Records of births, deaths and marriages may be slipping away from public access in states interpreting federal law to require closure.
From the Winter 2006 issue of The News Media & The Law, page 21.
By Corinna Zarek
A federal law intended to prevent terrorists from obtaining fraudulent identification documents is being touted as the basis for South Dakota’s refusal to release vital statistics records to the public.
The state Department of Health, citing the federal Intelligence Reform and Terror Prevention Act of 2004, is shielding certified birth and death certificates, marriage licenses and divorce records. Certified copies of vital records are required for government-issued identification, such as passports, and that, coupled with concerns about identity theft and fraud, fueled changes to South Dakota’s vital records laws.
“This legislation balances access with growing fraud and security issues,” said Kathlene A. Mueller, administrator of the South Dakota Data, Statistics and Vital Records office. “South Dakota wanted to take steps to protect certified copies of our vital records.”
South Dakota is not alone among states shutting off public access to these documents in the name of national security. About 13 states recognize a public interest in vital records, granting unfettered access to them, while other states allow limited access, withholding only certain personal information.
“If you shut off access entirely to these records, it’s a pretty big hit at the foundation of open government,” said Dave Bordewyk, executive director of the South Dakota Newspaper Association. “These types of records are cornerstone public records in our society. We understand the concerns that go along with identity theft and homeland security, but at the same time we have to strike a balance and protect access to government information because if we don’t, ultimately we lose — all of us lose.”
Part of the reason behind South Dakota’s new law, which went into effect July 1, is the federal Terror Prevention Act, Mueller said. The act requires, among other things, that the federal secretary of Health and Human Services establish requirements for “proof and verification of identity” as a condition of issuing a birth certificate, requiring “additional security measures” to issue a birth certificate for someone who is not the applicant. Non-official birth records can still be issued at a state’s discretion, the law states. The Congressional Research Service noted that “federal pressure to unify the standards” may cause the states to require requesters to meet the stricter federal guidelines and stop issuing non-official birth certificates altogether.
While the Terror Prevention Act addresses identity theft concerns, it limits its focus primarily to drivers’ licenses, Social Security cards and birth certificates, and does not specifically address marriage or death records. The state Department of Health used the national law as a starting point to further protect certified copies of all of the state’s vital records, Mueller said. She declined to comment on which sections of the federal law the health department considered in introducing the measure or how the department determined that this action was necessary.
“I think they’ve overstepped the bounds in interpreting the new law,” Bordewyk said. “They’ve continued to say, ‘We have to do this, the feds are requiring it,’ and we have yet to have them provide us with specific information on it. I believe they are using that as an excuse. We’re not going to give up on this. It’s too important an issue in our state.”
Among the states granting public access to birth, death and marriage records are California, Massachusetts, Ohio, Tennessee and Washington. Some states, like Colorado, will grant access if a requester has a “direct and tangible interest” in the records, or a “significant legal relationship” with the person who is the subject of the record. Others, like New Jersey, will allow the general public access to informational copies of vital records and require proof from the subject of the record for a certified copy.
South Dakota adopted both the “direct and tangible interest” and informational copy approaches, Mueller said, for requesters who complete an application and provide identification. “The department or authorized local registrars shall upon receipt of an application issue informational copies to any applicant of any vital record,” the vital records law reads. But requesters looking for certified copies must have a “direct and tangible interest” in the records, Mueller said, declining to explain how the state defines the phrase. While South Dakota’s compromise to provide records to persons who fit that description may be better than no access at all, Bordewyk’s stance is that “if the records are going to be open, they should be open to all.”
Indiana lawmakers briefly considered closing birth and death records this session. Republican Rep. Bob Cherry said the bill he introduced is now dead, but it would have allowed genealogists and the media limited access — they would be cut off from cause-of-death information. “I’m not against people getting vital records, but there are some concerns for the possibility that some information might be accessible for identity theft purposes,” Cherry said. He had neither asked for nor received support for the measure, which he introduced in response to a constituent’s concerns, before it was abandoned, he said.
The most noticeable impact of South Dakota’s new law has been that requesters can no longer obtain the lists of people who apply for marriage licenses or other vital notices that newspapers previously obtained and printed as part of the public record, Mueller said. These records are also widely used by genealogists who say their shrinking access creates a problem for keeping historical records, said Joy Fisher, the state’s genealogy coordinator.
Mueller said although lists are no longer available, the same information is provided in informational or certified copies. The problem, Bordewyk says, is that requesters need to know the specific identities of the parties and a general range of the date of the vital event in a request, and can no longer simply get a list of all the vital events that occurred within a given period. This makes it difficult for newspapers to provide the public with the monthly record and also to fully investigate matters of public health, he said.
It also can make researching historical events more difficult, if not impossible. Cutting off access to records that may have current security implications may cut off access to records that would serve a far more helpful purpose in the future. “We don’t know the ways in which historical records can become terribly important. It’s impossible to predict what in five years will become important — that’s the problem with this legislation,” said Charles Davis, the director of the Freedom of Information Coalition at the University of Missouri in Columbia, Mo.