Apr 7, 8:50 PM EDT

Hawaii appeals court rejects 'birther' appeal

By AUDREY McAVOY
Associated Press


HONOLULU (AP) -- A Hawaii appeals court has rejected a man's request to "inspect and copy" Honolulu-born President Barack Obama's birth certificate, saying the plaintiff failed to state a valid claim to having access to the document.

Chief Judge Craig Nakamura wrote in an opinion issued Thursday that Robert V. Justice didn't show there were "compelling circumstances" requiring the state Department of Health to show him the birth certificate. Two associate justices of the Hawaii Intermediate Court of Appeals concurred, one in a separate opinion.

Hawaii's privacy laws bar the release of birth records unless the requester is someone with a tangible interest, such as a close family member.

Justice, who represented himself before the court, said "the health and safety of every American" was at stake in this case because Obama, as president, is responsible for ensuring national security and "the health and safety of the 300 million Americans living on American soil."

But Nakamura wrote the exception exists to allow people access to vital records in medical or safety emergencies.

He noted the federal Privacy Act has a similar provision. He cited a 1974 U.S. Senate committee report on the law saying the exception exists to protect a government employee or agency from violating the law when they have to release personal information about someone to save the person's life. A separate U.S. House committee report from the same year said an airline crash or an epidemic would be examples of valid emergency situations in which an exception would apply.

Nakamura said Justice's desire to verify Obama's eligibility for president doesn't meet this standard. He added Justice failed to "allege any basis for questioning that President Obama is a natural born citizen and that he is eligible to serve as president."

Butterbunns is not happy. She thinks a Nebraska housewife has a better grasp of Hawaii law than the state appellate court judges. "The standard for disclosure in Hawaii is a “scintilla of interest”. If there is a “scintilla” of public interest in disclosure it outweighs privacy concerns."

I'm sure butterbutt cited her authority for the standard being a "scintilla."

1. Personal Privacy Exception. An agency should not allow public inspection or duplication of a personnel record which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy. Haw. Rev. Stat. § 92F-13(1) (1993).

2. Balancing Test. To determine whether disclosure would constitute a clearly unwarranted invasion of personal privacy, the UIPA’s balancing test must be applied: if the public interest in disclosure outweighs any privacy interests in a government record, disclosure would not constitute a clearly unwarranted invasion of personal privacy. Haw. Rev. Stat. § 92F-14(a) (Supp. 2000).

3. How to Apply the Balancing Test.

a) If an individual’s privacy interest in a personnel record is significant (see examples in F.4. below), it is weighed against the public interest in disclosure:

1) If the privacy interest outweighs the public interest, the information is confidential; and

2) If the public interest outweighs the privacy interest, the information is public.

b) When balancing the privacy rights of an individual against the public interest in disclosure, the public interest to be considered is that which sheds light upon the workings of government. OIP Op. Ltr. No. 93-20 at 7 (Dec. 30, 1993). The OIP reached this conclusion by looking at:

[t]wo basic policies served by the UIPA, which are to “[p]romote the public interest in disclosure” and to “[e]nhance governmental accountability through a general policy of access to government records.” Haw. Rev. Stat. § 92F-2 [1993]. Further, in enacting the UIPA, the Legislature declared that “it is the policy of this State that the formation and conduct of public policy--the discussions,

c) If an individual’s privacy interest is not significant,then a “scintilla” of public interest will require the disclosure of the personnel record. S. Conf. Comm. Rep. No. 235, 14th Leg., 1988 Reg. Sess., Haw. S.J. 689, 690 (1988); H. Conf. Comm. Rep. No. 112-88, Haw. H.J. 817, 818 (1988).

4. Significant Privacy Interest; Examples. An individual has a significant privacy interest in the following information or records ... :

* * *

c) Birthdate. See OIP Op. Ltr. No. 90-7 (Feb. 9, 1990).

d) Social security number. See OIP Op. Ltr. No. 90-7 (Feb. 9, 1990).

e) Information relating to medical, psychiatric, or psychological history, diagnosis, condition, treatment, or evaluation (other than directory information while an individual is present at a government facility). Haw. Rev. Stat. § 92F-14(b)(1) (Supp. 2000).

Appeals court rebuffs man seeking Obama birth certificate

By Star-Advertiser staff

POSTED: 11:02 a.m. HST, Apr 07, 2011

The state appeals court affirmed this morning the denial of a request to inspect and review President Barack Obama's birth certificate.

In a 3-0 vote, the Hawaii Intermediate Court of Appeals upheld a 2009 ruling by then-state Circuit Judge Eden Elizabeth Hifo, who dismissed the lawsuit by a man identified as "Dr. Robert V. Justice," who represented himself. He listed a Beverly Hills, Calif., address on his court papers.

In his legal brief to the appeals court, Justice wrote the inspection of the birth certificate will "ensure the health and safety of all 300 million of us by making sure that our military and our nuclear and chemical arsenals are still under our control and not in the control of any one of our enemies."

The appeals court said Justice sought the review under the state open-records law requiring the disclosure of documents based on a showing of "compelling circumstances affecting the health or safety of any individual."

More at the link


Butterbunns is not happy. She thinks a Nebraska housewife has a better grasp of Hawaii law than the state appellate court judges. "The standard for disclosure in Hawaii is a “scintilla of interest”. If there is a “scintilla” of public interest in disclosure it outweighs privacy concerns."

Yes. viewtopic.php?f=25&t=5701

Don't jump on me; I'm just playing devil's advocate here...

I saw a comment on another board theorizing that the President has waived the privacy interest in his birth records by publishing them. Since he waived (the argument goes) there is nothing to balance against the "scintilla" of public interest in obtaining them.

Do we know if this argument has been made (and rejected) in Hawaii? I would think that there would be a couple of grounds to reject the argument. 1) Finding that the privacy interests of living persons cannot be waived, 2) finding that the waiver was limited only to the information on the COLB, allowing the state to confirm (yet again) the COLB information, etc.

Anything out there yet on this issue?

I am thoroughly confused.

Whose question were you answering, Filly? Your link is a circular one, so I can't figure out if you were mocking my confusion or not.

No cite available yet per Westlaw. But say, is the below case one we're already aware of?

---

Supreme Court of Hawai‘i. CONSTITUTION PARTY; Alan L. Keyes, Plaintiffs, v. Linda LINGLE in her official capacity as Governor of the State of Hawai‘i

Plaintiff's reason for seeking disclosure of President Obama's birth records does not state an "overpowering" or urgent need for the records to save the life or protect the safety of an individual in a medical or safety emergency. Under the United States Constitution, the power to remove a sitting President resides in Congress. [highlight]Barnett v. Obama[/highlight], No. 09-0082, 2009 WL 3861788, at *15-*16 (C.D. Cal. Oct. 29, 2009). Plaintiff's asserted need to inspect President Obama's birth records is diminished by the fact that Plaintiff does not have the power or authority to determine President Obama's eligibility to serve as President. Moreover, Plaintiff's complaint did not allege any basis for questioning that President Obama is a natural born citizen and that he is eligible to serve as President. Under these circumstances, we conclude that Plaintiff failed to state a claim for relief based on HRS [secs.] 92F-12(b)(3).

Don't jump on me; I'm just playing devil's advocate here...

I saw a comment on another board theorizing that the President has waived the privacy interest in his birth records by publishing them. Since he waived (the argument goes) there is nothing to balance against the "scintilla" of public interest in obtaining them.

Do we know if this argument has been made (and rejected) in Hawaii? I would think that there would be a couple of grounds to reject the argument. 1) Finding that the privacy interests of living persons cannot be waived, 2) finding that the waiver was limited only to the information on the COLB, allowing the state to confirm (yet again) the COLB information, etc.

Anything out there yet on this issue?

the President has waived the privacy interest in his birth records by publishing them