Hawaii Attorney General Invokes Attorney Client Privilege Concerning DoH “Natural-Born Citizen” Press Release of July 27, 2009.
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On October 5, 2009 I sent the following letter to Jill T. Nagamine at the the office of Hawaii Attorney General Mark Bennett:
Subject: Request for AG Opinion letter
Date: Monday, October 5, 2009 8:34 PM
From:”Leo Donofrio” [email redacted]
To: Jill.T.Nagamine@hawaii.gov
Dear Ms. Nagamine,
The following request for Government records is made pursuant to the UIPA.
I request a copy (or access to a copy) of the Attorney General Opinion Letter the Attorney General provided to Department of Health Director Fukino which reviewed and approved her July 27, 2009 statement/press release about President Barack Obama wherein it was stated that he is a “natural-born American citizen.”
I request the opinion letter referenced above whether it was prepared as a formal Opinion Letter under Haw. Rev. Stat. 28-3 (and/or any other authority) or as an informal letter if prepared under Haw. Rev. Stat. 28-4 (and/or any other authority).
Please have your response conform to the OIP administrative rules.
***
Just a few hours later, I received the following official response from Jill Nagamine:
Subject: Re Request for Ag Opinion letter
From: “Jill.T.Nagamine@hawaii.gov”
To: “Leo Donofrio” [email redacted]
Dear Mr. Donofrio:
No formal attorney general opinion was generated relating to the July 27, 2009 public statement made by Chiyome L. Fukino, M.D. Any other legal advice rendered to our clients is privileged communication. We have nothing to release based on your request.
Very truly yours,
Jill T. Nagamine
Deputy Attorney General
State of Hawaii
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LEGAL ANALYSIS
Whether an attorney general opinion is formal or informal is a question of law. Under Haw. Rev. Stat. 28-3, if the opinion of the Attorney General was related to a question of law submitted to him by the head of an agency, then that opinion must be made available to the public according to the statute which says:
§28-3 Gives opinions. The attorney general shall, when requested, give opinions upon questions of law submitted by the governor, the legislature, or its members, or the head of any department. The attorney general shall file a copy of each opinion with the lieutenant governor, the public archives, the supreme court library, and the legislative reference bureau within three days of the date it is issued. Opinions on file with the lieutenant governor, the public archives, and the supreme court library shall be available for public inspection.
As I have previously discussed, 28-3 requires that formal AG opinion letters be disclosed to the public. It is not a matter of discretion. The statute uses the word “shall”. The Hawaii courts have interpreted the statute as requiring mandatory public disclosure thereto.
Under Haw. Rev. Stat. 28-4, opinions given by the AG on other matters are not expressly required to be made public. But, according to OIP Opinion Letter 91-23, informal opinions must also be recorded and sometimes disclosed to the public when certain conditions are met:
[T]he Attorney General provides two separate and distinct recorded forms of legal advice: (1) “opinions” on questions of law submitted by certain public officers, and (2) “advice and counsel” to public officers in all matters connected to their public duties. Unlike section 28-3, Hawaii Revised Statutes, which expressly requires the public availability of certain specified “opinions,” section 28-4, Hawaii Revised Statutes, does not expressly require that the “advice and counsel” of the Attorney General either be filed with the Lieutenant Governor or be made available for public inspection.
However, according to OIP Opinion Letter 91-23, when the conclusions of an informal Attorney General opinion are made public by the agency/client, then the accompanying record of that opinion must also be disclosed to the public:
A client cannot voluntarily and selectively disclose those portions of a communication between the client and the client’s attorney without forfeiting the right to keep other portions of the communication on the same subject matter privileged…
The privilege may be said to be waived when the client relinquishes its protection. The waiver of this privilege follows as a consequence from any conduct by the client that would make it unfair for the client thereafter to assert the privilege. See generally, Marcus, The Perils of Privilege: Waiver and the Litigator, 84 Mich. L. Rev. 1065 (1986)…
Similarly, under Rule 510 of the Uniform Rules of Evidence, the holder of a privilege waives it if the privilege holder consents to the disclosure of “any significant part of the privileged matter.” (Emphasis added.)
Note that the OIP underlined “consents” in the passage above. This is important because the July 27, 2009 press release – wherein DoH Director Fukino stated that President Obama “was born in Hawaii” and that he is a “natural-born American citizen” - was reviewed and approved by the Hawaii Attorney General’s office. ( DoH Communications Director Janice Okubo previously revealed such reliance to researcher Justin Riggs.)
As stated above, whether an attorney general opinion is formal or informal is a question of law. The Attorney General is governed by law. If the letter is formal under 28-3 then the letter must be disclosed to the public. If the letter is informal under 28-4, then the letter must also be made available to the public when the client/agency voluntarily discloses the conclusions of the advice rendered by counsel.
On July 27, 2009 the DoH disclosed the conclusions of the Attorney General’s opinion. The DoH cannot make secret law. The controlling statutes, case law and OIP opinion letters make it quite clear that the Attorney General opinion rendered to the head of the DoH pertaining to her infamous July 27, 2009 press release must be made available to the public.
I am currently drafting an appeal to the OIP as well as the judiciary. According to the UIPA statute at 92F-15(f), judicial review will be expedited.
Leo C. Donofrio, Citizen Attorney
Leo has them by the short hairs.
GO LEO!!