The Obama birth certificate controversy continues, with Hawaii Governor Neil Abercrombie starting and then abandoning efforts to release more documentation.  Claims in The Daily Caller and on Drudge that Abercrombie has admitted to a friend that the birth certificate is not on file (contrary to representations by Hawaiian officials) adds just more fuel to a highly charged political fire. [Update: Not surprisingly, the report in The Dailly Caller is disputed.  As I pointed out before, there is no reason to believe that there is some sort of conspiracy by Hawaiian officials.]

Put aside whether Abercrombie should be looking to release documentation.  That is such a hot issue that it is impossible to have a civil discussion about it anymore (my position is here and here).  (Please, no comments regarding the meaning of “natural born citizen” will be put through, anyone who wants to read about that can read the comments to my prior posts.)

But when such stalwart supporters of Obama as Chris Matthews, David Corn and Clarence Page all have joined Gov. Abercrombie in seeking release of the original birth certificate, one wonders why Gov. Abercrombie didn’t take an obvious route.

Gov. Abercromie states that he has abandoned his quest because Hawaiian law only allows release of vital record contents (other than the index information already released) if the person requesting the information has “a direct and tangible interest in the record.”  While some people loosely have said that Obama’s vital records cannot be released without Obama’s permission, that is not true; the records can be released to any of the persons listed in the statute, or with Obama’s permission to persons not listed in the statute.

The law goes on to list the categories of persons who satisfy this standard, and Gov. Abercromie does not appear to fall within any of those categories.  So without Obama’s permission, it is true that Gov. Abercrombie himself cannot obtain or release any more information than already has been released.

But there are people who could obtain such records, namely, anyone who shares a common ancestor with Obama, as provided in the applicable statute:

§338-18  Disclosure of records.

(a) To protect the integrity of vital statistics records, to ensure their proper use, and to ensure the efficient and proper administration of the vital statistics system, it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital statistics records, or to copy or issue a copy of all or part of any such record, except as authorized by this part or by rules adopted by the department of health.

(b) The department shall not permit inspection of public health statistics records, or issue a certified copy of any such record or part thereof, unless it is satisfied that the applicant has a direct and tangible interest in the record. The following persons shall be considered to have a direct and tangible interest in a public health statistics record:

* * * *

(5) A person having a common ancestor with the registrant….”

The Attorney General of Hawaii has issued an interpretation of the statute in question making clear that someone who falls in the categories enumerated in the statute does not have to prove anything else in order to be entitled to the record.  In Re Ms. Blossom Kaonohi, 1990 WL 482371, OIP Opinion Letter No. 90-23 (June 28, 1990):

“Interpreting section 338-18, Hawaii Revised Statutes, consistently with the model legislation upon which it was based and the legislative history of the 1977 amendments to this section, and avoiding a construction which would produce unreasonable results, we conclude that the word ‘and‘ was intended to be used disjunctively. Specifically, we conclude that as long as the DOH is satisfied that the person seeking to inspect and copy a particular vital statistic record stands in the required relationship to the registrant, that person need not also establish that the information is ‘necessary for the determination of personal or property rights.‘”

Under this Opinion, it would be up to the Hawaii Department of Health to determine whether the person requesting the records shared “a common ancestor” with the registrant.

There is no definition in the statute (or anywhere in Hawaiian law, as far as I can tell) of what “common ancestor” means.  The plain meaning would seem to include even distant common ancestors so long as the relationship were provable to a specific ancestor (i.e., that two people may share a common DNA showing that they descended from the same area of the world would not prove that they shared a specific identifiable ancestor.)

So, regardless of the politics, there would seem to be a way for those — such as Gov. Abercrombie — who want to obtain copies of Obama’s “vital record information” to do so:  Find someone who shares a “common ancestor” with Obama and have that person obtain it. 

There appear to be many such people, including a well known blogger, and allegedly some pretty high profile presonalities, such as Dick Cheney, Harry Reid and Ann Coulter, as well as Rush Limbaugh and Sarah Palin

Limbaugh denies a common ancestry with Obama, and I too am skeptical of “10th cousin once removed” claims.  Limbaugh also recognizes that the whole birth certificate issue likely is a giant head fake to make people look bad, for when the birth certificate eventually is produced, it will show Obama to have been born in Hawaii.

Nonetheless, all the teeth gnashing by Gov. Abercrombie about the restrictions of Hawaiian law seems pretty strange considering that there are plenty of people around who share a common ancestor with Obama and could obtain the records for Gov. Abercrombie.

It is unclear how or when this controversy will end.  But I hope it ends soon with Obama being proven beyond a doubt to have been born in Hawaii.  Any other result would be unimaginably bad for our democracy.

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