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. ) ___________________________________ )

COME NOW Plaintiff Duncan Sunahara, by and through his attorney, Gerald H. 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: resident of the City and County of Honolulu, State of Hawaii. 2. Plaintiff Sunahara is the natural brother of Virginia Sunahara, deceased, who was 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.

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Plaintiff Duncan Sunahara is and was at all times relevant to this Complaint, a

Kurashima, and hereby files this Complaint for declaratory judgment against Defendants

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COMPLAINT 1

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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, Hawaii. 5.

doing business in the City and County of Honolulu, or are governmental agencies of the State of 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 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 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, certificate, . . . (Emphasis added). the department of health shall upon request, furnish to any applicant a certified copy of any severally liable to the Plaintiff. Plaintiff prays for leave to insert the true names, capacities, unknown to the Plaintiff, except that they were the agents, servants, masters, employees,

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not provided either an estimate of the cost to obtain the record or a copy of Virginia Sunaharas original birth certificate.

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The Department of Health not responded to Plaintiff Sunaharas request, and has

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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. 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 FIRST CLAIM (Violation of HRS 338-18, Public Health Statistics Act) 10.

As the natural brother of Virginia Sunahara, with the same parents, Plaintiff

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: ... added). 11. 12. (5) A person having a common ancestor with the registrant. . . (Emphasis 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.

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as though fully set forth herein.

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SECOND CLAIM (Violation of HRS Chapter 92F, Uniform Information Practices Act (UIPA) Plaintiff repeats and realleges the allegations set forth in Paragraphs 1 through 12,

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Duncan Sunahara is entitled to obtain a certified copy of her original Birth Certificate. HRS

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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.

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

any person shall make government records available for inspection and copying during regular business hours; . . . (d) added). 16. Disclosure Required. (b) also disclose: (2) Each agency shall assure reasonable access to facilities for

duplicating records and for making memoranda or abstracts. . . . (Emphasis HRS 92F-12 further provides in relevant part,

Any provision to the contrary notwithstanding, each agency shall Government records which, pursuant to federal law or a

requesting access. (Emphasis added). 17. 18. 19. 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

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Plaintiff.

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

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This Court should order the Department of Health to produce and provide a

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statute of this State, are expressly authorized to be disclosed to the person

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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. violates HRS 338-13.

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

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 91-1 to 4, (HAPA). 26. Health adopted its rule without complying with the statutory rulemaking procedures under HRS 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 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.

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as though fully set forth herein. 29. Plaintiff has a statutory right to bring this action under HRS 92F-15, for the judicial enforcement of the Hawaii UIPA. 5

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FOURTH CLAIM (Relief under HRS 92F-15, Uniform Information Practices Act (UIPA) Plaintiff repeats and realleges the allegations set forth in Paragraphs 1 through 27,

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against any person or party, nor may it be invoked by the agency for any purpose, until it has

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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). 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 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; the copying, duplication or reproduction of the requested records, pursuant to HRS 92F-11(b), (d); c. d. Reasonable attorneys fees and cost pursuant to HRS 92F-15(d); and b. Court permission for Duncan Sunahara and/or his representative to be present at

DATED: Honolulu, Hawaii, _________________________________________.

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Such other legal and equitable relief the Court deems just.

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______________________________________ GERALD H. KURASHIMA Attorney for Plaintiff Duncan Sunahara

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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 Complaint. fail to do so, judgment by default will be taken against you for the relief demanded in the 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.

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DATED: Honolulu, Hawaii, ______________________________________. ___________________________________ Clerk of the Court

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