1 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TRANSCRIPT OF PROCEEDINGS Had before the HONORABLE GARY W. B.

CHANG, Judge presiding, on Thursday, December 8, 2011, in the above-entitled matter; to wit, Motion to Dismiss Complaint to Compel Agency to Disclose Public Records Under The Uniform Information Practices Act (UIPA), Filed 9/30/11. APPEARANCES: JOHN S. CARROLL, ESQ. RICHARD C. KING, ESQ. JILL NAGAMINE Deputy Attorney General REBECCA QUINN Deputy Attorney General For the Plaintiff For the Defendant WILLIAM WOLF, Plaintiff, vs. LORETTA FUDDY, Defendant. IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII ) ) ) ) ) ) ) ) ) ) )

CIVIL NO. 11-1-2276

REPORTED BY: Jessica Akita, RPR, CSR #461 Official Court Reporter State of Hawaii

Official Court Reporter First Circuit Court State of Hawaii

2 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 arguing this? MR. CARROLL: will be arguing, Your Honor. THE COURT: Okay. And I will, Your Honor. All right. Counsel, Oh, I'm sorry. Mr. King Honor. THURSDAY, DECEMBER 8, 2011 THE CLERK: HONOLULU, HAWAII On the civil motions

calendar, calling case number 2, Civil Number 11-1-2276, William Wolf versus Loretta Fuddy for Motion to Dismiss Complaint. Counsel, please state your appearances. MS. NAGAMINE: Good afternoon, Your

Jill Nagamine and Rebecca Quinn, Deputies

Attorney General representing the movant defendants. MR. CARROLL: Good afternoon, Your Honor.

John Carroll together with Mr. King, who's been admitted for pro hac vice for the answering party. THE COURT: All right, who's gonna be

MS. NAGAMINE: THE COURT: please have a seat.

Okay.

We're here for the hearing on the Okay, Ms. Nagamine. Do

Defendant's Motion to Dismiss. MS. NAGAMINE:

Thank you, Your Honor.

you prefer that I go -- rehash my pleadings? THE COURT: No, I prefer not. Okay.

MS. NAGAMINE:

Official Court Reporter First Circuit Court State of Hawaii

3 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: I didn't think a -Actually, at this point

MS. NAGAMINE:

then I'm gonna reserve my argument to respond to the plaintiffs. THE COURT: Well, let me ask you. Oh, okay.

MS. NAGAMINE: THE COURT:

Let's say that an individual

believes that he has a claim against the President because he questions his place of birth, how would they go about investigating that to see whether he does in fact have a right? MS. NAGAMINE: Well, it would rest in

Congress, the U.S. Congress to initiate some kind of proceeding. So I would think that the appropriate

avenue would be for that individual to get someone from Congress to sponsor some kind of initiative and follow through on eligibility claims in that manner. THE COURT: to pursue such a claim? MS. NAGAMINE: No, they don't, Your Citizens don't have the right

Honor, other than going through channels that end up with the U.S. Congress. THE COURT: Why is that? I'm not

familiar with the congressional proceeding, but is that some exclusive remedy that's established by statute?

Official Court Reporter First Circuit Court State of Hawaii

4 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. NAGAMINE: I believe by the United

States Constitution, and I think I have a footnote, if I can actually -- instead of just guessing here. I'm sorry. Oops,

And this actually was cited by the court in Pardon me. Oh, yes. On

the Justice versus Fuddy case.

page eight of my moving papers, under the United States Constitution the power to remove a sitting president resides in Congress, and that's case law Barnett versus Obama. THE COURT: So not the Justice case? No. Well, Justice

MS. NAGAMINE: reaffirms that.

The Justice versus Fuddy case that was

decided earlier this year does affirm that the determination of the eligibility of the President rest with Congress. THE COURT: Exclusively? I believe so, Your Honor.

MS. NAGAMINE: I believe that's correct. THE COURT: want you to misrepresent.

You sure now because I don't Because if you say exclusive, That makes a huge

I mean, I rely on that a lot. difference. MS. NAGAMINE: that's why I'm hesitating. THE COURT:

Yeah, I know it does, so I --

So if you don't know don't

Official Court Reporter First Circuit Court State of Hawaii

5 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 your footnote. MS. NAGAMINE: in the footnote. THE COURT: Okay. Let me see if there is No, and it is -- it is not magnitude. MS. NAGAMINE: Yeah, I don't want to do guess because I'll call you back and sanction you if you misrepresent -MS. NAGAMINE: THE COURT: Yeah.

-- something of that

that, so I'm also reluctant to say I don't know, but I think the answer at this point is I don't know. I

believe that it's an exclusive remedy for Congress, but I don't -THE COURT: Because I don't see --- I don't know for sure.

MS. NAGAMINE: THE COURT:

-- I don't see exclusive in

MS. NAGAMINE:

something of that nature in the Justice versus Fuddy case, which I have brought with me. THE COURT: (Nods head.) I'm looking at Section 4

MS. NAGAMINE:

of the Justice versus Fuddy case which states, "Under the United States Constitution, the power to remove a sitting president resides in Congress," and it does cite

Official Court Reporter First Circuit Court State of Hawaii

6 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the Barnett versus Obama case. "Plaintiffs asserted me

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." than that, Your Honor. THE COURT: Okay. I can't represent anything further

Mr. King, do you know whether or not Congress has the exclusive jurisdiction to determine the President's fitness or qualification to serve as president? MR. KING: Your Honor, I do not, and we In fact this

are not seeking to remove the President.

case does not involve a challenge to the President's eligibility at all. In fact the first two of our three

causes of action are totally irrelevant to his status as president. of John Doe. My client was concerned when the White House published what is obviously to experts is a forged document, and that is what we are seeking is to determine what that document is and how it was forged. And, again, how it was forged is really not relevant. It's just a question: Is that document a true copy of And They could equally involve the birth records

records possessed by the Department of Health?

Official Court Reporter First Circuit Court State of Hawaii

7 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. No -THE COURT: MR. KING: THE COURT: MR. KING: THE COURT: What is the direct --- it's a -- it's a concern. Excuse me. Yes. What is the direct and that the -MR. KING: Not idle curiosity, Your that's the grounds for our case entirely. THE COURT: So it's just curiosity? Is

tangible interest of your client? MR. KING: As a citizen in having seen

what he believes to be a fraudulent document to establish the eligibility of the President. THE COURT: MR. KING: THE COURT: MR. KING: To what -He has no power to remove it. To what end? To what end? To the end that

it suggests government malfeasance at some level. Hopefully not within the government of Hawaii, but somebody involved in government has obviously produced a forged document, and I think any citizen has an interest in that issue. I've spent my entire career, Your Honor, opposing government and the misdoings of its various

Official Court Reporter First Circuit Court State of Hawaii

8 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of Evidence. agencies, and in this case that's what Mr. Wolf asked me to do is to investigate that issue. THE COURT: You have case law that says

your client's interest is a direct and tangible interest within the meaning of the statute? MR. KING: I think any citizen has a

direct and tangible interest in the activities of government. Case? I have not cited one, no. But we

don't believe that the direct and tangible interest is required under the provisions that we are utilizing. That direct and tangible interest comes in the recitation in the statute of those persons who are specifically named. We are not one of those named

people, never claimed that we are. THE COURT: Okay. Let's go to the Rules

Why would Rule 502 of the Hawaii Rules of

Evidence provide a basis for maintaining this action? MR. KING: We think not a basis for

maintaining it but Rule 502 applies because it deals with -- and I will turn to it -- required reports privileged by statute. And the documents involved in

here -- the records involved here are such reports. They all, you know, Rule 502, the following rules, they fall under Rule 501 which states that these privileges are, you know, only as provided by law, and it provides

Official Court Reporter First Circuit Court State of Hawaii

9 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 all, 502. motion. exemptions or exceptions to them again. The overriding

principle of the Hawaii law is openness of all government records. There are exceptions to that, and

then in turn are exceptions to those exceptions as we have cited, false statements, not fraud, as the government keeps repeating, possibly fraud, but we don't have to prove fraud. All we have to prove is that these

statements in that record are false. THE COURT: Now, you haven't practiced

before me, so I'll tell you that when I ask a specific question I usually prefer a specific answer. Now, I saw at least two bases for opposing this One was based on Rule 502 of the Hawaii Rules We'll get to 511.

of Evidence, the other was Rule 511. MR. KING: THE COURT: Uh-huh.

But I'm curious, first of

So it doesn't really help you to talk about It helps you to talk about

everything under the sun. Rule 502. case -MR. KING: THE COURT: MR. KING:

So tell me why Rule 502 applies in this

All right. -- to defeat this motion. As we see from, you know, the

recitation in 502 and the commentary -THE COURT: Well, why don't you tell me

Official Court Reporter First Circuit Court State of Hawaii

10 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 beginning: proceeding. who 502 applies to. MR. KING: 502 applies to any -- any

In fact if you read Rule 1101 you'll see

that the government is arguing that 502 and 511 don't apply here, but Rule 1101 provides that these rules are applicable to, A, the courts and we're in court. THE COURT: Okay. Let -- I think I was Look at the language

-- I asked an unartful question.

of Rule 502, and who does it apply to? MR. KING: You mean the recitation at the

Persons, corporations and so forth or other

organizations or entities, either public or private making a return or report. THE COURT: MR. KING: Okay. However, the case is in

addition to those making the return or report obviously include reports that involve a person who did not himself make the return or report but about whom that return or report was -- was made or filed. THE COURT: MR. KING: What case is that? Excuse me. When I say

"cases," it's the records rather than specific cases would indicate that. Records and the ones recited in

the second paragraph of the commentary, you know, records relating to the Department of Social Services

Official Court Reporter First Circuit Court State of Hawaii

11 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and Housing. Obviously those records are about a person Same thing So these

not filed by that person necessarily.

accident reports, cancer records and so forth.

are records about a person but not say the subject of or the owner, if you will, of those records, not the person who actually produces the record, necessarily; or in this case the record was produced by someone else but on behalf of the child born. Child obviously can't create

the record, but the record was created on his behalf. THE COURT: So what authority do you

have, case law or otherwise, to suggest that the child on a birth record has a privilege recognized under evidence rules? MR. KING: I think certainly in this I

jurisdiction that is a case of novel impression. don't think that there is a case.

One has to do it by

logical analysis, if you will, of other cases decided, other types of records. THE COURT: You know, we have a lot of

privacy laws and HIPAA is one that comes to mind, obviously. Family Court has privacy records. So those

may create certain privacy interest, but what we're looking at here is a privilege. privilege under 502? MR. KING: Well, the privilege is held by So who holds the

Official Court Reporter First Circuit Court State of Hawaii

12 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the individual, the owner of the record, if you will, the subject of the record. The documents are maintained

by the Department of Health, but their interest is, as we have pointed out in our -- in our briefing in the commentary, on behalf of the record owner or subject not on their own behalf. THE COURT: You're saying that the

Department of Health has no interest in maintaining the confidentiality of these records? MR. KING: obligation to do so. THE COURT: MR. KING: Yes. But the -- that obligation, Again, that No, they have a statutory

that interest is not on their own behalf.

would be contrary to the whole purpose of the statutory scheme which is openness of records. It's to protect

the interest of the subject or owner of that record not that they have no interest themselves in it. As I say,

the fact that after 75 years, that's an open record. You know, this isn't a secrecy statute. statute. It's a privacy

So there is no reason that the Department of In fact they

Health should not release those records.

do all the time to interested parties and the owner, you know. Again, there are other provisions in the, you

know, in the privacy acts that allow the person who is

Official Court Reporter First Circuit Court State of Hawaii

13 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 waiver here. the subject of that record to release it. THE COURT: MR. KING: Right. There are other cases where

everybody named in the record, if they agree, it can be released. So there, obviously, is no interest in the

Department of Health in maintaining secrecy of that as long as the subjects have consented. THE COURT: MR. KING: THE COURT: MR. KING: Right. Or in this case waived. Well -And there's been a common law There's

There's nothing left to preserve.

no privacy interest. THE COURT: But except your client is not

one of those recognized within a right to those -- these records? MR. KING: THE COURT: MR. KING: No, he doesn't. By statute. No, he's not and we never What we've said

contended that he does or is, rather.

is when the owner of that record waives, he waives this to the entire world. THE COURT: Okay, why don't you tell me

where does it say Barack Obama has a privilege under 502? Tell me what language confers a privilege on -- on

Official Court Reporter First Circuit Court State of Hawaii

14 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 502. THE COURT: Has it been modified? I don't see that language. Barack Obama to waive. MR. KING: Well, I think I have said it

that while he is not the one making the return or report, the return or report was made on his behalf. THE COURT: Who has the 502 privilege?

Look at the language and tell me who has the 502 privilege? MR. KING: Well, again, that says, "a

person, corporation or other organization or entity, either public or private making a return or repot required by law to be made has a privilege to refuse." Now, again -THE COURT: MR. KING: THE COURT: reading that language? MR. KING: From the official text of Rule What language? -- the person -- huh? Where are -- where are you

Are you reading an amended rule? I've got the third edition. I'm sorry. I pulled this I

MR. KING: No, I'm not -- excuse me.

copy from the office -- from Mr. Carroll's office. believe that was current in our brief. the -- off the court's website, so.

I took it off

Official Court Reporter First Circuit Court State of Hawaii

15 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. MR. KING: THE COURT: the whole rule. Uh-huh. I'm not asking you to read THE COURT: You said that the holder of

the privilege is the person, corporation, association or other organization or entity has the privilege, and I don't read that language in there. So can you read the

exact language that says who holds the privilege? MR. KING: All right, Rule 502 -- and,

again, this is as I transcribed it from the -THE COURT: MR. KING: THE COURT: Okay. Sorry. -- I asked a specific Now, again --

I want you to read the language, the

specific language regarding who owns the privilege under Rule 502. MR. KING: which is as I read it. Again, that first sentence "Rule 502 required reports

privileged by statute," and that's -- this is the body of the -- of the rule as I obtained it from Hawaii's website. And, again, it's who holds it; a person, Now, that was I

corporation and association, et cetera. the language as I read it.

I'm sorry, Your Honor.

don't see where we disagree as to whether that is the language of the rule or where we're at odds on how that

Official Court Reporter First Circuit Court State of Hawaii

16 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a privilege? applies to which party. THE COURT: So -- and you agree that

President Obama is not among those listed? MR. KING: THE COURT: Not specifically named, no. Okay. Then you think this

court should interpret the rule as extending a privilege to the President as the subject of this report? MR. KING: Yes, the President or anyone Again, a lot of

else as the subject of the report.

these reports are not prepared by the person who is the subject of the information, but they are prepared and filed by someone else on their behalf or regarding it. Now -- I mean, the rule does also -- it goes on to say that the public officer or agency has a similar privilege. But in looking at the commentary that

privilege is on behalf of the party, not on the agency's own behalf. That's the -- that's the first paragraph of

the commentary to Rule 502. THE COURT: So at least two parties have

The President, you claim has a privilege? MR. KING: THE COURT: Uh-huh. And the defendant Ms. Fuddy

for the Department has a privilege? MR. KING: THE COURT: Yes, Your Honor. Can President Obama waive Ms.

Official Court Reporter First Circuit Court State of Hawaii

17 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 her. online, yes. THE COURT: MR. KING: THE COURT: Yes. Yes. Now, what about the defendant Okay. document? MR. KING: document, Your Honor? THE COURT: MR. KING: The birth certificate? Oh, the one that was published That document? Which privilege? MR. KING: THE COURT: MR. KING: THE COURT: His own, that's correct. And he's done that, yes? Yes. And your client has that no. THE COURT: So he can waive his own Fuddy's privilege? MR. KING: He can't waive Ms. Fuddy's,

Ms. Fuddy's privilege under Rule 502? MR. KING: Again, that does not relate to

And once the owner of the privilege or the primary

privilege, however we wish to characterize it, once the owner of the record has waived the privilege, then the Department of Health has no further privilege to protect. It's gone.

Official Court Reporter First Circuit Court State of Hawaii

18 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Rule 502. MS. NAGAMINE: As to Rule 502 -- first of THE COURT: MR. KING: Okay. All that information has been

-- and I believe the words of the statute are disclosed and that is what's happened in this case. In that

disclosure, there's no residual privilege under the Department of Health. I mean, again, there's nothing to

be disclosed, no information that hasn't been disclosed, so it's gone. THE COURT: Okay. Ms. Nagamine, as to

all, Your Honor, this -- I would argue that there is not a privilege for this document. There's a statutory

mandate that the Department of Health maintained this document and only give access to this document to those people with a direct and tangible interest. In fact

only a copy of the facts contain -- the data contained in the document to those with a direct and tangible interest. The original record maintained in the vault

is not something that is even given to the President. So what was given to the President and was surrounded by press releases and letters and everything has been published online everywhere, that was a copy which was certified by the state registrar Alvin Onaka, witnessed by the Director Fuddy. All of this is stated

Official Court Reporter First Circuit Court State of Hawaii

19 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 all. in Director Fuddy's letter to the President, and all of this is a public record because the President made it public. The correspondence that took place regarding

the -- how the President received a long form or a vault copy of his document. So what the President has and what Director Fuddy -- Director Fuddy is still in charge of those original documents and still has the law 338-18 that mandates her to protect the confidentiality of that record except for people who have a direct and tangible interest. And I should be careful when I use the word "record" because I'm really sometimes talking about data. The director has the duty to protect the data

except to those who have a direct and tangible interest. And so 502 doesn't apply to the President at But even if it did, even if it did, what -- and

even if he waived something, he might have been waiving some right for somebody to see that copy that the director and the registrar certified for him. But

nobody has waived anything as to the original copy that is maintained in the vault at the Department of Health. So, first of all, Your Honor, I would say 502 doesn't apply to this at all. But if it did the holder

of the privilege, if there was a privilege, would not be

Official Court Reporter First Circuit Court State of Hawaii

20 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the President as to this vault copy that is being sought. Director Fuddy is the one who -- and the

registrar are the ones who are charged with maintaining that record and its confidentiality. THE COURT: Well, when you say "its

confidentiality," isn't the cat out of the bag when the President disclosed it online? about it? MS. NAGAMINE: as to the data. THE COURT: What -But -The cat is out of the bag So what's confidential

MS. NAGAMINE: THE COURT:

What do you mean by "data" as

compared to the information contained in the certificate of live birth? MS. NAGAMINE: THE COURT: It's the same.

Okay. It's the same.

MS. NAGAMINE: THE COURT:

So isn't the data or the

certificate -- isn't it published online by the President? And, if so, doesn't that destroy the

confidential nature of the data? MS. NAGAMINE: It's arguable but not in

terms of what the Department has to keep confidential. And keep in mind, Your Honor, we're talking

Official Court Reporter First Circuit Court State of Hawaii

21 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about an original copy. Plaintiff, through their

underlying Uniform Information Practices Act request, their 92F request, asked for access to the original copy in the vault of the Department of Health, and that was denied them. And that was actually denied based on

338-18, which is the law that mandates the Department to not disclose this, except to those with a direct and tangible interest. But the underlying claim here, I don't believe plaintiffs are seeking another copy of the data. I

don't think they're seeking another certified copy to which they are not entitled. I think they are seeking

access to that original underlying document that was Xeroxed and certified and given to the President, and they're claiming somehow that that thing that the President has published is somehow a forgery. THE COURT: I think they're claiming that

someone on the government's part forged the document. That's what I gathered from Mr. King's remarks earlier. MS. NAGAMINE: If -- if that is their

claim, they have given nothing to suggest that Alvin Onaka, the state registrar, or Loretta Fuddy, the Director of Health, did anything on their end when they were Xeroxing and certifying that document. been no claims about that. There have

No, there -- I have heard

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22 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 nothing that suggest that the Department of Health has been dishonest. THE COURT: Okay. Well, what -- as I

understood the comments of Mr. King, initially, is it's not the concern that President Obama altered it. concern is that the government itself altered it. That's what I understand his client's concern to be. MS. NAGAMINE: In wading through the His

exhibits provided in the errata which, by the way, we did ask the courts to strike those because I don't believe they were submitted properly. But in wading

through those anyway the examination of -- of the document was the examination of the document that was found online. So this is kind of a copy of a copy.

There was a certified copy of the original made for the President. So the President has that piece of paper.

And then -- then it was out of the Department of Health's hands. wants with it. He can do whatever he want with it -And he, apparently, had that copied in

some manner, I'm guessing, on a PDF scan, but I have no idea how he copied that to make it come out visible on the Internet, on his link, but he somehow did that. And

the evaluation of that PDF copy is what we're seeing in these exhibits. So I don't think we represented with anything

Official Court Reporter First Circuit Court State of Hawaii

23 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case? MS. NAGAMINE: Because what -- what the that suggest that the underlying document was a forgery. I think what we're saying is a request to see that underlying document to determine if in fact this copied document is a forgery, and there's -- there is no basis. In fact in law from Chapter 338, when the Department certifies its copies, 338-14 -- 1445, the certification of copies, it is certifying the underlying data is held by the Department of Health, and it is certifying the facts of the case -- the facts of the data that those facts are -- are facts. I'm not sure I've answered Your Honor's question, but I really -- I didn't see anything presented by the plaintiffs that is suggesting that what is held in the vault is a forgery only that those things that were copied by the President are a forgery of what they think might be in the vault, but nobody's seen what's in the vault -- I mean, well, the plaintiff hasn't seen what's in the vault. THE COURT: Why doesn't 502 apply to this

President -- first of all, there's nobody -- let me read from 502: "A person, corporation, association or other organization or entity, either public or private,

Official Court Reporter First Circuit Court State of Hawaii

24 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 yes. making a return or report required by law to be made has a privilege to refuse to disclose and to prevent any other person from disclosing the return or report if the law requiring it to be made so provides." As far as I can tell, Your Honor, the best example of what this does apply to is something like tax returns. be made. THE COURT: birth required to be made? MS. NAGAMINE: Yes. Under Chapter 338, Isn't a certificate of live Those are reports that are required by law to

The physicians at the hospital or the attending

midwife or physician or whoever knows the facts of the birth is required to make a report and give that information to the Department of Health. But that would

then -- if we take that reading of it -- which actually I think is fair to do. If we take that reading of it,

then Kapiolani Hospital would be the person or Dr. Sinclair would have been the person required to make that report, and then they would have a privilege, I believe, to tell plaintiffs, "I don't have to tell you what's in this report that I had to make." not talking about those things. report has been made. But we're

We are talking -- this

It's now held and protected by And the Department of Health

the Department of Health.

Official Court Reporter First Circuit Court State of Hawaii

25 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 then follows Chapter 338 which requires that it maintain and protect and only give access to the data to people with a direct and tangible interest. And we don't

actually have any provision whatsoever for anyone to go in and see the original records. In fact in 1961 there were original records made, but nowadays there's no piece of paper. done electronically. It's all

I believe 1993 or something is Same for death registration. So the information, the So if somebody wants to

when that all occurred.

It's all done electronically. data, is housed in a computer.

see that there's a whole computer with a whole slew of information much of which is not -- wouldn't be something that even the registrant, the person named in the birth certificate, would even be entitled to see, but public health statistics. Those types of things.

But anyway I'm getting a little far afield here. I just wanna say that in 1961, when the President was born, it would have been Kapiolani Hospital or Dr. Sinclair, one of those. I don't know

who; would have given this document to the Department of Health. document. The Department of Health has the data on that That data is what is protected. And the Nobody

original document really doesn't come into play. sees the original document. It's not given out.

Official Court Reporter First Circuit Court State of Hawaii

26 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 If Your Honor followed any of the links -- I'm not sure. I think plaintiff may have put a link in

their document to the President's website, and on the President's website he has his letter of request through his attorney Judy Corley to the Department of Health asking, "is there something that I can do to get the long form vault copy of my certificate because there's been a lot of questions and concerns, and I would like to end them." So the Department of Health, Director The long

Fuddy then figured out a way to give him that.

form is not what is routinely provided to people now who get their birth documents. given. The abstract is what's

But Director Fuddy made an exception because it

was the President and because she herself wanted all of the request to stop. The Department of Health has been getting volumes of request to see the President's -- to verify the President's birth in Hawaii despite what's already been published. And so the Director sent, along with He --

the certified copies, that she did provide him.

the President purchased two copies, and along with those copies the Director sent him a letter telling him the process that she had used to copy what was in the vault. THE COURT: Well, you're not helping me

with understanding whether or not 502 applies in this

Official Court Reporter First Circuit Court State of Hawaii

27 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case. MS. NAGAMINE: Well, I would say it

doesn't, Your Honor, because the person who was required to make that report might have had a privilege under this and that would be either Kapiolani Hospital or Dr. Sinclair. But this doesn't apply to the Department of I would say the -- this What we

Health or the plaintiff.

evidence rule does not apply to the situation. have to look at solely is 338-18. THE COURT:

Let's say that there is a --

a Child Protective Service situation and there's an abuse of a child, and the Child Protective Services called the police department. comes, does an investigation. unfortunately the child dies. So the police department And let's say So police department

prepares a report, submits it, and then years later the CPS is sued by the family of the child. CPS now wants

to get a copy of that report, and, of course, in that report it documents what CPS did or didn't do in the investigation by the police department. Are you saying

that if the police department didn't want to release that, that CPS could not get that document? MS. NAGAMINE: CPS could get that. There are two ways that

One, and I wish I could remember I

the statute, I believe it might be HRS 346-14.6.

Official Court Reporter First Circuit Court State of Hawaii

28 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 really could be wrong about that. But there's a

specific statute carve out exception that allows for CWS investigations, people doing those investigations to obtain vital records, specifically investigators for CWS to obtain vital record information. apologize. So -- and I I

I may not have cited the exact statute.

know it's in Chapter 346 and that's a carve out. There's a second way if it doesn't fit that. second way comes with 338-18(b)(9). And the

One of the list of

direct and tangible interest is a court order where the court determines that there is a need to have the record -- there's a direct and tangible interest for whatever is presented to the court, and the court makes the determination that there is a direct and tangible interest. So I believe those would be two ways for

someone to get that child's birth or death report. THE COURT: So if this court were to

issue an order -- denies this motion and issues an order, then Director Fuddy will turn the documents over to the plaintiff? MS. NAGAMINE: words carefully, Your Honor. I'm going to choose my I -- if such an order

would probably go above my head but normally, yes. Normally yes. We get orders for vital records pursuant Yes, we do, and we honor

to 338--18(b)(9) routinely.

Official Court Reporter First Circuit Court State of Hawaii

29 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 today. MS. NAGAMINE: Every day, Your Honor. Honor. THE COURT: You're not just a deputy. them. THE COURT: above your head? MS. NAGAMINE: I would probably have to What do you mean it goes

go back to my office and say, "Judge Chang made this kind of order, does anybody in the AG's Office have something to say about that?" THE COURT: Oh. I'm just a deputy, Your

MS. NAGAMINE:

You're lead counsel on this case. MS. NAGAMINE: -- we share it. Well, Ms. Quinn and I are

I'm -- I am the attorney for vital So we're --

records and Ms. Quinn does our litigation. we're sharing that, actually. THE COURT: Okay.

You're lead counsel

Your Honor, may I interject something at this point? THE COURT: You may. If the court is thinking

MS. NAGAMINE:

of making such an order -- and I hope the court is not -- but if the court is, I would suggest to the court that it will solve nothing.

Official Court Reporter First Circuit Court State of Hawaii

30 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 then. THE COURT: I look at 502, and would you THE COURT: ahead of yourself. MS. NAGAMINE: THE COURT: Okay, well -Well, you're getting way

This is a motion to dismiss. Well, okay. So that -- whether or

MS. NAGAMINE: THE COURT:

Okay.

not I issue an order is not part of this proceeding. MS. NAGAMINE: THE COURT: Okay. Okay.

Not today. I'll hold off on that

MS. NAGAMINE:

agree that it creates two classes of persons who have privileges under 502? The first sentence creates a set

of privileges for those submitting the report, and the second sentence creates a privilege to your client with respect to that report or certificate. MS. NAGAMINE: I think the operative

words in that second sentence would be if the law requiring to be made so provides. So that would be the

law in 338 that requires the return of the information of the birth information if that law that requires that also, to follow this language, would -- would require some sort of disclosure of the record, if I'm reading this properly and understanding your question properly.

Official Court Reporter First Circuit Court State of Hawaii

31 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So -- and I don't believe we have that here. So while,

yes, there might be a second prong to this privilege here, I think we go back to 338-18 to govern what gets disclosed by the Department of Health. THE COURT: Doesn't that second part of

the sentence you referred to refer to whether or not the law requiring the report creates a privilege? MS. NAGAMINE: how I would read this. THE COURT: privilege not to disclose? MS. NAGAMINE: The -- see I'm really And does Chapter 338 create a I think it does. That's

reluctant to use the word "privilege" because I just don't see it as a privilege here. That's kind of a term

of art used in the evidence code, and this is more of a statutory mandate. But, yes, to answer your question,

Chapter 338 requires that information come into the Department of Health and also mandates how the Department of Health treats that information. THE COURT: Okay. So that is all contained

MS. NAGAMINE: within Chapter 338. THE COURT:

Okay.

Let's ask Mr. King.

Do you agree that we have to look to Chapter 338 to see whether Chapter 338 creates a privilege on behalf of

Official Court Reporter First Circuit Court State of Hawaii

32 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 anyone? MR. KING: Your Honor, I would say yes

and let's, if we may, work through the language of Chapter 338. It's a chapter section, I believe.

Section 338-18 paren A provides for nondisclosure of, quote, "vital statistics records," closed quote. The commentary to Rule 502 includes

under, quote, "privilege provisions," closed quote. Those found in statutes dealing with, quote, "vital statistics," closed quote. So the records that we're

talking about, the vital statistics in issue, are privileged provisions provided under the law and recognized by the integration or, if you will, consideration of the whole statutory scheme. And

although not specifically citing Section 338, if you look at the commentary and the commentary's discussion in the second paragraph of the commentary of the characteristics of such privileged provisions you see those found in statutes dealing with social services, again, the vital statistics, health and motor vehicle safety, et cetera. And they go on to cite examples.

Now, those examples are not exhausted, but they do include others very similar to the one in question here. And, again, by the very nature of these records, the privilege is not that of the person who prepares the

Official Court Reporter First Circuit Court State of Hawaii

33 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 record or generates it, if you will. about mental health records. You're talking

You're talking about the

tumor registry that's obviously got very sensitive medical information about patients, you know. I'm sure

the hospital who does the tumor research and keeps these records is not particularly concerned on their own behalf about any privilege or any privacy in these records, but they're protecting the privacy of their patients, and there are a number of these. Again, 338

isn't specifically mentioned, but you've got 287, 324, 334, 336. These are all statutory provisions governing

operations that involve sensitive personal information. And, again, this is Rule 502 integrated with 338 applies. You know, the people who drafted the evidence

code and as you probably well know the evidence code in regard to privilege was very difficult to deal with, both on the federal level and amongst the state. amounted to somewhat of a compromise. So it

But the purpose

of that code is consistent with the purpose of the information statute within Hawaii. THE COURT: You're familiar with the

statutory construction principle that the specific governs over the general? MR. KING: THE COURT: Yes, Your Honor. Would you say that Rule 502

Official Court Reporter First Circuit Court State of Hawaii

34 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is a general proposition of law and Chapter 338 is a specific one when it comes to certificates of live birth? MR. KING: Yes, but I think it's -- in

this case it would be mistake to treat one as opposed to the other. I think you have to integrate the both of You have to Yes, 338

them and say you cannot look alone at 338.

look at the -- at the whole statutory scheme.

is more specific than 502 but so are all the other provisions that were cited there -- 334, 336. These are

all specific in themselves, but yet the rules say 502 covers these provisions. Even though they're more

specific, you don't say, "Well, that just means those provisions stand on their own." You have to interpret

them as being encompassed in the whole statutory scheme. THE COURT: Ms. Nagamine, you have any

response to Mr. King's last remark? MS. NAGAMINE: I'm not certain that I

actually followed Mr. King's argument, but I did catch one sentence that he said that you can't look alone at 338. You have to look alone at 338 because that very

specific statute is what guides how we have to treat the vital records. Now, we look at the other things like, We look there for the open

for example, chapter 92F.

records exceptions, and we find out that 92F presumes

Official Court Reporter First Circuit Court State of Hawaii

35 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that government records should be transparent except for those that have a law saying they shouldn't. that law in this case is 338-18. And so

So that transparency

of open records can't apply because there is this reason in 338 that the legislature determined that these records are so personal and private that they should not be exposed to everybody, unless they've got some business seeing them. So that's my only comment as to

how Mr. King was correlating the two chapters and saying that you can't look at one alone, but I think you have to look at one alone. THE COURT: Well, if -- there are two It's

sentences in 502, the first and the second.

contended by the plaintiff that President Obama is one of the individuals who has the privilege in the first sentence. Now, let's assume that for the sake of the

next question that the President is a holder of the privilege in the first sentence, and that when he published his birth certificate online he waived his privacy or confidentiality as to his birth certificate, would you say that his waiver of his privilege in sentence one constitutes a waiver of the privilege in sentence two? And if not, why not? MS. NAGAMINE: You've kind of thrown a

double hypothetical at me, Your Honor.

Official Court Reporter First Circuit Court State of Hawaii

36 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: No, I'm asking, if Obama --

if President Obama waived the privilege, is it waived as to the second privilege, which I think applies to your client as well? MS. NAGAMINE: it is he'd be waiving. See, we have to ask what

He is the owner of a certified So to the extent that

copy of an original record.

there's any privilege that applies to him it's to what he holds. So maybe -- let's -- okay, let's assume that

he holds a privilege as to "the record," I would maintain that "the record" is the one that he has his certified copy. And separating that out from the second

sentence -- and I'm doing my best here, Your Honor -the second sentence talking about the public officer or agency, if that's Director Fuddy who -- who has a duty to not disclose because there's -- well, I'm trying to tie in Chapter 338 as we've discussed a few minutes ago. I still think under 338, even though that is the statute that requires the information and data come in, it also requires that the data be protected in a certain way. And I would maintain that sentence one, if President Obama has a privilege, it is only to his document. if Director Fuddy has a privilege, it is to what she holds, that original in the vault. I'm hoping that addresses -- I mean, that's how And

Official Court Reporter First Circuit Court State of Hawaii

37 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I would interpret these two sentences. But keep in mind

I'm having a very difficult time filling -- fitting this interpretation into this because I'm so persuaded that there is not a privilege here, at least not regarding the original vital record in the original data. So to

the extent that there's a privilege at all, it's -- may be held by the President as to that certified copy of the document that he owns. THE COURT: Okay. Mr. King, any response

to Ms. Nagamine's last remark? MR. KING: Yes, Your Honor. And it may

not be specifically what you're looking for here, but it's something that she did say, the copy of the original record in the files, if you parse the language carefully of the statements that were released by the various parties in Hawaii and elsewhere, you will not find anywhere a recitation that we went to the vault, retrieved the original document, made copies thereof, gave them to the President's lawyer or the statements from the President's lawyer that I then carried those copies to the White House and those were what was released by the White House. And I'm sorry if Your

Honor understood me to say it was the government of Hawaii I'm pointing the finger at in this case. not. I'm

It's obvious from what was released by the White

Official Court Reporter First Circuit Court State of Hawaii

38 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 House that there has been, at some stage, a forgery regarding this document. THE COURT: Again, it could've -When you say it's obvious, on

what basis do you say it's obvious that the final document that released was forged by the White House? MR. KING: Expert opinions, Your Honor,

that have not, as of yet, been challenged. THE COURT: MR. KING: I see. And those have been submitted

to the court, and I have consulted with those exports -experts, rather, and I am convinced from what they have told me, from what they have demonstrated to me that that document as released is not a true copy of a paper original maintained anywhere. It is a construct.

And, again, so you got three people or three, if you will, groups of parties. government officials. Obama. You've got Hawaii

You've got lawyer for President Could have happened

You've got the White House.

at any stage in that process.

But for, again, from what

I'm told by the experts, that document that was released was an electronic document. It was not something that So that the finger

was transmitted in paper form.

unfortunately, I think, points to the White House, unless contrary to the recitation of the parties and the President's lawyer that I carried paper copies, she

Official Court Reporter First Circuit Court State of Hawaii

39 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 does. THE COURT: MR. KING: Okay. I mean, the record is only -carried an electronic, you know, a thumb drive or something in which she brought that document. But,

obviously, at some point that document as released by the White House was forged. THE COURT: MR. KING: Okay. And I think I've -- have I

answered your question, Your Honor? THE COURT: MR. KING: THE COURT: Yes. I digressed a bit. Yes. No, not really, but I,

basically, was asking does the waiver of the first sentence constitute the waiver of the privilege in the second sentence? MR. KING: Yes, Your Honor, I believe it

it's the waiver, whether under common law or Hawaii statutory law is for the owner or interested party in the record to give. And once they have waived it there

is no inherent right by Hawaii to possess the original document that was produced by someone else in the first place. You know, they didn't produce that. The

hospital produced that. THE COURT:

They're just a custodian. Okay. All right. For the

Official Court Reporter First Circuit Court State of Hawaii

40 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 movant, any final remarks? You don't have to, but I'm

giving you an opportunity because I don't want you to say, "Oh, the judge limited my argument by asking all these questions." wrote. So you don't have to repeat what you

I read everything. MS. NAGAMINE: Well, I won't repeat what But I think that Mr.

I wrote, Your Honor.

Excuse me.

King just solved this for us.

When he started and he

was suggesting that he's trying to expose government inconsistencies, I don't know if that was his word, I took it that he was suggesting that Hawaii had done something wrong here. But he specifically said right

now he's not pointing his finger at the government in Hawaii; that if something went wrong, it went wrong -he's pointing to the White House, which I think bolsters my argument to the court that if there's a problem with whatever the President -- whatever format the President used to put this scanned PDF copy online, then that problem needs to be solved there. Health has nothing to do with that. So -- and the rest of it, we would submit on our paper work, Your Honor, and ask this court to dismiss this matter. Thank you. THE COURT: MR. KING: Okay. Mr. King. But the Department of

Yes, Your Honor.

Official Court Reporter First Circuit Court State of Hawaii

41 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Your Honor. THE COURT: MR. CARROLL: your patience in this case. THE COURT: Okay. All right. This is Okay. We very much appreciate THE COURT: MR. KING: Open forum. Just briefly. I think that

the best way to determine what was done to create an obvious forgery is for the original document to be examined. The law specifically provides that the court We would suggest -- and this is,

can do that in camera.

again, down the line that this could be done with experts and under suitable controls. getting beyond where we are today. But I think that's I think today we're

just at the point to say I think under the law, under the law of waiver, under the Hawaiian statutory law we clearly have a right to the information requested, and we would ask Your Honor to dismiss the government's motion -- or deny the government's motion. THE COURT: MR. CARROLL: Okay. We have nothing further, Excuse me.

the Defendant's Motion to Dismiss.

And, essentially,

what this boils down to is whether, under any circumstances, the plaintiff can assert a right to obtain the certificate of live birth that is on file

Official Court Reporter First Circuit Court State of Hawaii

42 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 with the defendant relating to the President, President Obama. The defendant contends that under Chapter 338, which is the chapter relating to vital statistics, that only certain individuals are entitled to a copy of the original certificate of birth that the defendant has on file. And there are thirteen categories of individuals

who have the right to obtain a copy of the original document. And the defendant director contends that the

plaintiff is not one of these individuals. The plaintiff on the other hand contends primarily that the Hawaii Rules of Evidence regarding privileged information governed this dispute and that the President's disclosure of his copy of the certificate of live birth that the defendant has on file waives any privilege that the Department or the defendant may have under Chapter 338. So the plaintiff

is asserting that the combination of Rule 511 and Rule 502 of the Hawaii Rules of Evidence, together with the President's disclosure of his copy of the certificate of live birth is sufficient enough to cause a waiver of the protections of the defendant is availing herself of -under Chapter 338. So what this matter boils down to is how to construe Chapter 338 together with Rules 511 and 502 of

Official Court Reporter First Circuit Court State of Hawaii

43 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 511. the Hawaii Rules of Evidence. I'd first like to comment and dispose of Rule Rule 511 is a restrictive provision that provides

for the waiver by disclosure of privileges that are recognized by the Rules of Evidence. And there's a big

debate about whether or not disclosure of certificates of live birth is such a privilege. Then 502 is the rule under which plaintiff contends there is a specific privilege created by Chapter 338 that the President waived when he disclosed his certificate of live birth. But if we look at 502, there are two sentences. The first two sentences create privileges for two classes of people. And I think I need to back up and

say that this court construes the reporting of live births as a statutorily mandated report that must be prepared by appropriate institutions or individuals, none of whom are the baby that was born. In the instant

case, of course, it's the President who is the baby that was born, but either the hospital or the doctor prepared the report or a nurse prepared the report that was actually to become the certificate of live birth of President Obama. So the court does believe that Chapter

338 does establish a requirement that a certificate of live birth be filed with the Department of Health.

Official Court Reporter First Circuit Court State of Hawaii

44 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 502 -- Rule 502 goes on to state that in the first sentence that a person, corporation, association or other organization or entity that is required by law to make a report has the privilege to refuse to disclose and to protect or prevent any other person from disclosing the information of the report if the law requiring it to be made so provides. The second

sentence, instead of directing itself to the individuals who are filing the report is directed to the public officer or agency to whom the report is made and that second sentence also creates a privilege to refuse to disclose if the law requiring it to be made -- requiring the report to be made so provide. So we have in this instance Rule 502 that this court views as creating two classes of individuals that have a privilege. The first class does not include the

baby that is born by specific or general reference, but it's argued by the plaintiff that this court should construe the subject of the report to also have that privilege. But this court is constrained by its reading And when a statute or rule specifies

of the language.

specific individuals that are entitled to claim a privilege, this court reads those rules as being required to be strictly construed. So the court does

not construe Rule 502 in the first sentence to apply to

Official Court Reporter First Circuit Court State of Hawaii

45 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a privilege created and owned by the President. So not

being a holder of the privilege, the President cannot waive that privilege. The court will state that if the President did have a privilege in the first sentence, even if he did have a privilege, he could not waive the privilege that belongs to the Department of Health, which has a privilege that is created in the second sentence. even if -- well, the court first concludes that the President does not have a privilege and cannot waive a privilege to the certificate of live birth on file with the Department of Health. If, in the alternative, the President did have a privilege, he could not waive the privilege that belong -- that is created in the second sentence that belongs to the Department of Health. Only the Department of So

Health could waive the privilege created in the second sentence. If the President waived any privilege in the first sentence, he only waived the privilege to his copy of the certificate of live birth, therefore he cannot waive a privilege that belongs to the Department in the second sentence. Over -- excuse me. In the

alternative, the court subscribes to the general proposition that a statute of general application must

Official Court Reporter First Circuit Court State of Hawaii

46 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 yield to a statute of specific application when the two conflict. In the case at bar, I look at Rules 502 and 511 of the Hawaii Rules of Evidence as statutes or rules of general application. The court views Chapter 338, which

applies specifically to vital statistics as a statute of limited or specific application. And based on the adage

that the specific controls over the general, the court looks to the question of whether or not this action can be maintained based on the accessibility of the plaintiff to the certificate of live birth that is on file with the defendant, and the court believes that Chapter 338 controls over Rules 502 and 511. Now, it's been asserted by the plaintiff that 502 and 511 should be read in conjunction with 330 -Chapter 338. However, we have a conflict -- excuse me.

We may have a conflict if Rule 502 and 511 are construed as the plaintiff urges. So whether or not there is an

actual conflict between the Rules of Evidence and Chapter 338, the Court concludes that Chapter 338 is the specific statute relating to vital records, and therefore it is Chapter 338 rather than rules 502 and 511 that should prevail or govern the plaintiff's rights to access the defendant's original copy of the certificate of live birth.

Official Court Reporter First Circuit Court State of Hawaii

47 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In looking at Chapter 338, particularly subsection 18 regarding disclosure of records, subsection B of 338-18 sets forth thirteen categories of persons or entities who may have a direct and tangible interest by statute to the relevant records. And to

plaintiff's credit, plaintiff candidly admits that plaintiff does not fall within the thirteen categories. And it is incumbent on this court to follow the language of the statute and there is no basis to create an exception or a fourteenth category in this matter. The interest of the plaintiff is to investigate whether or not some fraud has occurred in the creation of the certificate of live birth that was published by the President online. And it is contended that the

plaintiff has expert evidence to show that the certificate of live birth that the President disclosed or published online is actually a product of some manipulation of the original document. And there is no

contention as far as this court understands that the plaintiff intends to unseek the President. So the

question of whether Congress is the exclusive tribunal to raise questions of the President's fitness to serve as president, this court will not address that issue or make any findings or conclusions relating to that issue. But the court's ruling in this case is based exclusively

Official Court Reporter First Circuit Court State of Hawaii

48 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 upon its construction of the provisions of Chapter 338 and construing the provisions of Rules 502 and 511 of the Hawaii Rules of Evidence. And the court

respectfully finds and concludes that Chapter 338-18(b) prohibits the plaintiff from continuing to prosecute this action, and under no circumstances or set of facts can the plaintiff prevail on the plaintiff's prayer to obtain the original certificate of live birth, or to obtain access to the certificate of live birth under these circumstances. So for these and any other good

cause shown in the record, the court will respectfully grant the motion to dismiss. The court will ask counsel for the defense to prepare an appropriate order. Findings and fact and The court will

conclusions of law are not necessary.

elect under Rule 52, not to make findings and fact and conclusions of law. I state these matters for the record so that there is a record of this court's thinking in the event that this matter goes up on appeal. I have not

addressed all of the issues to the level of specificity that I would have this served as a written finding or conclusion of the court, but I did want to give counsel some sense of what this court's thinking was because I'm sure the respective clients will be curious.

Official Court Reporter First Circuit Court State of Hawaii

49 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Your Honor -(Proceedings concluded at 4:20 p.m.) -o0overy much. All right, first of all, for the movant, Ms. Nagamine, any further record to be made or questions? MS. NAGAMINE: One question, Your Honor.

Is the complaint dismissed with prejudice? THE COURT: with prejudice, yes. MS. NAGAMINE: THE COURT: Thank you. Mr. King, any further The complaint is dismissed

Okay.

comment or record to be made? MR. KING: THE COURT: No, Your Honor. Okay. No. Thank you

All right.

Court stands in recess. MR. CARROLL: May it please the court,

Official Court Reporter First Circuit Court State of Hawaii

50 PERMISSION TO COPY DENIED, HRS 606.13, etc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JESSICA AKITA, RPR, CSR #461 Official Court Reporter Dated this 9th of December, 2011. I, JESSICA AKITA, RPR, CSR #461, an Official Court Reporter for the First Circuit Court, State of Hawaii, do hereby certify, only upon placement of my original signature below, that the foregoing pages 1 through 50 comprise a full, true and correct transcription of my stenographic notes taken in the above-entitled cause, to the best of my ability. STATE OF HAWAII CITY AND COUNTY OF HONOLULU ) ) ) )

Official Court Reporter First Circuit Court State of Hawaii

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