of Okubo’s activities with regard to the UIPA.  Although the OIP has been much more forthright than the DoH, the OIP is now called upon to exercise its statutory purpose under the UIPA manual, which states at page 7:

The Hawaii State Legislature enacted the Uniform Information Practices Act (Modified) (the “UIPA”) based upon this premise that a democracy vests the people with the ultimate decision making power and government exists only to aid the people in the exercise of that power. [emphases original]

Mr. Charlton continues his posting with the pièce de résistance follow-up email:

In reply the citizen sent the following email to Okubo, CCing it to all the other officials in the Directors office, and Bcc-ing it to several attorneys throughout the nation, using the Amnesty International practice of letting the light shine on elected officials to stir them to compliance:
Date: Fri, 25 Sep 2009 00:20:38 +0200
To: “Okubo, Janice S.” <janice.okubo@doh.hawaii.gov>
From: XXX
Subject: RE: Dear Dr. Janice Okubo
Cc: francine.wai@doh.hawaii.gov,noemi.pendleton@doh.hawaii.gov,
katherine.kealoha@doh.hawaii.gov,ronald.terry@doh.hawaii.gov,
“The Post &Email” <mr.john_charlton@yahoo.com>
In-Reply-To: <E3007BE9637A884E9E8A24CDA20DB910058E5385@mail.kh.doh.hawai
i.gov>
References: <E3007BE9637A884E9E8A24CDA20DB910058E5385@mail.kh.doh.hawaii.gov>
Dear Dr. Janice Okubo,Thank you for your letter regarding my UIPA request.

I have quoted the pertinent statutes and opinions  of the OIP office regarding my request (see below), that authorize and require you to release the kind of information I requested, on account of the public statements made by Director Fukino.

In opposition to my request you have cited Haw. Rev. Stat. §92F-13 (4) (Supp.1989) and HRS §338-18(b).

But my request is made in regard to Haw. Rev. Statute §92F-12(15), and Haw. Rev. Stat. 338-18(d).  Please note that I am citing subsections 12(15) and 18(d), not 13(4) and 18(b).  Nor am I asking for the unredacted vital record.  I have also cited the OIP office opinions which authorize and allow and require you to comply with my request as regards the open government laws of Hawaii.

I am not making the kind of request that would be excluded by the sections you cite, because I am making a different kind of request; which you must comply with on the grounds of the public statements made, and the UIPA guidelines which require an open government and free access to the information used to prepare public statements, which statements being public have waived the right to privacy of the information used to make them.

Failure to comply with this request, as the UIPA guidelines require you to, would be in direct violation of Hawaii statutes and UIPA guidelines, making you and Director Fukino subject to prosecution. Are you really willing to do that?  And yes, I will file a criminal complaint against you to the State Attorney General on this basis, and another to the Federal AG in your district for denying me my civil rights, if you fail to comply with this lawful request.

A copy of our correspondence is quoted below, containing this request, which I herein renew.

I am CCing this to all the other officials in your office, for legal copy; and Bcc-ing it to a number of attorneys so that this correspondence can be duly verified in court, if need be.

Sincerely,

[Name redacted  — re-citation of the copy of request omitted]

It is clear from this correspondence that the concerned citizen availed himself of arguments provided by Attorney Leo Donofrio regarding this issue. [emphasis mine]

Let’s remember to keep the main thing the main thing, to wit:

This story is not about retrieving Mr. Obama’s original birth certificate. Rather, it is about retrieving from the great State of Hawaii the publicly-accessible documentation that was made public by virtue of Dr. Fukino having proclaimed her statement that Mr. Obama is a natural born citizen.

Again: If Dr. Fukino can make such public statements, then that must necessarily and clearly mean that there is public information available by the Department that is not covered by privacy laws of any sort. Remember: the Department cannot release certain types of information without running afoul of privacy laws, as Mr. Donofrio and the “opposition” site NativeBornCitizen.Wordpress.com have already clearly outlined.

As a footnote to this story, Mr. Charlton also reveals the fact that Dr. Fukino and Mr. Obama may have been quite friendly in their potentially reciprocating work to get Native American recognition for ethnic Hawaiians (Sen. John McCain (R-AZ) did not support this cause). So, while the opposition likes to point out that Hawaii has a Republican Governor (as if this plays any part in the illegitimacy of questions regarding Mr. Obama’s eligibility), it appears that there is at least anecdotal evidence to suggest that ties really are close between Mr. Obama and the DoH Director.

See the following links regarding the eligibility saga:

-Phil

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13 Comments


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