TerriK INVESTIGATION, PART 2: OIP Staff Attorney Linden Joesting’s Response to TerriK’s Appeal Appears To Confirm That The DoH Maintains Amended Vital Records For President Obama.

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TerriK INVESTIGATION, PART 2: OIP Staff Attorney Linden Joesting’s Response to TerriK’s Appeal Appears To Confirm That The DoH Maintains Amended Vital Records For President Obama.

The UIPA at 92F-3 explicitly defines “government records” as follows:

“Government record” means information maintained by an agency in written, auditory, visual, electronic, or other physical form.

When a state agency in Hawaii is faced with a request for government records, the Office of Information Practices Administrative Rules govern all responses to such a request.  State agencies may not issue a response which doesn’t conform to the OIP Administrative Rules.

Agencies must answer every request for government records within the four following types of response:

1.  the agency has the record and will provide it to you

2. the agency does not maintain/possess the record

3.  the agency has the record but you are denied access to it

4. the agency needs more information from you to understand your request

These are examples of the four basic responses available to a state agency.  For example, an agency may not tell a person that the agency refuses to say whether they possess a certain record.

This very issue was discussed  in OIP Opinion Letter 97-08, wherein a staff attorney for the Corporation Counsel was faced with a UIPA request concerning a legal memo.  The staff attorney refused to acknowledge whether the legal memo existed by citing attorney client privilege.

The requestor appealed to the OIP and the staff attorney was then required to submit to an investigation by the OIP into whether the memo existed.  The staff attorney had to cooperate with the OIP investigator.  He admitted that the memo did not exist and the requestor was informed of that fact.

When an agency “denies” access to a government record, the denial has a very explicit effect in that it operates as a statutory admission by the agency that they do maintain (possess) the requested record.

An agency can only deny access to a record it does actually maintain.

If the agency does not have the record, then the agency must notify the requestor that the record is not maintained by the agency.


TerriK assumed that President Obama had amended his vital records and simply asked for the amended records and all applications by Obama to amend or correct his vital records.  TerriK also requested all records of fees paid by Obama to amend the records.

The DoH was required to answer TerriK’s UIPA requests within one of the four responses discussed above.  And they never responded thereto by alleging that the amendment records she requested were not maintained by the DoH.

Instead, the DoH responded by denying TerriK access to the requested records citing the privacy protections of Haw. Rev. Stat. 338-18(b).

Obviously, there is no privacy right to a record which does not exist.

The DoH has therefore admitted that they maintain amended birth records for President Obama.


OIP Staff Attorney Linden Joesting provided TerriK with proper guidance throughout the UIPA request procedure by conforming to the true intent of the UIPA; to assist public inquiry rather than stand in its way.  Joesting’s credentials were summarized in an OIP newsletter from April 2008:

Linden is a graduate of Wellesley College and Stanford Law School, where she was an associate editor of the Stanford Law Review. Linden spent seven years on active duty in the U.S. Coast Guard, clerked at the circuit court, and then worked for the Department of the Attorney General and the Department of Transportation. She comes to us from the Office of the Auditor.

When TerriK became confused by the initial responses of the DoH, she asked the OIP to review a pending UIPA request directed to DoH Director Fukino on August 18, 2009:

To staff attorney
From: Terri K (terri1958@hotmail.com)
Sent: Tue 8/18/09 3:50 PM
To: oip@hawaii.gov

Please look over the following UIPA request and let me know if I have submitted it to the Dept of Health correctly and within reason:

Dear Dr. Fukino…

1.) I request the blank/voided or ‘unfilled’ forms issued by the Department of Health that Dr. Fukino saw per her public statement below, be disclosed OR a list of those forms & types of records. I would also like included copies of any notations, amendment notes and stamp impressions that are found on these documents. If any of the following records I requested are already available for downloading on the web, please send me direct links to their location(s). Please let me know if this is not clear or if there is a more suitable record(s) to be requesting:

2.) I request any record of receipt by the DoH for all proof that was offered and/or used to amend any of the vital records that Dr. Fukino saw per her public statement below, be disclosed:

3.) Also, per Dr. Fukino’s public statement on 7/27/09 (below), I would like a copy of the record OR portion of the record(s) that has the word ‘Amended’ stamped or written and also initialed by the DoH reviewer.  In addition to this I would like a copy of the record or portion of the record that states what type of information was amended, when and why. Please provide me electronic copies…

Later that day, Staff Attorney Linden Joesting replied (please note the time zone difference for email time stamp):

From: oip@hawaii.gov
To: terri1958@hotmail.com
Subject: RE: To staff attorney
Date: Tue, 18 Aug 2009 12:36:47 -1000

Ms. Terri K,

You may certainly send this request for records to the Department of Health. Please note however that you do not need to reference that the request is for their policy and procedure. A list simply of the documents would be adequate. If they (sic) agency does not have any such documents they should say so. For example, Dr. Fukino does not make any reference to an amended vital record of Barack Obama and therefore there may not be any.

Thank you for your inquiry.

Linden Joesting
Staff Attorney
Office of Information Practices
State of Hawaii
No. 1 Capitol District Building
250 S. Hotel St., Suite 107
Honolulu, Hawaii 96813
Tel.: 808-586-1400
Fax: 808-586-1412
E-mail: oip@hawaii.gov
Web site: http://www.hawaii.gov/oip

Staff Attorney Joesting correctly enlightened TerriK that the DoH was required to tell her if the records she requested were not maintained by the DoH.  And Joesting’s response makes it perfectly clear that she is aware TerriK was requesting amended vital records.

TerriK responded to Joesting as follows:

RE: To staff attorney
From: Terri K (terri1958@hotmail.com)
Sent: Tue 8/18/09 6:44 PM
To: oip@hawaii.gov

Thank you. I understand she didn’t make any reference to an ‘amended’ record, however she did make reference to more than one record “original vital records”(plural). I suppose I understand that to mean there MUST be an amended record and supportive material (vital recordS). Otherwise, why would more than one record need to be seen verifying the President is a natural born citizen and/or born in Hawaii. A simple original long form birth certificate would do it.


TerriK made numerous requests for Obama’s “amended” vital records.  These UIPA requests were written in a form which assumed amended records existed.  Both Okubo and Joesting, in their responses to TerriK mentioned that Director Fukino didn’t actually say Obama amended his records.  But please note the difference between Joesting’s guidance above and Okubo’s statement below which predated Joesting’s comment by three weeks:

From: “Okubo, Janice S.” <janice.okubo@doh.hawaii.gov>
Date: July 29, 2009 2:27:49 PM EDT
To: [TerriK, real name redacted]
Subject: RE: One more question.

The director has never used the word “AMMENDED” (sic) in her statements, and has nothing further to add to her statements.

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

While Joesting provided forthright guidance, Okubo’s curt statement is an evasive attempt at misdirection.

Imagine your child comes home from school with a report card and one of the grades is “B”.  But as you look at the grade, it appears that the “B” might have been an “F” that was made to look like a “B”.  So, you look into your child’s eyes and ask, “Did you amend this report card to make an F look like a B?”

And your child replies, “I didn’t say I amended my report card.”

That’s one clever child who probably has a brilliant career in modern US politics ahead.  But the child didn’t give you an answer to your question.  The question requires a simple yes or no answer.  The child’s response is a clever attempt at misdirection.  It was this evasive response by Okubo which really drew me into the TerriK investigation.  It was a big red flag and a very curious choice of words.

Joesting also made reference to the fact that Fukino didn’t use the word “amended”, but in doing so Joesting properly informed TerriK that if the amendments didn’t exist, the DoH should inform her of that fact.

But the DoH never said that amended records didn’t exist in their files.  They did, however, deny access to those records and that means the records must be in their possession.


On August 18, 2009 TerriK added the following to her pending UIPA request and forwarded it to Director Fukino.

From: terri1958@hotmail.com
To: chiyome.fukino@doh.hawaii.gov; janice.okubo@doh.hawaii.gov; oip@hawaii.gov
Subject: Third UIPA records request
Date: Tue, 18 Aug 2009 18:17:45 -0400

Dear Dr. Fukino…

1.) I request an electronic copy of the invoice and receipt for the fee(s) charged to and paid by President Barack Obama, or anyone claiming to represent him, for amendments made to his vital records…

Then TerriK contacted the OIP to inquire if this new request was proper.  Here was Staff Attorney Joesting’s  forthright response:

From: oip@hawaii.gov
To: terri1958@hotmail.com
Subject: RE: To staff attorney
Date: Tue, 18 Aug 2009 13:33:58 -1000

…Yes, you may ask for a copy of the invoice and receipt.  If the agency has the documents in electronic form, or can easily convert the documents into an electronic form, then they may send it to you electronically.  If no amendments were made, there would not be any such documents and the agency should inform you of that fact.

Linden H. Joesting
Staff Attorney
Office of Information Practices…


You will note from Part 1 of this report that DoH Director Fukino issued responses to TerriK which made it appear as if her UIPA requests were being denied as if they were “verification” requests.  A request for records under the UIPA is not a request that the agency “verify” a record as per Haw. Rev. Stat. 338(b)(13)(g).  The word “verification” appears to have been used by the DoH to confuse TerriK who never asked for a statutory verification of President Obama’s vital records.

TerriK requested the amended vital records, applications for such amendments and records for fees paid as to amendments.  And the DoH was required to respond within one of the four canned responses above.  In the end, due to TerriK’s persistence, the  DoH did eventually answer with a denial of access, which is also a statutory admission that they maintain the records.


Here was the official DoH response from the DoH to TerriK:

Subject: RE: Please add to my UIPA request
Date: Thu, 3 Sep 2009 09:48:54 -1000
From: janice.okubo@doh.hawaii.gov
To: terri1958@hotmail.com

Aloha Terri K,

I am responding to your latest e-mails on behalf of Dr. Fukino and the Department of Health.  Section 92F-13, Hawaii Revised Statutes, says that disclosure is not required for government records that are protected from disclosure by state law. Section 338-18, Hawaii Revised Statutes, is just such a law.  It prohibits disclosure of vital statistics records to anyone who does not have a direct and tangible interest in the record.  Those persons with a direct and tangible interest are listed specifically in the statute.  Under section 338-1, Hawaii Revised Statutes, vital statistics records include registration, preparation, and preservation of data pertaining to births and other vital events, as well as related information.

Therefore, neither a birth certificate nor any information related to a birth certificate may be disclosed to a person who does not have a direct and tangible interest in it. You have not shown that you have such an interest in President Obama’s birth certificate, so we cannot disclose to you the birth certificate or any related information.

We now consider this matter closed. We do not plan to respond to further UIPA requests from you for President Obama’s birth certificate or any related information.

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


On September 4, 2009 TerriK wrote an appeal to the OIP.  On September 17, 2009 Staff Attorney Joesting issued an official determination by the OIP (see below) which is worded very carefully and which supplies important context for future reference.  Joesting includes a statement which testifies to the fact that TerriK’s various UIPA requests were clearly written and understood.  This is evidence that there was no confusion as to what records were requested.

Joesting also characterizes the DoH response as a denial of access due to privacy protection.  By documenting that the DoH “denied” TerriK access to the requested records, Staff Attorney Joesting was fully aware that a denial means the agency maintains the requested records.

Joesting upheld the DoH denial because she agreed with the DoH that TerriK was not a person who could be granted access to the records according to the privacy provisions of Haw. Rev. Stat. 338-18.  But Joesting did not include a statement – as did Fukino and Okubo – alleging that state law prohibits the release of “any information” about a Hawaii vital record to the general public.

Furthermore, Joesting’s response to TerriK’s appeal does not concern separate UIPA requests made concerning information collected and maintained by the DoH for the purpose of making Fukino’s July 27, 2009 statement regarding Obama’s alleged natural born citizen status.  We will return to that separate issue in Part 3.

Part 2 of the TerriK investigation report concludes with Joestling’s official OIP response to TerriK’s appeal:


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