TerriK INVESTIGATION – PART 1: Hawaii Department of Health Directors Fukino and Okubo Are Guilty of Misdirection.

Saved from google cache. Leo has deleted this good work from his blog but I have preserved it for study. It is very interesting and should be kept in the public eye. Some links don’t work. Any link to leo’s site don’t.

TerriK INVESTIGATION – PART 1: Hawaii Department of Health Directors Fukino and Okubo Are Guilty of Misdirection.

INTRODUCTION

The entire Presidential eligibility movement has been ridiculed as a fringe “conspiracy theory” by main stream media, members of Congress and even Judges speaking directly from the bench. This ridicule is largely due to public statements made by Hawaii Department of Health Director, Dr. Chiyome Fukino (see below) which testify that she has seen vital records maintained by her office which prove President Obama was born in Hawaii and that he has an original birth certificate on file there.

The ridicule has been broad, extending even to public investigators like myself who believe that President Obama was actually born in Hawaii. But reliance on Director Fukino and her Communications Director Janice Okubo are sadly misplaced. They are guilty of misdirecting the public away from vital records information made expressly available by statute where no privacy exceptions apply.

These accusations are not a matter of conjecture. They are a matter of fact and shall be proved. This, Part 1 of the full report, will illustrate multiple instances of misdirection.

Following reports in the days ahead will detail various information requests made by TerriK and their eventual resolution. The resolution involves official responses which – according to statutory application – admit the existence of amendments and/or corrections to President Obama’s vital records despite the continuing pattern of misdirection.

BACKGROUND

The state of Hawaii enacted the Uniform Information Practices Act (UIPA) as a means by which the public may have free and open access to all information maintained by the Government. While some information is obviously restricted to protect the privacy of individuals, the intent of the statute is clear; to help the public access government held information.

Page 9 of the UIPA Manual states:

Given this direction that the UIPA be interpreted to promote open government, any doubt regarding disclosure of a record should likely be resolved in favor of access.

Unfortunately, officials at the Hawaii Department of Health (DoH) have been using the statute for the opposite purpose it was intended. This investigation will bear witness to blatant offensive abuses of the law which have clearly frustrated the purpose and scope of the statute, a statute intended to do just the opposite.

The UIPA Manual states in its introduction:

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.

At the same time, it created the Office of Information Practices (“OIP”) to implement the UIPA and to serve as a resource for both the public and government agencies in interpreting and applying its provisions. 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.”

Tactics used by Department of Health Director Fukino and Communications Director Okubo have frustrated the true intent of the UIPA. TerriK and myself will request that the Director of the Office of Information Practices – an office created to enforce the UIPA – institute disciplinary proceedings against Fukino and Okubo based upon their wrongful conduct concerning multiple UIPA requests made by TerriK.

Whether intentional fraud was involved is an issue that must be looked into by law enforcement.

GENESIS OF THE TerriK INVESTIGATION

DoH Director Fukino issued the following statement in a press release dated October 31, 2008:

…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.

Eight months later, in a press release dated July 27, 2009, Director Fukino further 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 took immediate notice that the second statement mentioned “original vital records” (plural), whereas the first statement only referred to a single record; an “original birth certificate”. TerriK deduced that any definition of natural born citizen must refer to parentage and/or place of birth, both of which should have been contained in the original birth certificate.

Since Director Fukino viewed “vital records” in making her second public statement, TerriK then assumed that President Obama’s original birth certificate had been amended and/or corrected – in that had it not been so changed, only the original birth certificate (singular) would have required access by Fukino rather than “vital records” (plural).

TerriK’s research into the UIPA also revealed that if Obama’s records had been amended, Obama was required by the UIPA statute to make preliminary UIPA requests himself – to see his own records and also to amend or correct them.

UIPA requests are themselves government records maintained according to statute just as birth and other vital records are maintained.

TerriK, after assuming those UIPA requests had been made, then made a UIPA request herself requesting all information pertaining to – not just the actual amendments, if any – but also to the UIPA requests required to see records and amend them.

TerriK originally believed that the actual vital birth records were completely protected under Section 338-18 of the Hawaii Revised Statutes. But it wasn’t clear to her that UIPA requests for records, requests to amend and/or correct vital records, and fees paid thereto were also protected under the statutes.

Regardless, she simply requested those UIPA records as if they did exist and hoped for the best.

MISDIRECTED BY DEPARTMENT OF HEALTH OFFICIALS

While TerriK did receive some accurate guidance from staff attorneys in the OIP (which will be discussed in following reports), the responses from Directors Fukino and Akubo in the DoH were misleading and deceptive. They failed to provide clear statutory guidance where such guidance was obviously proper.

The following statement was made by Director Fukino in an email to TerriK on August 6, 2009:

From: “Fukino, Chiyome L.”

Date: August 6, 2009 3:54:02 PM EDT

To: [MissTickly, real name and email redacted] oip@hawaii.gov

Subject: RE: Appeal for urgency

Dear [TerriK (real name redacted)],

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. 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/…

Sincerely,
Chiyome L. Fukino, MD
Director
Hawaii State Department of Health

The statute cited – HRS 338 – operates – according to Fukino’s statement above – to prevent the disclosure of “any information about a Hawaii vital record” to the public at large. Unfortunately, that is a blatantly false statement. In fact, it appears to be intentionally fraudulent having coming from an official who certainly knows it’s false.

The very same statute – at 338-18(d) – provides:

(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.

Had TerriK been made aware of this subsection, she could have specifically applied it to Fukino’s July 27, 2009 press release and requested the “index data” pertaining to all “vital records” kept by the state of Hawaii for President Obama.

As I write this, despite the fact that HRS 338-18(d) makes such index data available with no exceptions, the state of Hawaii Department of Health has never released to TerriK or, to my knowledge, anyone else, index data concerning vital records of President Obama other than the existence of an original birth certificate.

The public is entitled, with no exception provided by law, to examine all index data referred to in HRS 338-18(d) pertaining to each and every vital record on file in the state of Hawaii for President Obama.

Due to her lingering intuition, TerriK kept the investigation going, but it wasn’t until this week that she learned about and understood the importance of HRS 338-18(d). She was completely baffled when I brought it to her attention. Throughout her voluminous correspondence with the DoH and OIP, subsection (d) had never been mentioned to her.

The general public are not skilled in complex statutory interpretation. Nor are they generally skilled in legal and document research. The UIPA was created to assist the public in these difficult areas. Moreover, according to the UIPA Manual, a bias exists for public disclosure of information. Yet, Director Fukino not only failed to inform TerriK about the mandated availability of index data listed in 338-18(d), Fukino insisted that “State law prohibits the Department of Health from disclosing any information about a Hawaii vital record” to the public at large.

But “index data” is “information about a Hawaii vital record”.

Because of the ongoing misdirection, you might believe an exception to 338-18(d) exists. You would be wrong.

The DoH Communications Director, Janice Okubo, repeated the misdirection in an email sent to TerriK on September 09, 2009:

RE: Please add to my UIPA request
From: Okubo, Janice S. (janice.okubo@doh.hawaii.gov)
Sent: Thu 9/03/09 3:48 PM
To: Terri K (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

This example of misdirection is even more egregious in that it specifically cites 338-18 while failing to acknowledge subsection (d) of the very same statute. The misdirection is found where Akubo states, “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”.

Again, “index data” most certainly is “information about a Hawaii vital record”.

The Department of Health has – through a continuing pattern of misdirection – kept the public in the dark regarding the identification of vital statistics records other than Obama’s original birth certificate by failing to acknowledge the open availability of “index data” to the public at large via 338-18(d).

I will detail another example of misdirection below, but first I must draw your attention to Office of Information Practices Opinion Letter No. 90-07. (Official citation is OIP Op. Ltr.No. 90-7.) (The prior link goes to the full text of 90-07 while the general page for all OIP opinion letters is here.) This letter will astound anyone familiar with the public statements of DoH Directors Fukino and Okubo.

The direct question presented to the OIP – and answered by Opinion Letter 90-07 was:

“Whether, under the UIPA, the DOE may disclose an individual’s birthdate and social security number contained in a government record to NASDTEC.”

While they denied NASDTEC access to the information requested on other grounds, the OIP included these conclusions concerning HRS 338-18(d) in OIP Opinion Letter 90-07:

We, however, recognize that an individual’s birthdate, social security number, or both are typically found in some government records required by law to be public, including index data on vital statistics, section 338-18(d), Hawaii Revised Statutes; voter registration affidavits, section 11-15, Hawaii Revised Statutes; and a general county register of registered voters, section 11-14, Hawaii Revised Statutes. Where a state or federal law expressly authorizes a government record to be disclosed, disclosure will be required by the UIPA notwithstanding an applicable exception. Haw. Rev. Stat.  92F-12 (b)(2) (Supp. 1989). If an individual’s social security number or birthdate is contained in a government record required to be public, this information is accordingly made public as part of that public government record.

Furthermore, an individual’s social security number or birthdate may be contained in the government records listed in section 92F-12, Hawaii Revised Statutes, which are expressly made public under the UIPA. For these particular records, the Legislature has essentially performed a “balancing” of competing privacy and public interests and has deemed that the public interest in disclosure is greater. The records listed in subsection 92F-12(a), Hawaii Revised Statutes, are records “which the Legislature declares, as a matter of public policy, shall be disclosed. As to these records, the exceptions such as for personal privacy . . . are inapplicable.” S. Conf. Comm. Rep. No. 235, 14th Leg., 1988 Reg. Sess., Haw. S.J. 689, 690 (1988).

I do not believe that index data available to the public at large via 338-18(d) still contains date of birth and social security number. But the available index data still contains information relevant to TerriK’s UIPA requests. Please read the last paragraph above again now. Specifically, the last line demands repeating, “the exceptions such as for personal privacy . . . are inapplicable.”

This will be a very important Opinion Letter as it demands that all records required by statute to be made available in 92F-12 under the UIPA are not subject to privacy exceptions. In my introductory report concerning the TerriK investigation, I asked you to take note of the UIPA at 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;

We will return to this provision when we discuss TerriK’s UIPA requests concerning the dual public statements made by Director Fukino on July 27, 2009; that Obama was born in Hawaii and that he is a natural born citizen. All information collected and maintained for purposes of making both of those statements must be released according to 92F-12(15). And by applying Opinion Letter 90-07 to that information, we can be sure that no exceptions exist which can deny public disclosure of the same.

OIP OPINION LETTER 07-07.

The following letter shall come as a big surprise to TerriK and the entire eligibility movement as it appears to compel the release of President Obama’s original birth certificate (or whatever vital records Director Fukino examined for the purpose of making the public statement that he was born in Hawaii) in redacted form.

In OIP Opinion Letter 07-07 (written on April 18, 2007 by current OIP staff attorney Cathy Takase, one of the officials who responded to TerriK in writing) (official citation is OIP Op. Ltr. No. 07-07), it was stated – in relation to index data made available to the public by DoH via 338-18(d) – that an individual has no privacy interest in information that the Department of Health has already made available to the public. Here is the relevant text:

“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.”

If we analyze OIP Opinion Letter 07-07 – in light of the index data available to the public and maintained by the DoH – as well as Director Fukino’s July 27, 2009 public announcement – offered in an official DoH press release, on DoH letterhead – that she had seen the vital records of President Obama and they prove he was born in Hawaii, then the public should be entitled to see – in redacted form – whatever vital records were used to expose his birth in Hawaii, as well as (if not the same document) original vital records – again in redacted form – which contain the viewable index data.

It’s quite amazing, but OIP Opinion Letter 07-07 clearly indicates that once information contained in a vital record is exposed, 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).

Needless to say, TerriK was never directed to OIP Opinion Letter 07-07, OIP Opinion Letter 90-07, the UIPA at 92F-12(15) or Haw. Rev. Sta. 338-18(d). So much for the opening statement in the UIPA manual regarding the proper implementation of the statute depending on the “attitude” of state officials to embody the spirit in which the law was written; to “deliver on its ‘inherent promise’ to ensure implementation: educating the public of its rights and … assisting the public in gaining access to records…”

CONCLUSIONS

The actions of Director Fukino and Communications Director Okubo couldn’t be more blatantly opposed to the Hawaii legislature’s intention of “open government and public participation”. Certainly, since these officials are familiar with these statutes, it appears some of their false statements were intentional. Whether a pattern of fraud existed for the purpose of confounding genuine public investigations into government should be the subject of both disciplinary and criminal investigations.

“Part 1″ of this report now concludes with another example of misdirection given to TerriK by DoH Director Fukino.

In her email to TerriK dated August 6, 2009 (see above), Fukino makes reference to the specific practice of record “verification” (enacted by the Hawaii legislature in 2001). Verification is a mechanism which allows a person to have their vital records “verified” by Hawaii officials in lieu of obtaining a certified copy of those records. General access to the content of an official “verification” is not available to the general public. The same rules that govern access to vital records are applied.

So, if an ordinary member of the public were to be directed by an official to that part of the statute which defines a “verification” as a protected vital record, and that ordinary citizen was also not aware of HRS 338-18(d), then they might mistakenly assume that the restrictions enacted to access an official statutory “verification” might also apply to a UIPA request to simply confirm the existence of basic information pertaining to vital records, ie name of registrant and type of vital event.

Therefore, such a person might be led to believe such basic data is not made available to the public…when in fact it must be disclosed under 338-18(d). If so guided by a government official, that person might be persuaded to give up their research.

Knowing that TerriK had made numerous UIPA requests simply to inquire whether certain records even existed, please review Director Fukino’s August 6, 2009 e mail to TerriK once again:

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. For information on the law that governs vital records in the State of Hawaii, please refer to HRS §338…

First, as we’ve already discussed, the statement wrongly informed TerriK that “any information about a Hawaii vital record” must be denied to her. Second, rather than directing TerriK to that portion of the statute which would have helped her obtain some of the information she had properly and fairly requested – 338-18(d), Fukino’s statement misdirects TerriK to that part of the statute concerned with “verification” – which was no help to her as “verifications” are not available to the general public.

All of the above is evidence of an egregious pattern of misdirection. I will provide more examples of this pattern in follow up reports.

Report prepared by Leo C. Donofrio, Attorney. Published on September 24, 2009.

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