Obama Citizenship

Certifigate: How Did HI Determine that Mr. Obama is ?Natural Born??

By Phil

Longtime readers will remember when I reported on how Hawaii Department of Health Director Dr. Chiyome Fukino made the claim that Mr. Obama is a natural born citizen. As the link to the post shows, a flurry of comments then ensued from both sides about how “this was it” — what more did the so-called “birthers” need to know? The dear Director made the proclamation; what else is needed?

As I posed in the previous postings, I asked a number of questions regarding the authority by which Dr. Fukino could make those claims. After all, while she is vested with the authority of overseeing the great State of Hawaii’s vital documentation, nobody has been able to point to a specific law that says that any State’s or Commonwealth’s Director of Health’s (or similar Department’s) proclamation is what is required to help any other authority, including the People at large, make an exclusive determination as to the eligibility of anyone for the presidency.

What’s more, we still do not know upon what basis the Director made her claim. Did she actually see Mr. Obama’s birth certificate? Was she actually allowed to? If so, by what authority? Surely she didn’t simply act on her own, as that would constitute an arbitrary breach of privacy over a private individual’s documentation. Did someone ask her to do so? If so, who? After all, the FactCheck.org blog would lead us to believe that the Obama campaign had some unnamed individual make a request for the alleged document they show in image format that proclaims itself to be Mr. Obama’s short-form certification of live birth.

But wait a minute — “someone” from the Obama campaign did this? By what authority? Does the HI DoH merely take an oral promise from an arbitrary individual that another arbitrary individual, namely Mr. Obama, is allowing access by someone else? Where’s a copy of the receipt for the cost of the transaction to procure the COLB?

It now gets even better. In the interest of total government transparency, attorney Leo Donofrio — working pro bono to help a fellow concerned citizen and activist by the online name of “TerriK” — has found a way to pursue this matter from a different perspective. They are going to ask the Department of Health a very key question:

Upon what basis — upon what documentation — did the Director of Health make the determination that Mr. Obama is a natural born citizen?

What’s more, according to his article, it appears that it is well within a citizen’s right to ask about such a proclamation:

I will be assisting one of my readers in filing litigation in Hawaii state circuit court pursuant to her ongoing request for public information denied by Hawaii officials.  (Readers of my blog will recognize her as MissTickly aka TerriK.)

Correspondence sent to TerriK by Hawaii officials indicates that President Obama?s vital records have been amended and official records pertaining thereto are maintained by the state of Hawaii.

I will issue a full statement and press release on behalf of TerriK via this blog in the days ahead.  This statement will include a complete history of correspondence between TerriK and Hawaii state officials in the Office of Information Practices (OIP) and the Department of Health (DoH).

Any legal assistance provided by me to TerriK will be pro bono.  I will seek to be admitted pro hac vice in Hawaii for purposes of filing the case and conducting the trial.  If such admission is not forthcoming, other counsel may be retained or TerriK may represent herself pro se.  In any case, I will be drafting the pleadings.  The only issue will be related to who files them and conducts the trial de novo.

While correspondence sent to TerriK confirms that President Obama?s vital records have been amended, the DoH has refused to make the documents requested available.  One count of the litigation will attempt to have those documents released.  The other counts concern various information denied to her which ? according to  Hawaii law ? she is entitled to.

Before I get to the facts of the ongoing investigation in my follow up report, I will ask readers to study the UIPA manual and the UIPA statute.

Hawaii has been caught blatantly circumventing their own laws; laws specifically created to foster open government practices.

STANDING

TerriK has standing to pursue this action under the statute.  The UIPA manual states:

?Any person? may make a request for government records under part II, the Freedom of Information section of the UIPA.  ?Person? is defined broadly to include an individual, government agencies, partnerships and any other legal entities.

Under part II, a government agency generally may not limit access to public records based on who the requester is or the proposed use of the record.

ISSUES

Section 92F-12(15) states that the following must be released to the public:

(15) Information collected and maintained for the purpose of making information available to the general public;

On July 27, 2009 Hawaii Department of Health Director Fukino issued a press release which stated:

?I, Dr. Chiyome Fukino, Director of the Hawai?i 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.?

TerriK requested all information ?collected and maintained? for the purposes of preparing the public statement made by Director Fukino as such information must be released according to the statute.

TerriK was interested in knowing how Director Fukino came to the conclusion that the President was a natural born citizen.  She was familiar with Section 92F-12(15) which demands that all information collected and maintained for the purposes of making such a public statement be made public.  She was denied that information despite the clear wording in the statute.  Furthermore, the case law from Hawaii clearly demands production of the records TerriK requested.

I will provide legal research and relevant examples of official correspondence in my follow up report and press release at this blog.  TerriK has previously provided details of her investigation and correspondence with the state of Hawaii in comments to this and other blogs.  She has also authorized me to speak publicly about her case and to provide the public with all relevant correspondence.

Furthermore, Hawaii officials -  upon denying TerriK access to information requested ? were required by statute to inform her of a right to appeal by trial de novo in Hawaii circuit court.  They failed to provide such guidance to her.  Section 92F-15.5(b) states:

(b)? If the denial of access is upheld, in whole or in part, the office of information practices shall, in writing, notify the person of the decision, the reasons for the decision, and the right to bring a judicial action under section 92F-15(a). [L 1989, c 192, §1]

The OIP failed to notify TerriK of her right to a judicial appeal.  Instead, the OIP simply told her that the decision to deny access was correct and that they could not help her any further.

We will bring this litigation according to the following statute provision:

§92F-15 Judicial enforcement.

(a) A person aggrieved by a denial of access to a government record may bring an action against the agency at any time within two years after the agency denial to compel disclosure.

(b) In an action to compel disclosure the circuit court shall hear the matter de novo. Opinions and rulings of the office of information practices shall be admissible. The circuit court may examine the government record at issue, in camera, to assist in determining whether it, or any part of it, may be withheld.

(c) The agency has the burden of proof to establish justification for nondisclosure.

Please take note of subsection (c) above.  The burden of proof is on the agency to establish justification for nondisclosure.

With respect to information collected by Director Fukino for purposes of making her July 27, 2009 press release (and other public statements), the burden cannot be overcome since the statute demands that such information be made public.

Again, as WorldNetDaily points out, this particular question isn’t about specifically requesting copies of Mr. Obama’s birth certificate or what not; it’s about finding out how Dr. Fukino made very clearly public comments concerning his citizenship. After all, if she can make such a determination, then such a documented basis is not a private matter:

On his blog, Donofrio explained that one of his contacts, identified as “TerriK,” had asked for all of the state information “collected and maintained” for the purposes of preparing Fukino’s public statements.

Under state law, he said, “such information must be released.”

“TerriK was interested in knowing how Director Fukino came to the conclusion that the president was a natural born citizen. She was familiar with Section 92F-12(15) which demands that all information collected and maintained for the purposes of making such a public statement be made public. She was denied that information despite the clear wording in the statute. Furthermore, the case law from Hawaii clearly demands production of the records TerriK requested,” he said.

Donofrio said work is under way to press the demand.

“I will provide legal research and relevant examples of official correspondence in my follow up report and press release at this blog. TerriK has previously provided details of her investigation and correspondence with the state of Hawaii in comments to this and other blogs. She has also authorized me to speak publicly about her case and to provide the public with all relevant correspondence,” he said.

Under the state’s law addressing records. exceptions are made for government records that would “constitute a clearly unwarranted invasion of personal privacy.” Also exempted are various records regarding prosecutions and certain court papers.

But it explains that disclosure “shall not constitute a clearly unwarranted invasion of personal private if the public interest in disclosure outweighs the privacy interests of the individual.”

Department spokesman Janice Okubo told WND the laws have been interpreted to leave birth documentation exempted from public disclosure.

But she admitted the law allows a challenge to such decisions in the courts.

In fact, the law states, “A person aggrieved by a denial of access to a government record may bring an action against the agency at any time within two years after the agency denial to compel disclosure. ? The circuit court may examine the government record at issue, in camera, to assist in determining whether it, or any part of it, may be withheld.”

What I find interesting about all of this is that “opposition” sites like NativeBornCitizen report that while it is pretty clear that the public does not necessarily have the right to openly inspect an individual’s birth certificate, they do not address the fact that “TerriK” is not barred from asking the Director exactly how the Director made the public statements that she (the Director) did:

In a followup, the same person asked for Hawaii to release the relevant records under its open records law (UIPA). Pointing to HRS §92F-12) (15) ?Information collected for the purpose of making information available to the public?? (With no exceptions noted ). Perhaps TerriK does not understand that the long form birth certificate was not collected for the purpose of making the information available to the public, on the contrary, other than for statistical purposes, the  data was not collected for the purpose of making the information public.

The Hawaiian Open Records Law clearly is not meant for these purposes, and clearly explains that any and all records of the Government will be public unless laws or statutes prohibit this.

The same site performed an excellent job of reporting on the email exchange that “TerriK” had with the HI DoH (read from the bottom of the following quote up to get the context of the email thread):

From: ?Okubo, Janice S.? <janice.okubo@doh.hawaii.gov>
Date: July 27, 2009 11:45:54 PM EDT
To: XXX
Subject: RE: Your help is appreciated.

Attached is the statement issued today by the Hawaii State Director of
Health.  The director has never used the term ?AMMENDED? in any of her
issued statements regarding this issue.

??Original Message??
From: XXX
Sent: Monday, July 27, 2009 3:00 PM
To: Okubo, Janice S.
Subject: Re: Your help is appreciated.

Ms. Okubo,

Aloha! Thank you so much for replying quickly. And, thank you for the
?infamous? press release?it is a document I refer to every so often
and having my very own is much appreciated. I?ll consider this
document my brush with fame AND infamy! Frankly, I wonder what you
must think of the ?Birther? inquiries and would like to state upfront,
that I completely respect Hawaii?s Privacy laws. I ask that you answer
the following, if privacy laws allow:

?Is the Director of Health for the State of Hawai?i, along with the
Registrar of Vital Statistics who has statutory authority to oversee
and maintain these type of vital records, able to state they have
verified that the Hawai?i State Department of Health has President
Barack Obama?s AMENDED original birth certificate on record in
accordance with state policies and procedures.?

I fear my carefully chosen wording appears like an effort to ?pull a
fast one??however, I modeled it on the following statement you were
able to make publicly on your press release last year :

?Therefore, I as Director of Health for the State of Hawai?i, along
with the Registrar of Vital Statistics who has statutory authority to
oversee and maintain these type of vital records, have personally seen
and verified that the Hawai?i State Department of Health has Sen.
Obama?s original birth certificate on record in accordance with state
policies and procedures. ?

I hope this is reasonable to ask. If not, can you point me to the
applicable statute?

Many thanks for your attention to this matter.

XXX

On Jul 27, 2009, at 5:45 PM, Okubo, Janice S. wrote:

Aloha XXX,

Attached is the statement issued by the state last year in the Fall.

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

??Original Message??
From: XXX
Sent: Monday, July 27, 2009 1:20 AM
To: Okubo, Janice S.
Subject: Your help is appreciated.

Dear Ms. Okubo,

Can the State of Hawaii verify that they have the Amended (Original)
birth record for President Barack Obama on file in accordance with
state policies, whether digital, paper or otherwise?

Thank you and I apologize for your trouble in asking?I can?t imagine
how this issue must be overwhelming you. You have been extremely
patient and professional from what I can discern. But, I feel the best
thing for me, is just to ask you guys myself.

Thank you again,
XXX

Of course, the Department of Health is not going to reveal anything more than they already have, which is actually good news for “TerriK” and Mr. Donofrio; the DoH isn’t going to explicitly release such documentation to the public, nor are they going to try to restate what they’ve already gone on the record to say. It is furthermore noteworthy that it is possible for a Court to make a decision on this issue as there are laws that could potentially make such disclosure available — and where laws exist, the Judiciary can be tasked to help interpret them.

Nevertheless, as Trinity would say to Neo in The Matrix:

“It’s the question that drives us, Neo…”

“What is the matrix?”

In this case, the question is:

Upon what basis did you determine that you could issue a proclamation that Mr. Obama is a natural born citizen, from your perspective?

See the following links regarding the eligibility saga:

• The background:
  • Obama?s Presidential Eligibility: What You Need to Know
  • Obama’s Sealed Background Documentation
  • Obama Citizenship Facts
  • What’s the Difference Between a Birth Certification Versus a Birth Certificate
• The questions:
  • Leo Donofrio Affirms FightTheSmears.com?s Obama Citizenship Admission
  • Fallible FactCheck.org: TheBirthers, Donofrio Cause Change on Obama Citizenship
  • Newsmax.com: Obama Birth Certificate Not Released
  • Keyes v. Lingle: Forensic Examiner and IT Expert Disprove Certification of Live Birth
  • The State Department and Sen. Patrick Leahy’s (D-VT) Natural Born Citizen Resolution (April 10, 2008)
  • Citizen Grand Jury Updates and Eligibility Lawsuit Listing

-Phil

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Full post as published by The Right Side of Life on September 23, 2009 (boomark / email).