The Plot Thickens: Obama's Birth Certificate and HRS § 338-18

I have previously requested a copy of Barack Obama's birth certificate. Janice Okubo, Public Information Office of the Communications office of the State of Hawaii, responding on July 3, has chosen to refuse to provide a copy of the birth certificate. This blog consists of three parts. First, I quote Ms. Okubo's letter, dated July 3, 2008, verbatim. Her letter responds to my inquiry under the Freedom of Information Act. Although Ms. Okubo points out that the Freedom of Information applies to the federal government and not the states, most states, including Hawaii, have similar statutes. With respect to birth certificates, though, there is a separate section of the Hawaii Revised Statutes (HRS) that Ms. Okubo cites, HRS § 338-18. The link that Ms. Okubo provides in her hard copy snail mail letter respecting § 338-18 was dead when I tried to use it, but I obtained a copy of HRS § 338-18 from the Lexis-Nexis data base available from New York University's Bobst library. In addition, I obtained information on Hawaii's Uniform Information Practices Act from the State of Hawaii Website. In the second part of this blog, I respond to Ms. Okubo by drafting two letters, one a response to Chiyome Fukino, Director of Health, Ms. Okubo's superior, with a copy to Ms. Okubo and Governor Linda Lingle (R-HI), and also a letter to Barack Obama requesting that he send me a letter authorizing me to represent him in obtaining a copy of his birth certificate in the interest of avoiding accusations of political gamesmanship and manipulation. In the third section I copy the relevant sections from § 338-18 of the Hawaii Revised Statutes for your reference. I also quote from the State of Hawaii Website about its "Uniform Information Law" booklet.

It is evident that, Ms. Okubo's letter notwithstanding, § 338-18 DOES NOT PROHIBIT the State of Hawaii from making Mr. Obama's birth certificate public for three reasons. First, because he is a presidential candidate the public has a vital interest in Mr. Obama's birth certificate. The statute specifically permits divulging birth certificate information to anyone who has a vital interest in the information.

Second, the State of Hawaii Department of Health is granted the authority to fashion its own regulations about providing birth certificate information, and given the national importance of Mr. Obama's birth certificate, the question needs to be asked why the Hawaii Health Department has fashioned rules that contradict its own public law § 338-18 and its own Open Records Law.

Third, although the statute includes a list of persons who are entitled to obtain a copy of the birth certificate, it does not anywhere indicate that the list is exhaustive or exclusive. If the drafters of § 338-18 had meant the list to be exhaustive and exclusive they could have said so, but they did not. Therefore, Ms. Okubo misconstrues the law she claims to enforce.

Pamela Geller of Atlas Shrugs has had a forensic expert, Techdude or Adam, review posted birth certificates and he has found that the posted certificate is a forgery because "The security borders do not match. Literally." Previously several prominent conservative bloggers, have questioned the wisdom of pursuing the matter because the Obama campaign's obfuscations might amount to a strategic ploy to encourage media attention that ultimately embarrasses conservatives. When the certificate turns out to be OK the conservatives will have egg on their face. The forensic evidence intensifies the importance of the birth certificate. However, there is a different question involved that is almost as important as a falsified copy of a presidential candidate's birth certificate. The left claims that it is for openness in government. Mr. Obama claims to be for "change". But capriciously refusing to provide information in which the public has a vital interest and so keeping the information secret even though it is of national importance and has been falsified on supporters' Websites contradicts both of these postures.

I. Janice Okubo's Response to My Letter

"July 03, 2008

"Aloha Mitchell Langbert

"Re: FREEDOM OF INFORMATION ACT REQUEST

"This is in response to your letter request dated June 29, 2008. The Freedom of Information Act (FOMA), Title 5 of the United States Code, § 552, generally provides that any person has the right to request access to federal agency records or information. The FOIA Applies only to federal agencies and does not creat a right to access to records held by Congress, the courts, or by the state or local government agencies.

"Hawaii state law (HRS § 338-18) prevents the State of Hawaii from disclosing information contained in vital statistics except to those people who have a direct and tangible interest in the record as defined by statute. For information on requesting verification of birth records go to http://hawaii.gov/health/vital-records/vital-records/index.html.

"Sincerely,

"Janice Okubo
Public Information Officer
Communications Office

"Attachment

"c Communications Office Secretary


II. A. My Response to Ms. Okubo's Letter (to be mailed from New York City on July 14).

PO Box 130
West Shokan, NY 12494

Ms. Chiyome L. Fukino, MD
Director of Public Health
State of Hawaii Department of Health
Honolulu, Hawaii 98601-3378

Dear Ms. Fukino:

This is a second request for a copy of Mr. Barack Obama's birth certificate, this time under Hawaii's Uniform Information Practices Act and HRS § 338-18, the section of the Hawaii Revised Statutes that deals with revealing information in public health records. Ms. Janice Okubo timely responded to my earlier request for information but has misconstrued § 338-18 of the Hawaii Revised Statutes in three ways.

First, the statute states that the information can be divulged to someone who "has a direct and tangible interest in the record". It then goes on to list people who have such an interest. However, the statute DOES NOT LIMIT having "a direct and tangible interest in the record" to the individuals so listed. Rather, it simply states:

"The following persons shall be considered to have a direct and tangible interest in a public health statistics record:..."

If the authors of the statute had aimed to limit access to the list, they could have stated that the list is exhaustive and exclusive in the statute, but the statute DOES NOT so state. Hence, Ms. Okubo is incorrect in claiming that the people who have "direct and tangible interest" are defined in the statute. The statute merely states those who should be construed to have such an interest (a safe harbor list) but DOES NOT STATE that others may not also have "direct and tangible interest".

Since all Americans have a "direct and tangible interest" in knowing what Mr. Obama's birth certificate states, you and the Department of Health are violating § 338-18 by refusing to provide a certified copy of the birth certificate to any American.

Second, the statute clearly states (emphasis added):

"To protect the integrity of vital statistics records, to ensure their proper use, and to ensure the efficient and proper administration of the vital statistics system, it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital statistics records, or to copy or issue a copy of all or part of any such record, except as authorized by this part or by rules adopted by the department of health."

The law permits your Department to adopt rules that conform to overriding public policy concerns. One of these concerns pertains to providing important information about a presidential candidate. To refuse to provide information about a presidential candidate on the pretext of inaccurately interpreted public law to a public with a direct and tangible interest in the information suggests disregard for the public interest as expressed in Hawaii's Open Records Law.

A booklet concerning Hawaii's Open Records Law or Uniform Information Practices Act (available at http://hawaii.gov/oip/UIPABooklet-Word.doc) states:

"Democracy exists only when government functions in the open and protects the rights of its citizens to participate in that government. In 1988, the Hawaii State Legislature enacted the Uniform Information Practices Act (Modified) (the “UIPA”) to preserve and ensure that open government and public participation...The Legislature recognized, however, that the “proper functioning of any public records law is very much dependent upon the attitude of those who implement the law[,]” requiring “strong and active agency implementation of the records laws.” The Legislature thus urged “all agencies to accept this new law as a challenge and a mandate to ensure public access to the public’s government.”

It does not appear that your department's "attitude" has been very focused on democracy or on the public interest in contrast to the Open Records Law's preamble. You have a law that says that birth certificate information should be divulged under rules adopted by your agency, but you then say that the rules are defined by statute. The statute says that anyone with a direct and tangible interest in the information should have access to the birth certificate information, and when a major-party presidential candidate's records are requested by a public with a direct and tangible interest, you erroneously claim that the statute includes an exhuastive list, which it does not.

I once again request, this time under Hawaii's Open Records Law and § 338-18 of the Hawaii Revised Statutes that you obey Hawaii's laws; stop your bureaucratic ballet; and provide me with a copy of Barack Obama's birth certificate.

Sincerely,


Mitchell Langbert, Ph.D.

Cc: Governor Linda Lingle, Janice Okubo

B. Letter to Barack Obama

PO Box 130
West Shokan, NY 12494

The Honorable Barack Obama
United States Senate
713 Hart Senate Office Building
Washingtn, DC 20510

Dear Senator Obama:

There have been accusations that you have refused to allow your birth certificate to be released to the public because you are interested in manipulating your opposition into thinking that there is a problem with it. I understand that you have campaigned on the premise of change and openness and therefore ought to have an interest in disproving this accusation of old-fashioned manipulation and deception.

Under the State of Hawaii's Disclosure of Records Rules (HRS 338-18(b)(7)the Department of Health may provide a birth certificate to:

7) A person or agency acting on behalf of the registrant

I hereby request that in the interest of "change" and openness in government that you authorize me in writing to obtain your birth certificate from the state of Hawaii.

Sincerely,


Mitchell Langbert, Ph.D.


III. Legal Text

A. Hawaii Revised Statutes (bold added)

§ 338-18. Disclosure of records.

(a) To protect the integrity of vital statistics records, to ensure their proper use, and to ensure the efficient and proper administration of the vital statistics system, it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital statistics records, or to copy or issue a copy of all or part of any such record, except as authorized by this part or by rules adopted by the department of health.

(b) The department shall not permit inspection of public health statistics records, or issue a certified copy of any such record or part thereof, unless it is satisfied that the applicant has a direct and tangible interest in the record. The following persons shall be considered to have a direct and tangible interest in a public health statistics record:

(1) The registrant;

(2) The spouse of the registrant;

(3) A parent of the registrant;

(4) A descendant of the registrant;

(5) A person having a common ancestor with the registrant;

(6) A legal guardian of the registrant;

(7) A person or agency acting on behalf of the registrant;

(8) A personal representative of the registrant's estate;

(9) A person whose right to inspect or obtain a certified copy of the record is established by an order of a court of competent jurisdiction;

(10) Adoptive parents who have filed a petition for adoption and who need to determine the death of one or more of the prospective adopted child's natural or legal parents;

(11) A person who needs to determine the marital status of a former spouse in order to determine the payment of alimony;

(12) A person who needs to determine the death of a nonrelated co-owner of property purchased under a joint tenancy agreement; and

(13) A person who needs a death certificate for the determination of payments under a credit insurance policy.

(c) The department may permit the use the data contained in public health statistical records for research purposes only, but no identifying use thereof shall be made.

(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.

(e) The department may permit persons working on genealogy projects access to microfilm or other copies of vital records of events that occurred more than seventy-five years prior to the current year.

(f) Subject to this section, the department may direct its local agents to make a return upon filing of birth, death, and fetal death certificates with them, of certain data shown to federal, state, territorial, county, or municipal agencies. Payment by these agencies for these services may be made as the department shall direct.

(g) The department shall not issue a verification in lieu of a certified copy of any such record, or any part thereof, unless it is satisfied that the applicant requesting a verification is:

(1) A person who has a direct and tangible interest in the record but requests a verification in lieu of a certified copy;

(2) A governmental agency or organization who for a legitimate government purpose maintains and needs to update official lists of persons in the ordinary course of the agency's or organization's activities;

(3) A governmental, private, social, or educational agency or organization who seeks confirmation of a certified copy of any such record submitted in support of or information provided about a vital event relating to any such record and contained in an official application made in the ordinary course of the agency's or organization's activities by an individual seeking employment with, entrance to, or the services or products of the agency or organization;

(4) A private or government attorney who seeks to confirm information about a vital event relating to any such record which was acquired during the course of or for purposes of legal proceedings; or

(5) An individual employed, endorsed, or sponsored by a governmental, private, social, or educational agency or organization who seeks to confirm information about a vital event relating to any such record in preparation of reports or publications by the agency or organization for research or educational purposes.

B. Hawaii's Uniform Information Practices Act(Open Records Law)

The Legislature pronounced that it is the policy of this State to conduct government business as openly as possible while protecting the right of privacy embodied in our State Constitution. Thus, Part I of the UIPA requires that the UIPA be applied and construed to promote its underlying purposes and policies, which are:

(1) To promote the public interest in disclosure;
(2) To provide for accurate, relevant, timely and complete records;
(3) To enhance government accountability;
(4) To make government accountable to individuals in the collection, use, and dissemination of information relating to them; and
(5) To balance the individual privacy interest and the public interest, allowing access unless disclosure would constitute a clearly unwarranted invasion of personal privacy.

Exception 1 – The Privacy Exception (§ 92F-13(1))

An agency may withhold access to a record if disclosure of the record would constitute a “clearly unwarranted invasion of personal privacy[.]” To withhold a record under this exception, an agency must be able to show that:

(1) An individual has a significant privacy interest in the information contained in the record; and
(2) The significant privacy interest is not outweighed by the public interest in disclosure.

OIP has further recognized that an individual has a significant privacy interest in his or her home contact information, date of birth, and ethnicity.

What is the public interest in disclosure?

The public interest to be considered is the public’s interest in the disclosure of official information that sheds light on an agency’s performance of its statutory purpose and the conduct of government officials, or which otherwise promotes governmental accountability.