TerriK INVESTIGATION, Part 3: Hawaii AG Mark Bennett Approved Fukino’s Natural-Born Citizen Statement; All Records Should Be Made Public According To Law.

Hawaii Department of Health Director Chiyome Fukino’s press release of July 27, 2009 was a public statement.  The UIPA (Hawaii open records law) at 92F-12(a)(15) states:

§92F-12 Disclosure required. (a) Any other provision in this chapter to the contrary notwithstanding, each agency shall make available for public inspection and duplication during regular business hours:

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

Fukino’s July 27th press release 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.”

There were two very important pieces of information made available to the public in the above statement:

-  “…Obama was born in Hawaii…”

-  “…Obama…is a natural-born American citizen…”

It cannot be disputed that this information was made available to the public.  Therefore, under 92F-12(a)(15), all “Information collected and maintained for the purpose of making” the July 27th statement available to the public must be disclosed.

TerriK locked onto 92F-12(a)(15) and applied it to the July 27th press release by requesting all relevant records thereto.  It was a very intelligent and savvy analysis, especially for a lay person.  I tend to believe the application of this provision was overlooked by Hawaii officials and this will be the game changer leading to full disclosure.

Everything specifically listed in section 92F-12 is required by law to be made public.  There is no discretion involved.  Furthermore, no other provision of the UIPA may work as an exception to the mandatory disclosure mandated by 92F-12.  Therefore, none of the exceptions listed in 92F-13 to the UIPA’s general rule of disclosure are applicable.

The only exceptions to mandatory disclosure of records listed in 92F-12(a)(15) are confidentiality laws listed in other chapters of the Hawaii Revised Statutes.  This would specifically include Haw. Rev.Stat. 338-18 which makes vital records maintained by the DoH confidential.

As to Fukino’s July 27th press release, 92F-12(a)(15) and 338-18 may be in conflict as to disclosure of Obama’s vital records.  The resolution of this potential conflict will be the subject matter of Part 4 of this report where we will comprehensively analyze whether vital records viewed by Fukino in making her July 27th statement must be disclosed.

I will tell you in advance that when such a conflict exists, the law requires that authorities give effect to both provisions where possible as “repeal by implication is disfavored”.  OIP OP. Ltr. No. 00-02 citing Mahiai c. Suwa 69 Haw. 349, 356-57 (1987).  My conclusion stated in advance of Part 4 is that those vital records must be disclosed.

That being said, this section of the report will be limited to issue of which records must be disclosed by the DoH, the Hawaii Attorney General, and any other official – state or federal – pertaining to the definition of the term “natural-born American citizen” as used by Fukino in her July 27th, 2009 press release.

NEW UIPA REQUESTS

Unfortunately, TerriK’s requests for records on this issue were very broad.  This doesn’t mean they shouldn’t have yielded some disclosure.  But the DoH seized on the broadness and issued a very confusing response which did not exactly conform to the OIP administrative rules.

Therefore, I have begun the process of making very specific UIPA requests on my own behalf for the records discussed.  Other researchers I am in touch with are doing the same.  Below is comprehensive legal analysis which strongly indicates full disclosure must be provided.

HAWAII ATTORNEY GENERAL MARK BENNETT APPROVED FUKINO’S JULY 27th PRESS RELEASE.

Justin Riggs sent the following email to DoH Communications Director Janice Okubo on July 29, 2009:

From: Justin Riggs [email address redacted]
Date: Wed, Jul 29, 2009 at 12:03 PM
To: …janice.okubo@doh.hawaii.gov, [redacted other recipient]

…Ms. Okubo,

I am currently a masters degree candidate at …

The reason that I am contacting your organizations is that you are, as far as I can tell from my research, the only two groups that have openly stated that President Obama is a natural born citizen (one of the Article II, Section I qualifications for being President). I would like to document how you came to that conclusion: i.e. what the criteria is for your organization, what evidence the candidate provides, etc.

I thank you for your time, and look forward to receiving a response in the near future.

Sincerely,

Justin W. Riggs

Janice Okubo responded later that day:

From: Okubo, Janice S.. <janice.okubo@doh.hawaii.gov>
Date: Wed, Jul 29, 2009 at 12:20 PM
To: Justin Riggs [email address redacted]…

Aloha Justin,

The statement was reviewed and approved by our Attorney General Mark Bennett.  I am unable to provide further comment.

Janice Okubo
Communications Office
Hawaii State Department of Health…

So, we know that Hawaii Attorney General Mark Bennet “reviewed and approved” Fukino’s July 27th press release.  Bennet may have prepared the entire press release or perhaps just the “natural-born” part.  We don’t know.  Okubo states that she is unable to provide further comment, so the rest is a mystery at this point.  But we certainly have another public statement here which makes information available to the public.

The public is therefore entitled to all records maintained by Hawaii officials which pertain to this July 29th statement by Okubo.  For example, any emails between Okubo and AG Bennett, between Okubo and Fukino, between Bennett and Fukino, Governor Lingle, etc. which guided Okubo’s statement to Justin Riggs must be disclosed along with memos, letters, transcripts, video and telephonic conference recordings and any other records maintained thereto.

The same goes for any records maintained documenting dialogue between Hawaii officials and federal officials as to this issue.

But more important is that all of the above records pertaining to Fukino’s July 27th press release must also be disclosed.

WHAT DEFINITION OF “NATURAL-BORN” CITIZEN DID FUKINO RELY UPON?

The statement, “…Obama…is a natural-born American citizen…”, contains both a factual determination as well as a legal definition. In order to decipher the factual determination made public by that conclusion, we must first know the legal definition of “natural-born America citizen” that Fukino determined Obama conformed to.

Without that legal definition, we can’t analyze the factual determination.

For example, if she used a definition which alleges anyone born on US soil is therefore a natural-born citizen, then the factual determination for this statement might only be concerned with records she viewed which led her to believe Obama was born in the US.

If, on the other hand, she used a definition which required that Obama was born in the US to parents who were citizens, then the factual determination involved with the “natural-born” part of her statement would have taken into account records she viewed which stated who his parents were.

Hawaii Attorney General Mark Bennett reviewed and approved the July 27th press release so we should assume that an Attorney General opinion letter exists.  I personally issued a UIPA request for this letter to DoH Director Fukino on Sept. 28, 2009.

While the following analysis centers on disclosure of Attorney General opinions letters, it equally applies to all other government records kept by any state official or body covered by the UIPA – ie, emails, memos, photographs, minutes, etc. – which pertain to the July 27th press release.

ATTORNEY GENERAL OPINION LETTERS CANNOT BE A SWORD AND A SHIELD.

Haw. Rev. Stat. 28-3 imposes an affirmative duty upon the Attorney General to document and make public all opinions he gives upon a question of law submitted by the head of an agency:

§28-3  Gives opinions. The attorney general shall, when requested, give opinions upon questions of law submitted by the governor, the legislature, or its members, or the head of any department.  The attorney general shall file a copy of each opinion with the lieutenant governor, the public archives, the supreme court library, and the legislative reference bureau within three days of the date it is issued.  Opinions on file with the lieutenant governor, the public archives, and the supreme court library shall be available for public inspection.

The word “shall” signifies an affirmative duty to document the opinion as well as make it public.  This means that even if no Attorney General opinion letter currently exists, since a question of law was submitted to AG Bennet by the head of a state agency – DoH Director Fukino – the opinion received by her must be put in letter form and made available to the public.

If necessary, this may be accomplished via a writ of mandamus.  However, I do believe such an opinion letter already exists along with accompanying emails and other records kept thereto.  It would be highly suspicious for the DoH Director and the Attorney General to claim that no records whatsoever exist concerning Bennet’s review and approval of the July 27th press release.

THE ATTORNEY GENERAL LETTER MUST BE DISCLOSED.

In a case before the Circuit Court of the Second Circuit (State of Hawaii) – Akaku v. Bennett – involving current Attorney General Mark Bennett, the head of a state agency sought to keep an opinion letter prepared by AG Bennett from being disclosed:

Pursuant to HRS § 28-3, the Attorney General’s duty to disclose legal opinions in response to questions of law posed by any head of department is not discretionary.  If the head of any department poses a question of law, the Attorney General’s response must be filed in accordance with HRS § 28-3 absent other considerations set out in HRS §§ 92F-13 and 14. [FN] 3.

Footnote 3 from that opinion states:

§ 28-3 provides that the “attorney general shall file a copy of each opinion.., within three days of the date it is issued” (emphasis added). Generally, the legislature uses the word “shall” to Indicate its intention to make the provision mandatory and not discretionary. State v. Shannon, 118 Haw. 15, 25 (2008).

NO ATTORNEY CLIENT PRIVILEGE APPLIES.

The court went on to discuss that once the existence of the opinion letter and the conclusion of the letter are made public, no attorney client privilege applies:

Under the Hawaii Rules of Evidence (“HRE”), Rule 511, “[a] person upon whom these rules confer a privilege against disclosure waives the privilege if, while holder of the privilege, the person or the person’s predecessor voluntarily discloses or consents to disclosure of any significant part of the privileged matter. “… Commentary to HRE, Rule 511 further provides that “[a]ny intentional disclosure by the holder of the privilege defeats [the purpose of HRE 503] and eliminates the necessity for the privilege in that instance…

[I]t has been widely held that voluntary disclosure of the content of a privileged attorney communication constitutes waiver of the privilege as to all other such communications on the same subject.

This next part is very important since it discusses that a press release was the basis for a waiver of the attorney client privilege:

A sophisticated, well-counseled party who intentionally discloses an important part of an otherwise privileged communication acts in a manner that is thoroughly inconsistent with preserving the confidentiality of that communication.  See Electro Scientific Indus. v. Gen. Scanning, Inc. , 175 F.R.D. 539, 543 (N.D. Cal, 1997) wherein it was held that where a party issues a “news release” disclosing that counsel advised him that the opposing party’s patents were invalid, waiver was effectuated because the party voluntarily disclosed an important and substantive part of what would have been a confidential attorney-client communication.

DoH Director Fukino is an M.D., and she certainly must be considered a “sophisticated, well-counseled party”.  She disclosed an important part of the communication between herself and AG Bennet – the conclusion.  And by virtue of an eloquent metaphor, the court provides illumination upon the policy which demands disclosure once such a conclusion is made public:

Defendant Reifurth disclosed to the public both the purpose for which he contacted the Attorney General– he wanted a legal opinion…and [he] also disclosed the essence of the legal opinion provided by the Attorney General… The disclosure of the legal opinion of the Attorney General amounted to a disclosure of a significant or important part of the attorney-client communication…

Defendant Reifurth has put two important statutory provisions in competition by using the attorney-client privilege as both a sword and a shield. (Emphasis added.)

Therefore, Fukino can’t use the Attorney General’s opinion as a sword to justify an official determination by her office that Obama is a “natural-born American citizen” while at the same time using the attorney client privilege as a shield to prevent public disclosure of AG Bennet’s opinion which is required by HRS 28-3.

As long as Attorney General Bennett’s opinion was recorded in a letter (or email, memo, note etc.), that record must be disclosed under 92F-12(15) as well as 92F-12(b)(2).  The court in Akaku v. Bennett made reference to 92F-12(b)(2) in its holding:

The Uniform Information Practices Act (“UIPA”), directs agencies to disclose “[g]overnment records which, pursuant to federal law or a statute of this State, are expressly authorized to be disclosed to the person requesting access…” HRS § 92F-12(b)(2).

The holding in Akaku v. Bennett also contained the following findings of law:

In this instance, if the Attorney General could avoid publication of his response to a question of law by denominating the opinion as an “advise and counsel” letter, the mandatory disclosure provisions of HRS § 28-3 would be rendered meaningless…

Defendant Reifurth and the DCCA disclosed a significant part of the Attorney General Opinion thereby waiving the attorney-client privilege on communications on the same subject matter.

Since Attorney General opinion letters are expressly authorized to be made public by Haw. Rev. Stat. 28-3, it follows that 92F-12(b)(2) demands disclosure by law.

If Attorney General Bennett is given a question of law by DoH Director Fukino, his opinion in response thereto must be documented and made available to the public.  If he has failed to make a record of this opinion, he will be compelled to do so and any resulting recording must be made available to the public.

NO SECRET LAW

We should also assume that DoH Director Fukino didn’t rely exclusively upon Attorney General Bennett’s opinion.  She may have done her own research and she may have been influenced by other sources including officers of the federal government.  92F-12(a)(15) demands that all information she collected and maintained for purposes of making the July 27th press release be disclosed to the public.  But there is another provision of 92F-12 which provides illumination on this issue, 92F-12(a)(2):

§92F-12 Disclosure required. (a) Any other provision in this chapter to the contrary notwithstanding, each agency shall make available for public inspection and duplication during regular business hours:

(2) Final opinions, including concurring and dissenting opinions, as well as orders made in the adjudication of cases, except to the extent protected by section 92F-13(1);

This is also known as the “law of the agency” which is specifically discussed in various OIP opinion letters and case law as having the purpose of preventing the issuance of “secret law”.

The most instructive analysis of 92F-12(a)(2) is provided by OIP Opinion Letter 90-40 which provides multiple statutory interpretations which are applicable here as well as to Part 4 of this report.  I will quote extensively from this opinion letter:

The UIPA, the State’s new open records law, generally provides that “[a]ll government records are open to inspection and copying unless access is restricted or closed by law.”  Haw. Rev. Stat.  92F-11(a) (Supp. 1989).  In addition to this general rule of agency disclosure, in section 92F-12, Hawaii Revised Statutes, the Legislature enumerated a list of records, or categories of records, which must be made available for inspection as a matter of law.  [FN 3.]

Footnote 3 includes an important provision we’ve seen before in Part 1 of this report:

3 As to the records, or categories or records set forth at section 92F-12, Hawaii Revised Statutes, the legislative history of the UIPA indicates that the Act’s exceptions to public access, “such as for personal privacy and for frustration of legitimate government function are inapplicable.” See S.Conf. Comm. Rep. No. 235, 14th Leg., 1988 Reg. Sess., Haw. S.J.689, 690 (1988); H.R. Conf. Comm. Rep. No. 112-88, 14th Leg., 1988 Reg. Sess., Haw. H.J. 817, 818 (1988). (Emphasis added.)

OIP Opinion Letter 90-40 then goes on to explain that the purpose of 92F-12(a)(2) – aka “the law of the agency” – is to prevent “secret law” from being issued:

Paragraphs (1) and (2) of section 92F-12(a), Hawaii Revised Statutes, were adopted in their entirety from section 2-101 of the Uniform Information Practices Code (“Model Code”) drafted by the National Conference of Commissioners on Uniform State Laws.  The UIPA’s legislative history directs those construing its provisions to consult the Model Code’s commentary, where appropriate, to guide the interpretation of similar UIPA provisions.  See H.R. Stand. Comm. Rep. No. 2580, 14th Leg., 1988 Reg. Sess., Haw. H.J. 969, 972 (1988).  The commentary to section 2-101 of the Model Code states:

Under this section, the “law of the agency” must be made available to the public.  In other words, an agency may not maintain “secret law” relating to its own decisions and policies.  This section is similar in general requirement to Sections (a)(1), (2) and (3) of the federal Freedom of Information Act 5 U.S.C. 552(a)(1), (2) and (3). . . .  The affirmative disclosure responsibility extends to agency policies, rules and adjudicative determinations and procedures. (Emphasis added.)

OIP Opinion Letter 90-40 then goes on to discuss what specific actions taken by an agency fall under the no secret law of the agency provision of 92F-12(a)(2):

Additional guidance in determining the meaning of the term “order” for purposes of the UIPA, may be gleaned from the National Conference of Commissioners on Uniform State Laws’ State Administrative Procedure Act of 1981 (“Model Act”).  Section 1-102(5) of the Model Act defines the term “order” as:

[A]n agency action of particular applicability that determines the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons.

Model Act  1-102(5) (1981). (Emphasis added.)

Please note that an “order” is defined above as “an agency action that determines “the …legal interests of one or more specific persons.”

Applying that definition to Fukino’s July 27th statement, it is clear the press release was an agency action -  issued on DoH letterhead directly from her office and bearing her title of DoH Director- which determined Obama’s “legal interest” concerning his (publicly disputed) eligibility to be President.  The press release did this by stating that Fukino’s review of Obama’s “vital records” determined that he was a “natural-born American citizen”.

By taking official agency notice of Obama’s vital records and issuing an official opinion as to his Presidential eligibility, Fukino’s actions fall under “the law of the agency” pursuant to 92F-12(a)(2).  And by refusing to inform the public concerning how she came to define the term “natural-born American citizen”, she is guilty of making “secret law”.

OIP Opinion Letter 90-40 provides further guidance on this issue:

In our opinion, the definition of the term “order” set forth in the Model Act provides a more practical and workable definition of this term.  This definition clearly describes the action of an agency when acting in a quasi-judicial or adjudicatory capacity, by determining the legal rights, duties, privileges or other legal interests of specific persons.  In our opinion, an agency may act in such a quasi-judicial, or adjudicatory capacity, in contexts other than”contested case” hearings under chapter 91, Hawaii Revised Statutes…

[W]e agree with the decision of the court in Sigler, that like section (a)(2) of the FOIA, by its terms, nothing would support a conclusion that section 92F-12(b)(2), Hawaii Revised Statutes, only applies to “adjudications pursuant to a formal hearing.”  Sigler, 390 F. Supp. at 792.

Accordingly, DoH Director Fukino’s July 27th press release is covered by 92F-12(b)(2).  The only remaining issue is whether the exception listed therein as to 92F-13(1) applies:

§92F-13 Government records; exceptions to general rule. This part shall not require disclosure of:

(1) Government records which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy;

Generally, no exceptions listed in other provisions of the UIPA (Chapter 92F of the Haw. Rev. Stat.) apply to 92F-12.  But as to subsection 92F-12(b)(2), the above exception from 92F-13(1) is explicitly included.  However, please take note that the 92F-13(1) exception does not apply to our analysis of required disclosure under 92F-12(a)(15).

Regardless, as I have limited discussion in this section of the TerriK Investigation report to disclosure issues attached to records pertaining only to the definition of “natural-born American citizen” incorporated by DoH Director Fukino (and approved by Attorney General Mark Bennett) in her July 27th press release, the privacy exception of 92F-13(1) does not apply.

There can be no privacy interest as to the definition of the term “natural-born American citizen”.

The very notion is absurd.

Leo C. Donofrio, Citizen Attorney   http://naturalborncitizen.wordpress.com

October 1, 2009

Copyright 2009 Leo C. Donofrio

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