"Open" State Vital Records: The Bad and the Ugly

One of Several Posts about Open Government Laws and Genealogy

Previously, we spotlighted several states that are particularly "genealogy-friendly" concerning access to state vital records. Now we wade into the swamp of vital records-access horribles.

At the edge of the swamp are states that have unreasonably long (100 years or more for birth records; more than fifty years for death records; or any period for ordinary marriages and divorces) confidentiality periods. These states include:

• Alabama: 125 years for birth records!

• Alaska: 100 years for birth records; fifty years for marriage records

• Arkansas: 100 years for birth records

• Delaware: 100 years for birth records

• Hawaii: 75 years for death and marriage records

• Idaho: 100 years for birth records; 50 years for marriage and divorce records

• Iowa: 75 years for death, marriage and divorce records; even then, records are simply open for inspection and copying; no copies issued by the state except to persons of a certain relationship.

• Louisiana: 100 years for birth records

• Michigan: 100 years for birth records (on the other hand, anyone can have access to Michigan death records).

• New Jersey: 50 years for marriage records

• New Mexico: 100 years for birth records, but not prior to individual's death (but see below).
  

• New York: 50 years for marriage records AND both husband and wife are known to be deceased.

• Oregon: 100 years for birth records

• Rhode Island: 100 years for birth records

• Wyoming: 50 years for marriages and divorces

Vital Records Access Hell

• Georgia: Birth certificates appear to be available only to (1) the person whose record of birth is registered; (2) either parent, guardian, or temporary guardian of the person whose record of birth or death is registered; (3) the living legal spouse or next of kin or the legal representative of the person whose record of birth or death is registered; (4) a court of competent jurisdiction upon its order or subpoena; or (5) any governmental agency, state or federal, provided that such certificate shall be needed for official purposes. This is my reading of Georgia Code section 31-10-26(a) & (e). The law appears to prohibit the issuance of informational or uncertified copies of birth certificates and even abstracts or indices of birth records. If I'm reading this incorrectly, will some Georgia genealogist or lawyer please set me straight.

• Indiana: Birth and death records are closed to the public and may be disclosed only (1) to an applicant having a direct interest in the matter recorded; (2) when the information is necessary for the determination of personal or property rights or for compliance with state or federal law; or (3) in any extraordinary case that the state registrar determines is a direct tangible and legitimate public interest. That's my interpretation of Indiana Code section 16-37-1-10. If I'm reading this incorrectly, will some Indiana genealogist or lawyer please set me straight.
  

• Kansas: One of the worst! "Currently, the Office of Vital Statistics does allow requests for genealogical research. Pre-1940 records may be requested by an individual related as at least a cousin. Post 1940 records must be requested by an immediate family member." Kansas Department of Health and Environment vital statistics website (viewed 3/27/2008)
  

• Mississippi: "Vital Records are not considered public access documents. Certified copies of records in the custody of the Department of Health may be obtained by persons having a legitimate and tangible interest in such records." Mississippi State Department of Health Vital Records Rules and Regulations (viewed 3/27/2008). The statute says:
• Records in the possession of the Mississippi Department of Health, bureau of vital statistics, which would be of no legitimate and tangible interest to a person making a request for access to such records, shall be exempt from the provisions of the Mississippi Public Records Act of 1983; provided, however, nothing in this section shall be construed to prohibit any person with a legitimate and tangible interest in such records from having access thereto. Miss.Code 1972, 41-57-2 (1983).
  

• New Mexico: "New Mexico Vital Records are restricted access records and are only issued to immediate family members or individuals who demonstrate tangible legal interest," so says the New Mexico Department of Health's website. But, that seems to contradict the statute, which says that records may be disclosed 100 years after birth (but not before person's death) and 50 years after death. See N.M.Stat. 24-14-27. So the Land of Enchantment makes the hell list not only for being unreasonable, but for confusing people as well.

• Pennsylvania: Vital records are not open to the public. Eligible requestors are (1) person named on a birth record; (2) legal representative of decedent's estate; (3) immediate family members; (4) extended family members who indicate a direct relationship to the decedent. Pennsylvania Department of Health vital records website (viewed 3/27/2008).
  

• South Carolina: Entitled recipients: (1) the person named on a birth certificate (if eighteen (18) years of age); (2) the parent(s) named on the birth certificate; or the guardian, or a legal representative of one of these persons. On the other hand, any applicant may be provided a statement that a death occurred, including the date and county of death. South Carolina Department of Health and Environmental Control vital records website (viewed 3/27/2008).

There are several states (some listed here, some not) that say that records are open to persons with "a direct and tangible interest," or a "legitimate interest," or words to that effect. Without some mitigating factors, this should be enough to consign a state to Vital Records Access Hell. These phrases frequently have no definition, leaving a requestor to the whims of a vital records clerk. It certainly seems to me that genealogical research is a "legitimate," "direct," or "tangible" interest!

Special Place in Hell for Online Records Sites

This series has not been focused on online records. A state can earn kudos without having online acess to its records. But if a jurisdiction is going to have on-line access, it should be convenient and affordable. Alas, such is not the case with the Caddo Parish (La.) Clerk of Court's office, so they are awarded this year's SPIHFORS. The Caddo clerk's online marriage records search function frequently doesn't work properly. And then there's the matter of fees for the other databases: a $100 "setup" fee and $30.00 a month to view images! Outrageous! Just about fifty miles west of Shreveport, the seat of Caddo Parish, in Gregg County, Texas (much smaller in population than Caddo Parish), the County Clerk provides free online access to some of the same types of documents for which Caddo wants exorbitant fees.

Open State Vital Records: Some of the Best States

One of Several Posts about Open Government Laws and Genealogy

I've made a brief survey of state vital records laws and here present some of the "best" states in terms of "openness." These determinations are based on several factors: whether law provides that vital records are "open" or "public"; whether reasonable "confidential periods" are imposed; whether reasonable fees are required; whether procedures for obtaining records are uncomplicated, and whether in my sole judgment, the state is more user-friendly than not when allowing access to vital records.

A note about some terms used by states to describe their records policies: some states say that they are "open" or "public" records states, while others say they are "closed" records states. Do not put too much emphasis on these self-descriptions. The fact is that states use these terms without much consideration. As a result, some so-called "open" records states may have, in practice, more restrictive access than so-called "closed" records states.

In my view, a confidentiality period longer than fifty years for death records or seventy-five years for birth records is unreasonable. And any confidentiality period for ordinary marriage records is unreasonable.

Now, some of the best states for access to vital records:

• Arizona: supposedly a "closed" records state. Allows public access to non-certified copies of birth records after 75 years, death recotds after 50 years. What else makes Arizona great: the Arizona Dpeartment of Health Services has placed birth and death records online.
  

• Illinois: Uncertified birth records after 1916 available after 75 years; uncertified death records after 20 years. What else make Illinois great: very good website; no images but easy to search.
  

• Missouri: Birth records seem to be highly restricted, but the Show-Me state makes this list because death records are available after fifty years and the Missouri State Archives has a great website of death certificates with PDF versions of the certificates. Jackson County [Kansas City area] has an excellent website with images of marriage licenses.

• Texas: Birth records available to public after 75 years; death records after 25 years. What else makes Texas great: an easy-to-use online order system for vital records.

• Wisconsin: Uncertified copies of birth and death records are available to anyone who applies. Caveat: No birth record is public concerning (1) a child born to unmarried parents when paternity has not been established, or (2) a child born to unmarried parents when paternity was established by court order.

APG Open Records Summary

One of Several Posts about Open Government Laws and Genealogy

The Association of Professional Genealogists position paper on open records contains the following summary:

• No proof that open records significantly contribute to ID theft or terrorism.
• ID thieves rarely use public records, relying instead on stolen or fraudulent data.
• Public benefits of access to records far outweighs their threat.
• Open records allow genealogists and others to do their jobs.

The APG paper recognizes that certified copies of vital records need not be made available to the public, but that non-certified informational copies are sufficient for public purposes.

The APG calls on the private sector and government to do a better job protecting confidential information.

I agree with the the APG paper.

APG Pushes for Open Records

One of Several Posts about Open Government Laws and Genealogy


Coincident with our series of posts about open government records, the Association of Professional Genealogists has released a position paper entitled "The Case for Open Records." Appropriately, it was a project of APG's Sunshine state [Florida] chapter.

Last Friday, APG issued a press release about the position paper, which has also been endorsed by the National Genealogical Society, The Federation of Genealogical Societies, and the International Association of Jewish Genealogical Societies.

I'll have more on the position paper later this week.

Note: Mention of this APG press release and position paper first appeared in DearMyrtle's blog, on Friday, March 21, 2008.

FOIA Spotlight: The U.S. Department of State

One of Several Posts about Open Government Laws and Genealogy

Last week, as we noted, was Sunshine Week, focused on open government, and open records in particular. Although the commemoration has passed, we'll continue in the next few posts to focus on open records. After all, every week should be Sunshine Week!

Our FOIA Spotlight today is on the U.S. Department of State. A common request made by genealogists is for passport records. So I requested the records of my grandmother, Jessie Beatrice Bowie.

The State Department handled the initial phase of the request pretty well. Their FOIA web pages are easy to read and understand. And they have a user-friendly "FOIA Request Generator." Within hours of making the request, the State Department had replied acknowledging the request. That's great for a FOIA office! Then, the FOIA Office called me (at 7:30 am PDT!) to say that their first e-mail was in error and they were sending a second, corrected, e-mail. As far as I could tell, the "error" involved some irrelevant administrative info. But, again, this is platinum class service from a government agency.

So we'll see what happens next!

Some observant readers may be saying, "Didn't he request these same records once before?" Well, sort of. We'll explain later in the week what happened with that request.

Let the Sunshine In!

One of Several Posts about Open Government Laws and Genealogy

Tim Agazio at Genealogy Reviews Online blogs today about his experiences with the Freedom of Information Act (FOIA). That reminded me that this week (March 16-22) is Sunshine Week.

Sunshine Week is a project of the American Society of Newspaper Editors, with many other participants. It is "national initiative to open a dialogue about the importance of open government and freedom of information. Participants include print, broadcast and online news media, civic groups, libraries, non-profits, schools and others interested in the public's right to know." The website also says that "Sunshine Week is a non-partisan initiative whose supporters are conservative, liberal and everything in between."

This should be of some interest to genealogists who need government records to do what we do. In the last few years, we've seen the closure or restriction of formerly public records for various reasons. We should be vigilant about such things.

There are several related issues that need to be "daylighted" with respect to public records and genealogy. First, we need to insist that public agencies follow existing law such as FOIA and similar laws in the states. As a former official of the federal government and of the nation's largest state government, I can tell you that agencies hate open government laws, for a number of reasons.

Second, we must be watchful when legislation or regulations are proposed that would restrict or eliminate access to public records of legitimate genealogical value. The overbreadth of such legislation or regulations often will place us at the sometimes uncomfortable intersection of Liberty and License. It is said that License leads to Identity Theft, Other Crime, and Terrorism. But in these United States, there is a balance to be struck. Then it is also said that the Price of Freedom is a Loss of Privacy. In this gloomy world view, we can't even be trusted with information about ourselves.

Genealogists are not anti-privacy. On the contrary, my experience has been that genealogists are keenly aware and respectful of the privacy implications of their work. So as we push to keep records open, we should recognize and avoid overbroad openings of law. For example, it's almost never necessary to have the Social Security Number of a living person. We should support efforts to redact that type of information from records open to the public. We should educate the public and others in our vocation about the appropriate use of confidential information. We should remove inappropriate information from our published works.

We should learn, understand, and use the open records laws. We should learn and understand the privacy laws. And we should participate in events like Sunshine Week.

The Sunshine Week website has a host of information that may be useful to genealogists. Some of the best resources are found on the FOI News page. I especially like the State FOI News put out by the Freedom of Information Center of the University of Missouri School of Journalism.

[Note that sometimes genealogical records are managed under different rules, and not the generic information statutes.]

I wrote about the basics of FOIA last August. I'll have more to say about FOIA and similar state laws as a genealogical research source over the next few days.