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Thursday, April 15, 2010

Andy Martin threatens State of Hawai’i with new lawsuit over Obama secrecy

Internet Powerhouse Andy Martin says that the Hawai’i Attorney General’s attitude towards freedom of information involving Obama’s records is “insulting to the intelligence.” Martin is fundraising to support a new investigation in Honolulu beginning April 27th.

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Anthony R. Martin, J. D.
Executive Editor

April 14, 2010

Hon. Russell A Suzuki
Deputy Attorney general
Department of the Attorney General
425 Queen Street
Honolulu, HI 96813-2903
via fax (808) 586-1239

Re: UIPA documents letter of May 28, 2009

Dear Mr. Suzuki:

This will reply to your UIPA letter to me of May 29, 2009 which I recently had the opportunity to review. As a convenience, I have appended a copy of your letter to me to the faxed version of this letter. I did not include the Privilege Log itself.

Your office charged $600 to deliver a package of materials that were virtually useless and contained no information whatsoever involving Hawai’i inter-agency attempts to cover-up the release of Barack Obama’s original 1961 birth certificate

We have always tried to resolve our differences in a reasonable manner, and I will continue to do so. But if we do not resolve my objections to your letter by the close of business on Monday, April 26th, I will file suit later that week in Honolulu. I am flying to Honolulu on April 27th because I expect that we need to file a lawsuit to break the circle of corruption in Hawai’i government.

I was apparently the first person to seek access to what is now undeniably a prime document in American history, namely the original 1961 typewritten birth certificate of Barack Obama. Both I and persons who have followed after me have been met with an impenetrable stone wall of secrecy and prevarication, with one notable exception: Chiyome Fukino has repeatedly issued press releases and sought public attention for her claims she has seen this document and vouches for it. She sought to bolster Obama on the eve of the 2008 election, which is irrefutable evidence that your office and Fukino & Co. are politically biased in administering the UIPA.

I don't know what you are hiding, but you are hiding something. Nearly half of the American people now believe Obama is hiding the truth. You are on the losing side of history. The State of Hawai’i increasingly appears as a wholly-owned subsidiary of Obama, Inc. instead of as an independent state government.

With these prefatory comments I will move to a substantive response to your letter.

1. HRS 92F-13 (3)

For you to suggest that a statute concerning “frustration of a legitimate government function” has anything to do with this dispute is, frankly, an insult to my intelligence and an insult to the American people. While I enjoy the colorful displays of ancient Hawaiian culture on my trips to Hawai’i, Hawai’i is not a kingdom, or an independent nation. Hawai’i is one of the fifty states and bears a responsibility and relationship to each of the other 49 states and to every American. That principle arises out of the Privileges and Immunities Clause of the U.S. Constitution. So please do not insult me by suggesting that efforts to obtain access to an ancient document almost fifty years old involving the president of the United States in any way “frustrates” the functioning of the state government of Hawai’i. That kind of claim makes you look bad and makes the state look worse.

2. Executive privilege

Executive privilege has nothing to do with the state’s response to efforts by American citizens to obtain access to a prime document of American history. Quite by accident, the president of the United States claims to have been born in Hawai’i. His original, typewritten 1961 certificate is by any standard of law an ancient and archival document. In no way do efforts to obtain access to that document, or to the records of responses by Hawai’i officials to the public’s efforts to obtain access, constitute any sort of significant executive action.

Executive privilege was designed to protect genuinely critical decisions concerning current governmental matters, not to act as a roadblock to access to historic public records. The federal cases you cite concerned substantial policies concerning current government functions, not responses by government officials to ministerial requests for access to ancient historic records.

3. Attorney-client privilege

A. Who do you claim is the client?

It would seem to me that in your theme of analysis, the governor would be the client (though I deny that there is in fact a “client” exception for UIPA purposes) if anyone wanted to concoct a client for invocation of the attorney-client privilege. Under the attorney-client privilege, the client, not the attorney, invokes the privilege. Has Governor Lingle invoked the privilege? Does she even know you have invoked the privilege on her behalf? We need to know. There is no evidence your putative client has invoked the privilege, notwithstanding my belief that the “client” in this case is the people, not public officials.

B. The attorney-client privilege has no applicability

There is a good reason why, as you candidly concede, there is no attorney-client privilege jurisprudence in Hawai’i concerning the UIPA. The privilege does not apply to communications between government officials on matters not touching a substantial public concern. Moreover, the AG cannot assert the privilege for the governor, and the governor is not the holder of the privilege, the people are. That principle applies a fortiori where we are dealing with records of attempts to obtain public access to a historical document.

I would also point out that the UIPA is much broader than the federal Freedom of Information Act.

After reading your letter I did extensive research and also took a look at Florida case law. The Florida Supreme court considered an analogous claim, see City v. Miami Herald, 468 So.2d 218 (Fla. 1985)(no privilege in the absence of a clear legislative decision to create one) and Neu v. Miami Herald, 462 So.2d 821 (Fla. 1985)(the “evidence code” privilege does not trump the open government laws). Florida case law is significant because Florida’s policy of open records is virtually identical to Hawaii’s.

In sum and substance, there is no attorney-client privilege between Hawai’i government officials as a basis to suppress either ancient documents or to suppress responses to current efforts to obtain public access to ancient Hawaiian state archives.

C. The crime-fraud exception applies to my efforts

There has recently been a firestorm over efforts by Kenyan officials to claim Barack Obama was born in Kenya. Michelle Obama recently claimed Kenya is Obama’s “home country.” In other words, both the Obamas and Kenyan officials are casting a cloud over Hawaii’s claims that Obama was born in Hawai’i. There could be a crime/fraud in progress, cf. State v. Wong, 97 Hawai’i 512, 40 P.3rd 914 (Hawai’i 2002). Historians and writers have a vital interest in examining Hawaii’s original documents to see just what the 1961 record says, and what state officials have said internally since 2008 when the birth certificate issue mushroomed after my columns.

4. Other factors

There are other factors which bear on the ultimate resolution of release of the records for which you are claiming secrecy.
A. Waiver

(1) Fukino waiver

Ms. Fukino has repeatedly sought personal and political publicity for her manipulation of the documents in question. Fukino’s conduct clearly waives any privilege (i) as to the document itself and (ii) as to Hawai’i government records concerning responses by state officials to efforts to obtain access to the document.

(2) Obama waiver

Barack Obama and his employees have repeatedly stated he has released his “birth certificate.” That being the case, you cannot invoke secrecy on his behalf. He has waived any secrecy or privacy. Moreover the privacy/secrecy right of an executive official to control the release of historical documents is very limited, indeed, see e.g. Nixon v. Administrator, 433 US. 425, 97 S. Ct. 2777 (1977); U. S. v. Nixon, 418 U. S. 683, 04 S. Ct. 3090 (1974).

B. Constitutional legitimacy

Where bona fide questions have been raised concerning the constitutional eligibility of a person to serve as president, researchers/historians obviously seek to review the original documents to see what they say and how they look. (Please note that while I keep referring to "original documents," my claims extend as well to any documents generated in response to requests for access, which form the bulk of your privilege claims.) The 1961 birth certificate contains considerable detail that can cast light on Obama’s claims he was born in Hawai’i, particularly when Michelle Obama claims his “home” was somewhere else and Kenyan officials have reported he was born in Kenya.

C. The adverse inference rule in civil law

The 1961 birth certificate is a simple document. Why it has been concealed for so long, with so much legerdemain, mystifies me. Unless there is something that Obama and Hawai’i officials do not want the American people to know or see.

Henceforth I am going to apply the adverse inference rule to your efforts and Hawai’i’ s efforts to conceal Obama’s 1961 birth certificate, namely that the Court must draw an adverse inference from these rather shameless attempts at secrecy. While the Hawai’i Supreme Court had addressed the civil context of the adverse inference rule from a spoliation perspective, see Stender v. Vincent, 92 Hawai’i, 992 P.2d 50 (Hawai’i 2000), the same principles apply to the efforts of Fukino and her handlers to play cat-and-mouse with the 1961 document and to manipulate and control access in a politically motivated manner.

There are other miscellaneous issues with which I disagree. You removed phone numbers. If someone places a phone number in a public document, they intend for it to be public. No one writes to a public official believing they are engaging in a secret communication. The telephone redactions, as well as any others, are without legal or logical support. At a minimum there would have to be an invocation of secrecy by the initiating party, or you would have to contact them to invoke secrecy on that person’s behalf.


The American people are increasingly concerned that there is a constitutional usurper in the White House, and that voters were inveigled into voting for someone who was not eligible to hold the office of president. I have refrained to date from taking a position in that dispute because I have consistently maintained that we need to see the original birth certificate before we can make an informed decision on how the constitutional issues play out.

I have tried to avoid a UIPA lawsuit, and I waited patiently for six (6) months while you “processed” my request. Then you turned over 600 pages of nothing and asserted farcical defenses to the release of documents relating to public concerns about access to an ancient document.

With all due respect, my patience is at an end. Either you turn over the withheld documents, or we go to court to have a judge review your claims. Because I have decades of experience with an utterly corrupt judicial system in Chicago and Illinois, I am comfortable contending with the Hawai’i judiciary, which sometimes seen as though it is a sunshine-based carbon copy of the Chicago courts. But somewhere in Hawai’i there must be an honest judge that recognizes the damage being done to Hawai’i institutions by the continuing cover-up of a 50 year-old document of vital concern to American history.

Because I am traveling, faxes and e-mails reach me relatively promptly. Mailed letters will not. I would ask that you respond by fax or e-mail.

Please reply at your earliest convenience. I am in the process of preparing the lawsuit to be filed during the week of April 26th.

I think your office, the interests of the people of Hawai’i, and the interests of the American people would be best served by turning over all of the redacted or withheld materials to me. Otherwise, you can turn them over to a court.

Sincerely yours,



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Blogger J said...

Great letter.

With regard to your assumption that there is a judge in HI who values his oath to protect the constitution over his personal interests, you may be too optimistic.

Under UIPA rules relatives have an exception and can have access to BCs. One of Orly’s plaintiffs claimed to be a relative. Also, on the mother side there are several relatives in Germany, and of course on the father side in Kenya. Do you know if anyone tried that avenue? If not, why not try it? As I remember the rules don’t specify how close the relative must be.

If they refuse to release it to a relative you are representing that is an absolutely clear breaking their own rules and even HI judges would have difficulty disagree with that.

What do you think?

1:11 AM  

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