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.

Genealogy Law Quiz Answers

The fall semester will be over soon at Pacific McGeorge School of Law, so I thought I'd practice for the grading season with the quiz that appeared here a couple of days ago. BTW, every one who tried it got a passing grade. Here's the "model answer":

Copyright Infringement

The first claim against Delia is Al and Bert's action for copyright infringement. The first issue here is whether Al or Bert or both of them own the copyright in the diary in order to permit them to sue for copyright infringement. The diary was written by their mother. From what we can tell, the diary was never published before Delia got her hands on it. Likewise, from what we know, there is no evidence that a copyright was ever registered for this work.

The Copyright Act provides that copyright protection subsists in original works of authorship fixed in any tangible medium of expression. The copyright in a work of authorship immediately becomes the property of the author. It is not necessary to publish the work or register the copyright.

Thus, Delia's grandmother owned t he copyright when she wrote the diary. Copyrights may be transferred or sold. We are not told whether Delia's grandmother transferred the copyright during her lifetime. Assuming, therefore, that she did not transfer it during her lifetime, the copyright could pass as part of her decedent's estate. That is what most likely happened here.

We are not told whether Grandma had any heirs other than Al and Bert, or whether she had a will. In any event, it is reasonable to assume that Al and Bert were her heirs and that they became owners of the copyright at her death.

We do not know when the diary was "created." If it was created on or after January 1, 1978, then the copyright protection lasts for 70 years after the death of the author. Certain works copyrighted before January 1, 1978 may have copyright protection for as long as 120 years depending on the circumstances of their registration or renewal. We therefore may assume that Grandmother's copyright is still "good" and owned by Al and Bert.

The fact that Delia had physical possession of the diary does not affect the ownership of the copyright. (Query whether when Al said to Delia, "Help yourself to anything in [the trunk]," not being aware of the diary, he intended to make a gift of any of his property in the trunk, including the copyright to the diary. Answer: this is probably ineffective to transfer the intangible property such as the copyright).

The next issue is whether Delia infringed the copyright to the diary when she published a portion of it on her blog. Copyright infringement occurs when a copyrighted work is published without t he permission of the owner. However, the doctrine of "fair use" is a limitation on the rights of the copyright owner. Section 107 of the copyright law sets forth four factors to be considered in determining whether or not a particular use is fair:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

In Delia's case the purpose and character of the use was non-commercial. A court presumably could consider that a purpose of her use was vengeance and that she acted in anger toward her relatives, which would tend not to favor "fair use."

The nature of the copyrighted work in Delia's case likely favors a finding of "fair use." The work is her grandmother's diary, given to her by her uncle, who didn't even know he had it.

Another factor tending to favor "fair use" in this case is the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Delia used but one paragraph of a diary that had been kept "for many years."

Finally, with respect to the effect of the use upon the potential market for or value of the copyrighted work, it is unlikely that Delia's use of the one paragraph damaged in any significant way. We have no reason to believe that there exists very much of a market for Grandma's diary or that there is any significant value to be had for Grandma's diary from anyone except the parties here themselves.

As a result of the foregoing analysis, "fair use" is likely a strong defense for Delia.


Defamation

To create liability for defamation, there must be (1) a false and defamatory statement concerning another person; (2) an "unprivileged" publication of that statement to a third party; and (3) negligence or some greater fault on the part of the person making the statement. The wronged party must suffer some damages or in some cases, need not suffer particular damages where the statement is "defamatory per se."

Al's Claim of Defamation

Al must show that Delia published a false and defamatory statement about him and that the publication was unprivileged. The statement that "My sons have been nothing but woe to me," could be deemed defamatory in that a statement by a mother that her sons have been "woeful" tends to harm the reputation of the sons by lowering them in the estimation of the community. But this is probably not defamatory per se, so Al must show some special damages from publication of the statement. For instance, Al might show that his business was damaged because people did not want to deal with someone who was not nice to his mother. Of course, Al must also show the statement is false. We have no information abut that.

The statement that "[Al's] a thief and a liar," is defamatory per se and Al need not show any special damages as a result of publication of that statement. He, however, must show that it is false.

Bert's Claim of Defamatiom

See above for discussion of the statement, "My sons have been nothing but woe to me." Bert will also claim that the statement "Bert is worse" is defamatory in that it makes him out either as a worse "thief and liar" than Al or even worse than "a thief and liar." In either circumstance, the statement is defamatory per se. Of course, he must show that the statement is false.

Bert will also claim that the statement that "Bert's wife, Catherine, is a sl**," defames him in that "sl**" will be clearly understood to mean "slut," and he will be harmed in his reputation by the innuendo that he consciously or unknowingly married a woman of low virtue. This statement is not defamatory per se, as to Bert and he will have to show some special damages. Likewise, he must show that the statement is false.

Catherine's Claim of Defamatiom

Of course, the statement that "Bert's wife, Catherine, is a sl**," if false, is defamatory per se as to Catherine. She need not show any special damages.

Invasion of Privacy

Al's claim

Al may claim invasion of privacy on two grounds: (1) public disclosure of private facts; and (2) publicity placing in him in a false light to the public. Concerning the first, one who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, (b) is not of legitimate concern to the public, and (c) is publicized without permission. Al will argue that the details of his relationship with his mother constituted private facts, the disclosure o f which was highly offensive, and not of legitimate concern to the public. We have no reason to believe that Al is a public figure, so generally speaking, his relationship with is mother indeed would be a private matter.

As to Al's second ground for invasion of privacy: Giving publicity to a matter concerning another that places the other before the public in a false light is an invasion of privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. Al will claim that Delia's disclosure of his mother's sentiments about him placed him in a highly offensive false light. However, Delia may not have had knowledge of the falsity of Grandma's statements. On the other hand, this very lack of knowledge on Delia's part will work against her. By publishing the statements out of anger and making no attempt to discover whether they were true or not, Delia has acted in reckless disregard of the truth or falsity of the statements. On that basis, she may be held liable.

Bert's Claim to Invasion of Privacy

Bert's claim to invasion of privacy on the basis of "false light" is the same as his brother Al's. Bert's claim to invasion of privacy on the basis of public disclosure of private facts is also the same as Al's. But Bert has an additional claim: that the disclosure that Delia is not his biological daughter is an invasion of privacy. This disclosure would be highly offensive to someone wishing to keep it private and is not of legitimate concern to the public. The final element is that the disclosure be made without permission. Since it was Delia who was adopted and Delia who made the disclosure, may she argue successfully that she was entitled to make this disclosure? Answer: Just because Delia was involved in the private facts does not give her a right to disclose it as it affects her parents.

Catherine's Claim to Invasion of Privacy

Catherine's claim to invasion of privacy is both a "false light" claim and a "disclosure of private facts" claim. The false light claim is based on the publication of the statements that "Bert's wife, Catherine is a sl**," and "I know she had an affair." Catherine's "disclosure of private facts" claim is the same as her husband Bert's.

Law and Genealogy--A Quiz

One afternoon, Delia, a family historian, decided to rummage around her uncle Al's attic. She came across a locked trunk that she recognized as having belonged to her grandmother. Delia asked Al if she could see what was in the trunk. Al, knowing of his favorite niece's obsession with genealogy, said, "Sure. Help yourself to anything in it." Al, the older of two brothers, had been his mother's executor, but had not bothered to look into the trunk.

Delia found many of her grandmother's things in the trunk, but what most interested her was a diary her grandmother had kept for many years. Delia took the diary and began to read it.

At one point, Delia's grandmother had written:

My sons have caused me nothing but woe. Al is a thief and a liar. The only reason I named him my executor is that his brother Bert [Delia's father] is worse. Bert's wife, Catherine, is a sl**. I'm sure she had an affair--Delia is not Bert's natural-born daughter.

Delia was devastated by what she read. She had always suspected that Bert was not her real father. Now she thought she knew the truth. [In fact, Bert and Catherine had adopted Delia. Both were faithful to their marriage vows].

Angry that this secret had been kept from her, Delia published this portion of her grandmother's diary on her blog for an edition of the Carnival of Genealogy on "Uncovered Family Secrets."

When Delia's uncle and parents discovered the publication of the diary, they were outraged. Al and Bert are now suing Delia for copyright infringement. Al, Bert, and Catherine are all suing Delia for defamation and invasion of privacy.

Discuss the viability of the claims against Delia.

More Genealogical Law: Invasion of Privacy

We've talked about defamation, but a far more serious issue for genealogists is "invasion of privacy."

The law generally recognizes four distinct "wrongs" that may constitute "invasion of privacy:" (1) intrusion into private matters; (2) public disclosure of private facts; (3) publicity placing a person in a false light; (4) misappropriation of a person's name or likeness. Each of these generally refers to conduct that is "highly offensive to a reasonable person."

Intrusion into Private Matters

This form of invasion of privacy may be a physical intrusion into a place where a person reasonably expects privacy, or it may be an unreasonable prying into a person's private affairs. Entering into someone's dwelling, or hotel room, or backyard without permission would be an invasion of privacy. Going through someone's trunk or locker without permission likewise would constitute an invasion of privacy. Wiretapping, eavesdropping, peeping, all are invasions of privacy, even if nothing is overheard or observed.

Reading someone's diary or examining their medical records without permission would be an invasion of privacy. Getting private information about a person from someone who is not authorized to reveal it would be an invasion of privacy where it is known that the revealer is without authority.

Repeated telephone calls or visits to someone who has expressed a desire for no calls or visits is an invasion of privacy.

Note that in this first form of invasion of privacy, there need not be any publication or use of information.

Keep in mind that the dead have no privacy rights and that which has already been made public cannot support a claim of invasion of privacy. A person must have a reasonable expectation of privacy and must act to keep his or her affairs private in order to make a successful claim of invasion of privacy.

Genealogists are not private detectives, and being generally decent people, I don't imagine that they'd be eavesdropping, reading someone's diary, or making multiple harassing telephone calls in pursuit of genealogical information.

Public Disclosure of Private Facts

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, (b) is not of legitimate concern to the public, and (c) is publicized without permission. Now this is an area in which genealogists could get into some trouble.

There is no liability for merely giving additional publicity to information that is already public. So, for example, it generally would not be an invasion of privacy to publish facts about someone's life that are matters of public record, such as the date of his birth [but see below], the
fact of his marriage, his service in the military, the fact that he holds some professional or occupational license, or that he graduated from a particular school.

Recall that there can be no invasion of privacy concerning matters that are already public and that a person must have a reasonable expectation of privacy in the matter. Also, the disclosure must be "highly offensive to a reasonable person."

I would caution that this area is constantly evolving. Ten years ago, it was easy to say that a person had no reasonable expectation of privacy in the fact of his birth on a certain date or who his parents were. Today, however, with some states and local jurisdictions making birth and death records confidential, it's no longer clear that a person in such a jurisdiction doesn't have a reasonable expectation of privacy in this information. But consider that under the law most places, the publication of private facts must be "highly offensive." Depending on how it is presented, the publication of a date of birth might fall short of that test.

With respect to genealogy, consider, for example, that the placement of a child in a family due to a "non-paternity event," such as adoption, may be considered private by a family even where adoption records are not highly restricted by the state. [The fact that a child is in a particular family is a public fact--how the child got there might be a private matter].

Publicity Placing A Person in a False Light

Giving publicity to a matter concerning another that places the other before the public in a false light is an invasion of privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

This wrong has things in common with defamation, but the matter publicized need not be defamatory. The American Law Institute says that invasion of privacy in this form exists "only when there is such a major misrepresentation of [a person's] character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable [person] . . . ."

In this wrong, it would be possible to liable for, for example, misrepresenting someone's race, without that being defamatory. It would be possible to negligently commit this wrong by, for example, confusing one person for another. It's also possible to commit this wrong with facts that are individually true, but out of context.

Misappropriation of a Person's Name or Likeness

This form of invasion of privacy is committed by one who appropriates to his own use or benefit the name or likeness of another. In some states, this is limited to commercial use; in other states, the appropriation need not be for commercial purposes. Here's another area where genealogists can fall into traps.

Suppose you use a photograph on your genealogical website without the consent of the persons depicted in that photograph. This use may constitute a misappropriation of those persons' names and likenesses, if you intend to benefit from that use.

This may seem similar to the "right of publicity" discussed here the other day; however, this is not so much about the commercial aspects as it is about "the right to be let alone." Also, since this is about privacy and not publicity, this right is not inheritable, nor does it apply to the deceased.

So that's a sketch of the law on invasion of privacy. Ready for a short quiz? Okay, we'll wait a day or so!

Privacy, Public Records, and Genealogy

The beginning of a new year typically brings the effective date of new laws in many states. In the current era, many of these laws are intended to address privacy, identity theft, and security issues. Nobody will be surprised that on such important issues, legislators sometimes overreact. On the other hand, there are sometimes unintended consequences of well-intended laws.

This year, several states have enacted laws concerning the management of public records that contain Social Security Account Numbers (SSAN). I've reviewed a few of these laws and generally I think they're on the right track. For example, in Arkansas, it's now illegal to publicly post or display an individual's SSAN or to require a person to transmit his or her SSAN over the Internet without encryption. This is a sensible approach to identity theft prevention (although the potential downside in the near term for public agencies and genealogical researchers is how to deal with existing public records that contain SSANs). Hawaii has a similar law that became effective on Monday. In other states, like Wisconsin, recently enacted laws require businesses and governments to notify consumers and citizens when there has been a breach of private data that creates a material risk of identity theft. That, too, is a sensible approach to a vexing problem.

An approach that has little to commend itself is the restriction of access to birth, marriage, and death records. For nearly 400 years in America, these records have been regarded as open to the public. In the 17th century, these records were maintained by churches and became state records near the end of the nineteenth century. The theory was that the community had a right, an obligation, and a need to know who was born (when and to whom), who was married (again, when and to whom), and who died (when, how, and where). In fact, it is apparent that the community's access to this information is important to building and maintaining a sense of community and a sense of common security.

Individual privacy is cited along with crime prevention as justification for restricting access to vital records. But each birth, marriage, and death has significant public implications. And these days, there are very few cases of identity theft by birth certificate for the reason that there are simpler ways to do it.

Now I can understand why states might not want to make actual, official documents available on an unrestricted basis. California watermarks vital records as "Unofficial Copy," which renders the document valueless for most commercial or official purposes. This makes sense. But every state should make available, at a minimum, a register of vital information containing complete names, dates, and counties. There simply is no reason not to do this.

On the other hand, there usually is no reason to include a SSAN in the public portion of most records. Overuse of the SSAN by government and business is the true privacy and security threat. We all can improve our privacy and security by safeguarding important personal information such as our SSAN.

Some states have found the right balance. And from time to time, I'll single out the rational approaches for mention here.