GERALD H.

KURASHIMA 5071-0 American Savings Bank Tower, Suite 1310 1001 Bishop Street Honolulu, Hawaii 96813 Phone: 545-5120 Attorney for Plaintiff Duncan Sunahara IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII DUNCAN SUNAHARA, ) CIVIL NO.: ) [DECLARATORY JUDGMENT] Plaintiffs, ) vs. ) COMPLAINT; SUMMONS DEPARTMENT OF HEALTH, STATE OF ) ) HAWAII; LORETTA FUDDY, IN HER OFFICIAL CAPACITY AS DIRECTOR OF ) ) THE DEPARTMENT OF HEALTH, ) STATE OF HAWAII; JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS ) ) 1-10; DOE PARTNERSHIPS 1-10; AND DOE GOVERNMENTAL ENTITIES 1-10, ) ) Defendants. ) ___________________________________ ) COMPLAINT COME NOW Plaintiff Duncan Sunahara, by and through his attorney, Gerald H. Kurashima, and hereby files this Complaint for declaratory judgment against Defendants Department of Health, State of Hawaii; Loretta Fuddy, in her official capacity as Director of the Department of Health, State of Hawaii, John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe Partnerships 1-10, and Doe Governmental Entities 1-10, and alleges and avers: 1. 2. Plaintiff Duncan Sunahara is and was at all times relevant to this Complaint, a Plaintiff Sunahara is the natural brother of Virginia Sunahara, deceased, who was resident of the City and County of Honolulu, State of Hawaii. born on August 4, 1961 and died on August 5, 1961. Plaintiff Duncan Sunahara and Virginia Sunaharas natural parents are Tomio Sunahara, deceased and Clara Chung Hee Park.

3.

Pursuant to HRS 26-13, Defendant Department of Health is an agency of the

State of Hawaii. Upon information and belief, Defendant Loretta Fuddy is the Director of the Department of Health for the State of Hawaii.
4.

Defendants John Does 1-10 and Jane Does 1-10, are believed by Plaintiff to have

been at all times mentioned herein, residents of the City and County of Honolulu, State of Hawaii. Defendants Doe Corporations 1-10, Doe Partnerships 1-10, and Doe Governmental Entities 1-10, are believed by Plaintiff to have been at all times mentioned herein, corporations, partnerships or legal entities, duly organized and existing under the laws of the State of Hawaii, doing business in the City and County of Honolulu, or are governmental agencies of the State of Hawaii. 5. Defendants John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe Partnerships 1-10, and Doe Governmental Entities 1-10, are named herein under fictitious names, for the reason that their true names, identities, and specific acts or omissions, are presently unknown to the Plaintiff, except that they were the agents, servants, masters, employees, employers, representatives, co-venturers, associates, vendors, suppliers, manufacturers, subcontractors or contractors of the named Defendants, and who are in some manner, responsible for the injuries or damages to the Plaintiff, whether in contract or in tort, and are jointly and severally liable to the Plaintiff. Plaintiff prays for leave to insert the true names, capacities, activities or responsibilities of the unnamed Defendants when they are ascertained. 6. On or about November 22, 2011, Plaintiff Sunahara requested from the State of Hawaii, Department of Health, an estimate of the cost and expense to obtain a certified copy of the original Certificate of Live Birth (hereafter Birth Certificate) of Virginia Sunahara, deceased, pursuant to Hawaii Revised Statute 338-13(a). The statute states in relevant part, the department of health shall upon request, furnish to any applicant a certified copy of any certificate, . . . (Emphasis added). 7. The Department of Health not responded to Plaintiff Sunaharas request, and has not provided either an estimate of the cost to obtain the record or a copy of Virginia Sunaharas original birth certificate.

8.

The State of Hawaii had previously provided a computer generated abstract of

birth record for Virginia Sunahara, and a statement that this was the only form of the birth certificate to which Plaintiff was entitled. 9. Sunahara. FIRST CLAIM (Violation of HRS 338-18, Public Health Statistics Act) 10. As the natural brother of Virginia Sunahara, with the same parents, Plaintiff Duncan Sunahara is entitled to obtain a certified copy of her original Birth Certificate. HRS 338-18 provides in relevant part, Disclosure of Records. (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 ahs a direct and tangible interest in the record. The following persons shall be considered to have a direct and tangible interest in public health statistics records: ... (5) A person having a common ancestor with the registrant. . . (Emphasis added). 11. 12. As the natural brother of Virginia Sunahara with common parents, Plaintiff is The Court should issue a declaratory judgment in favor of Plaintiff Duncan entitled to a certified copy of the original Birth Certificate of Virginia Sunahara. Sunahara, and order Defendant Loretta Fuddy and the State of Hawaii, Department of Health, provide a certified copy of the original hospital generated paper Certificate of Live Birth of Virginia Sunahara, deceased. SECOND CLAIM (Violation of HRS Chapter 92F, Uniform Information Practices Act (UIPA) 13. Plaintiff repeats and realleges the allegations set forth in Paragraphs 1 through 12, as though fully set forth herein. Pursuant to Hawaii law, Plaintiff Sunahara is entitled to a certified copy of the original hospital generated paper Certificate of Live Birth of his deceased sister, Virginia

14. 15.

As an agency of the State of Hawaii, the Department of Health is subject to the HRS 92F-11 expressly provides in relevant part: Affirmative Agency Disclosure Responsibilities. (a) (b) All government records are open to public inspection unless access Except as provided in section 92F-13, each agency upon request by is restricted or closed by law. any person shall make government records available for inspection and copying during regular business hours; . . . (d) added). Each agency shall assure reasonable access to facilities for duplicating records and for making memoranda or abstracts. . . . (Emphasis

Uniform Information Practices Act (UIPA), HRS Chapter 92F.

16.

HRS 92F-12 further provides in relevant part, Disclosure Required. (b) also disclose: (2) Government records which, pursuant to federal law or a statute of this State, are expressly authorized to be disclosed to the person requesting access. (Emphasis added). Any provision to the contrary notwithstanding, each agency shall

17. 18. 19. Plaintiff. 20.

The Department of Health, as an agency of the State is required to make the Birth Additionally, HRS 92F-12 requires the disclosure of government records, Under Hawaii law, the Department of Health is required to maintain records and

Certificate of Virginal Sunahara available for inspection and copying pursuant to HRS 92F-11. specifically the original Birth Certificate of Virginia Sunahara, based on HRS 338-13. to disclose and provide a certified copy of the original Birth Certificate of Virginia Sunahara to This Court should order the Department of Health to produce and provide a

certified copy of the original Birth Certificate of Virginia Sunahara. THIRD CLAIM (Violation of HRS 91-1 to 4, Hawaii Administrative Procedures Act (HAPA) 4

21. 22.

Plaintiff repeats and realleges the allegations set forth in Paragraphs 1 through 20, Upon information and belief, the Department of Health has implemented a rule

as though fully set forth herein. and procedure to provide only computer generated abstract of birth records, in lieu of a certified copy of the original birth certificate. 23. The Department of Health is an agency of the State of Hawaii and pursuant to HRS 321-10, it is subject to the rule-making requirements of HRS 91-1 to 4, of the Hawaii Administrative Procedures Act (HAPA). 24. 25. Plaintiff contends that the Department of Healths rule and practice is invalid and Plaintiff claims that the Department of Healths rule of providing only an violates HRS 338-13. abstract of birth records and not a certified copy of the original Certificate of Live Birth, affects the private rights and interests of the public. Plaintiff claims that the Department of Health adopted its rule without complying with the statutory rulemaking procedures under HRS 91-1 to 4, (HAPA). 26. The Department of Healths rule of providing only an abstract of birth records is invalid pursuant to HRS 91-2(b), No agency rule, order, or opinion shall be valid or effective against any person or party, nor may it be invoked by the agency for any purpose, until it has been published or made available for public inspection as herein required, . . . 27. The Court should issue a declaratory judgment that the Department of Healths rule is invalid and void pursuant to HRS 91-7(b) which provides that, The court shall declare the rule invalid if it finds that it violates constitutional or statutory provisions, or exceeds the statutory authority of the agency, or was adopted without compliance with statutory rulemaking procedures. FOURTH CLAIM (Relief under HRS 92F-15, Uniform Information Practices Act (UIPA) 28. 29. Plaintiff repeats and realleges the allegations set forth in Paragraphs 1 through 27, Plaintiff has a statutory right to bring this action under HRS 92F-15, for the as though fully set forth herein. judicial enforcement of the Hawaii UIPA. 5

Judicial Enforcement. (a) A person aggrieved by a denial of access to a government record may bring an action against the agency at any time within two years after the agency denial to compel disclosure. (Emphasis added). 30. 31. 92F-15(d). WHEREFORE, Plaintiff Duncan Sunahara prays for declaratory judgment against Defendants Department of Health, State of Hawaii, Loretta Fuddy, in her official capacity as Director of the Department of Health, State of Hawaii, John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe Partnerships 1-10, and Doe Governmental Entities 1-10, for the following relief: a. Declaratory Judgment in favor of Plaintiff Duncan Sunahara compelling Loretta Fuddy, Director of the Department of Health, State of Hawaii, to provide a certified copy of the original paper hospital generated Certificate of Live Birth of Virginia Sunahara, and a certified copy of any microfilm version of Virginia Sunahara maintained by the Department of Health; b. (d); c. d. Reasonable attorneys fees and cost pursuant to HRS 92F-15(d); and Such other legal and equitable relief the Court deems just. Court permission for Duncan Sunahara and/or his representative to be present at the copying, duplication or reproduction of the requested records, pursuant to HRS 92F-11(b), Plaintiff Sunaharas action is timely. In addition, if Plaintiff prevails against the Department of Health, he is entitled to

all reasonable attorneys fees and expenses incurred to prosecute this matter pursuant to HRS

DATED: Honolulu, Hawaii, _________________________________________. ______________________________________ GERALD H. KURASHIMA Attorney for Plaintiff Duncan Sunahara

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII DUNCAN SUNAHARA, ) CIVIL NO.: ) [DECLARATORY JUDGMENT] Plaintiff, ) vs. ) SUMMONS DEPARTMENT OF HEALTH, STATE OF ) ) HAWAII; LORETTA FUDDY, IN HER OFFICIAL CAPACITY AS DIRECTOR OF ) ) THE DEPARTMENT OF HEALTH, ) STATE OF HAWAII; JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS ) ) 1-10; DOE PARTNERSHIPS 1-10; AND DOE GOVERNMENTAL ENTITIES 1-10, ) ) Defendants. ) ___________________________________ ) SUMMONS STATE OF HAWAII To the above-named Defendants: You are hereby summoned and required to file with the Court and serve upon Gerald H. Kurashima, Plaintiffs attorney, whose address is 1001 Bishop Street, Suite 1310, Honolulu, Honolulu, Hawaii 96813, an answer to the Complaint which is herewith served upon you, within twenty (20) days after service of this Summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the Complaint. This Summons shall not be personally delivered between 10:00 p.m. and 6:00 a.m. on premises not open to the general public, unless a judge of the above-entitled court permits in writing, service of this Summons by personal delivery during those hours. DATED: Honolulu, Hawaii, ______________________________________. ___________________________________ Clerk of the Court